Urgent
Chamber Application
CHIGUMBA
J:
"The
power of the lawyer is in the uncertainty of the law."
The
law is subject to interpretation, especially where it is not clear.
Ordinary members of the public are usually not trained in the art of
interpreting the law. They rely on the legal practitioners of their
choice who practice this skill on a regular basis.
On
1 December 2014, an application for stay of execution was placed
before me via the urgent chamber book. A preliminary perusal of the
interim relief being sought revealed that the applicant was
petitioning the court to order the Sheriff of Zimbabwe to withdraw
the notice of seizure and attachment and the notice of removal in
case number HC7533/13 which had been served on the applicant on 28
November 2014. Removal was due to take place on 3 December 2014.
The
applicant was also seeking an order that execution of the writ in
that case be stayed. The terms of the final order sought were similar
to those of the interim relief sought, the only distinction being the
addition of the words “permanently stayed”, to the terms of the
final order. A reading of the applicant's founding affidavit
revealed that the writ of execution which the applicant was seeking
to stay had been issued pursuant to the registration of an order of
the Labour Court for purposes of execution by this court.
The
question that immediately came to my mind was whether, by virtue of
having registered an order of the Labour Court for purposes of
execution, this court had supplanted, or usurped, all and any other
powers that the Labour Court had, to deal with this matter?
In
my mind, the answer was an unequivocal NO.
Legal
practitioners, have, with regrettable intransigence, ignored the
relevant law, at their own and their client's peril, or actively
exploited this seemingly grey area, for a very long time. While it is
correct that the High Court has inherent power to regulate its own
process, there is nothing in the High Court Act [Chapter
7: 06]
or the High Court Rules 1971, which justifies usurping the powers of
the Labour Court, in those instances where the Labour Act [Chapter
28:01]
provides a suitable viable, and satisfactory remedy.
It
is my view that the mere registration of Labour Court orders by this
court, for purposes of execution, does not automatically remove
labour matters from the realm of the Labour Act[Chapter
28:01],
and thrust them under the auspices of this court's inherent
jurisdiction. The time has come for the Legislature to take away the
power of lawyers to exploit this apparent uncertainty in the law. In
my view the solution is simple. Give the Labour Court its own
enforcement mechanism.
Mr
Oliver
Chirongoma
deposed to the founding affidavit on behalf of the applicant. He
averred that the first respondent was a former employee of the
applicant, who after protracted litigation in the Labour Court
registered his Labour Court judgment as an order of this court for
purposes of execution. On registration of the order of the Labour
Court order, this court issued a writ of execution in February 2014,
for recovery of US$46,800-00 in damages, as well as costs of suit on
a higher scale, and interest at the prescribed rate. Further sums
were due in respect of back pay due to the first respondent from as
far back as August 2005 to December 2008, January 2009 to July 2009,
fuel allowances, cafeteria, telephone housing and school fees
allowances. All in all, the applicant owed the first respondent
US$38,814-50 for back pay, US$46,800-00 in damages, and US$45,646-04
for interest, a total of USD$131,261-43 as at the first of October
2014.
In
the founding affidavit, the applicant averred that the first
respondent has a tax liability of US$65,204-34, to the third
respondent, the Zimbabwe Revenue Authority (ZIMRA), in terms of the
Income Tax Act [Chapter
23:06]
and the Finance Act [Chapter
23: 04].
It was averred further, that the first respondent had been advised of
its obligation to the third respondent by the applicant, in a letter
to him dated 22 October 2014. The applicant waxed lyrical about how
it was obliged to deduct relevant taxes from earnings and remit them
to the third respondent, failing which the third respondent would be
entitled to pursue the applicant for payment of the taxes by way of
criminal prosecution. Paragraph 9 of the applicant's founding
affidavit contains the curious averment that the applicant has no
other relief save the order prayed for, and will suffer irreparable
loss and harm should execution proceed.
A
certificate of urgency signed by Tarisai
Mutangi
of Messrs Donsa-Nkomo & Mutangi legal practitioners, accompanied
the founding affidavit. In that certificate, the matter was certified
as urgent for the reason that the second respondent, the Sheriff, had
attached and intended to remove in execution, five motor vehicles and
a set of leather sofas belonging to the applicant, and that removal
of this property was due to take place on 3 December 2014. Mr Mutangi
alluded to the fact that the sum of US$32,000-00 which was intended
to be recovered by the first respondent was a sum which was due and
owing to the third respondent for taxes, and that such sum was not
recoverable from the applicant, by the first respondent. The first
respondent was accused of using a 'coercive' method of recovering
money which was not due to him, that of attaching the applicant's
property and threatening to have it sold in execution.
Finally,
I was asked to stay execution of the writ pending determination of
whether or not the first respondent is entitled to proceed with
execution.
If
the applicant had applied its mind to the pertinent question of which
court would then have to adjudicate on this dispute of what the first
respondent was entitled to recover or not recover, it would have been
guided accordingly in terms of which court to approach for relief. As
it is, the applicant adopted the pedantic approach that, just because
the writ of execution was issued by this court, the only remedy
available to it lay with this court.
The
question that arose for determination before me was whether the
applicant had any other suitable and satisfactory alternative remedy
available to it, in which case it could not be heard by this court on
an urgent basis.
My
preliminary view was that the applicant had other suitable and
satisfactory remedies in terms of the Labour Act, and that
consequently, the requirements of urgency had not been met.
I
proceeded to endorse the face of the application with the words “not
urgent”.
On
3 December 2014, a letter addressed to my assistant was served in
chambers by counsel for the applicants. In the letter, the legal
practitioners proceeded to advise my assistant that they were not
happy with the endorsement of lack of urgency, because they had not
been heard in oral argument. They attached a set of heads of
arguments, and in their letter instructed my assistant to place the
matter for hearing before another judge or before me, whichever
appeared expedient. The legal practitioners, in their wisdom, advised
my assistant that “the application is therefore urgent on the basis
that nothing short of an order of this honorable court will stop the
Sheriff's scheduled removal of the attached goods”.
Aside
from the ethical considerations of addressing my assistant directly
on questions of law, or of having a matter that had been heard and
determined by one judge placed before another judge for re-hearing,
and the attendant procedural irregularities that are implied by such
a course of action, the implied lack of knowledge of the Labour Act
and its attendant remedies persuaded me to revisit my preliminary
view, and to set the application down for oral arguments on the
question of whether the requirements of urgency had been met.
I
was fortified in this view by Order 32 Rule 244 of the High Court
Rules 1971 which gives judges the discretion to invite interested
parties to make representations on the question of urgency.
Further
I was guided by the persuasive authority, of the dicta in the case of
Church
of the province of Central Africa v
Diocesan
Trustees,
Diocese
of
Harare
where
this court said the following:
“…while
normally a court does not have jurisdiction to interfere with its own
judgments because, in relation thereto, it is functus officio,
it does have such jurisdiction over orders made in interlocutory and
procedural matters…The endorsement that the matter is not urgent
was made on a consideration of the papers without hearing any oral
argument by the parties. It was the prima
facie view
of the matter as regards the issue of urgency. This court cannot be
functus officio
in
such circumstances. Had the parties been heard orally and a
determination made thereafter, such determination would be consequent
upon full ventilation by the parties on the pertinent issue. In my
view, the court would then become functus
officio.”
The
first respondent filed an opposing affidavit, on 3 December 2014. He
attached a copy of the deed of settlement entered into by the
parties, dated 2 July 2014. In terms of that deed, the parties agreed
that a sum of US$163,346-73 would be paid to the first respondent by
the applicant, in four tranches, from 2 July 2014 up to 1 October
2014.
After
hearing both applicant and first respondent, on 5 December 2014, it
was ordered that the requirements of urgency had not been met, that
the applicant had other satisfactory remedies in terms of the Labour
Act, and that the matter be struck off the urgent chamber book with
costs on an ordinary scale.
On
the same date, the applicant's legal practitioners addressed a
letter to me in which they requested that I supply them with written
reasons for finding that the matter was not urgent, as they intended
to appeal against that finding.
In
order to save time, I instructed my assistant to telephone the
applicant's legal practitioners and advise them to comply with the
provisions of section 43 of the High Court Act. I have now been
served with a chamber application for leave to appeal, by the
applicants.
In
considering this application, I came to the considered view that it
was necessary to elucidate the reasons why I held the view that the
requirements of urgency had not been met in the application for stay
of execution. The same reasons would be of assistance in the
determination of whether leave to appeal should be given to the
applicants. I will deal with the requirements of urgency first, then
address the question of whether leave to appeal should be granted.
The
test for urgency is settled. It is so settled as to be cast in stone.
One wonders why legal practitioners continue to grapple with the
requirements of urgency, and why they continue to ill advise their
clients, resulting in a waste of the court's time and a
corresponding waste of resources.
It
has been held that:
“Applications
are frequently made for urgent relief. What constitutes urgency is
not only the imminent arrival of the day of reckoning; a matter is
urgent if, at the time the need to act arises, the matter cannot
wait. Urgency which stems from a deliberate or careless abstention
from action until the deadline draws near is not the type of urgency
contemplated by the rules.”
See
.
It
has also been held that:
“For
a court to deal with a matter on an urgent basis, it must be
satisfied of a number of important aspects. The court has laid down
guidelines to be followed. If by its nature the circumstances are
such that the matter cannot wait in the sense that if not dealt with
immediately irreparable prejudice will result, the court can be
inclined to deal with it on an urgent basis. Further, it must be
clear that the applicant did on his own part treat the matter as
urgent. In other words if the applicant does not act immediately and
waits for doomsday to arrive, and does not give a reasonable
explanation for that delay in taking action, he cannot expect to
convince the court that the matter is indeed one that warrants to be
dealt with on an urgent basis…”
See
And,
In
my view, which I previously expressed in the case of Finwood
Investments Private
Limited
& Anor v
Tetrad Investment Bank Limited & Anor
,
in order for a matter to be deemed urgent, the following criteria,
which have been established in terms of case-law, must be met:
A
matter will be deemed urgent if:
(a)
The matter cannot wait at the time when the need to act arises.
(b)
Irreparable prejudice will result, if the matter is not dealt with
straight away without delay.
(c)
There is
prima facie
evidence that the applicant treated the matter as urgent.
(d)
The applicant gives a sensible, rational and realistic explanation
for any delay in taking action.
(e)
There is no satisfactory alternative remedy.
The
need to act arose for the first time when the writ of execution was
issued and the applicant's goods were attached in execution. The
parties in their wisdom then decided to enter into a Deed of
Settlement on 8 July 2014. The applicant agreed to pay the first
respondent the sum of US$163,346-73 in total. It is not clear how
that sum is calculated from the face of the Deed of Settlement. The
terms of the Deed of Settlement do not mention the applicant's tax
obligations to ZIMRA. It is clear that the order of the Labour Court
that was registered with this court for purposes of execution is
silent on the parties' tax obligations to the third respondent.
Despite all this, the applicant expressly agreed to pay the full sum
of US$163,346-73 to the first respondent by 1 October 2014. When it
failed to do so, the first respondent caused more property to be
attached pursuant to its writ of execution. To find that the need to
act then arose in December 2014, just because execution was imminent
is in my view not the sort of urgency that is contemplated by the
law.
The
writ of execution attached as Annexure 'A' to the urgent chamber
application shows clearly that there was no mention of taxes in the
calculation of the first respondent's dues by the Labour Court. The
question that arises is, what is the appropriate remedy available to
an applicant in these circumstances. The parties agreed to pay each
other in tranches way back in July 2014 when the need to act first
arose. The applicant waited until 22 October 2014, well after the
fourth and last tranche of payment that had been agreed was due, and
wrote a letter to the first respondent advising it of its tax
liability. No satisfactory or reasonable explanation was proffered by
the applicant as to:
(a)
The reason why the deed of settlement between the parties signed in
July 2014 did not address the issue of the parties' liability to
the third respondent.
(b)
The applicant waited three months from July to October to raise the
issue of tax obligations with the first respondent.
The
applicant did not treat the question of its tax obligations to the
third respondent as warranting urgent address. It did not apply its
mind to this question when the deed of settlement was signed in July.
To have the audacity to approach the court via the urgent chamber
book and demand that other litigants wait while it is heard, does not
cure the failure to act when the need to act arose.
The
first respondent caused the applicant's goods to be attached on 28
November 2014. The attachment and imminent removal of the applicant's
goods did not create urgency. There was deliberate failure to act
when the need to act arose in July 2014 by failing to address the
issue of tax obligations in the agreement between the parties.
Raising that issue now, at the eleventh hour, when removal in
execution is imminent, for the second time, does not place the
applicant within the ambit of the requirements of urgency.
One
of the requirements of urgency is that there be no satisfactory
alternative remedy. It was submitted on behalf of the applicants that
no remedies lie in the Labour Court because the award was registered
as an order of this court, and reliance was placed on the case of
University
of
Zimbabwe v
Jirira
& Ors
as
authority for this proposition.
That
case provides an interesting discussion of the issues on both sides
of the divide. The first thing to note is that in this case, I did
not decline jurisdiction to hear the applicants. I made a finding
that the requirements of urgency had not been met, more specifically
that the applicant failed to act when the real to act arose, and that
the applicant had failed to establish the requirement that there be
no suitable alternative remedy available to an applicant who comes on
a certificate of urgency. It was my view that the Labour Act provided
a suitable and satisfactory remedy in the circumstances of this case.
The
second distinguishing factor is that, in Jirira's
case, the applicant had filed an appeal to the Labour Court against
the arbitral award, which appeal was pending before the Labour Court,
whereas in this case no evidence was placed before me of whether the
applicant had approached the Labour Court at all for determination of
the question of applicant's tax liability to ZIMRA, more
particularly whether, in light of the deed of settlement of July
2014, the applicant's tax liability ought to be deducted from the
amount that the applicant expressly agreed to pay to the first
respondent.
It
is my considered view that the appeal to the Supreme Court has no
merit and is not likely to succeed.
I
am fortified in this view by the litany of distinguishing factors
between the circumstances of this case which is under consideration
and those that were before the trial Judge in Jirira's
case.
The most obvious difference, as previously stated, is that no
evidence was placed before this court, that an appeal had been filed
with the Labour Court, so some of the legal issues that arose in
Jirira's
Case, will
not be applicable here. The question that arose before the Judge of
Appeal in chambers on appeal against the finding of the trial judge
in Jirira's case was that it was submitted on behalf of the
applicants that the learned judge erred in declining jurisdiction and
refusing to consider the merits of the application for a stay of
execution since the arbitral award became an order of the High Court
upon registration in that court and was suspended pending the appeals
which were before the Labour Court. It was submitted that in the
circumstances only the High Court could entertain an application for
stay of execution of the award. The case of Net
One
Cellular
(Pvt) Ltd
v
Net One Employees & Anor 2005
(1) ZLR 275 (S), was relied on.
The
argument proffered by the respondents before the Judge of Appeal was
that an appeal against an arbitrator's award is an appeal in terms
of the Labour Act, and is not suspended pending appeal. They referred
the Judge of Appeal to Zimphosphate
v
Matora
& Ors
SC44/2005. The decision in the Net
One Cellular case
(supra),
they argued, was given prior to the introduction of section 92E of
the Act and in Zimbabwe
Open
University
v Gideon
Magaramombe
& Deputy
Sheriff
Harare
N.O
SC20/12
it was decided that it was within the Labour Court's powers to
suspend the execution of an arbitral award. Accordingly, it was
argued on behalf of the respondents that the applicant ought to have
proceeded, in terms of section 92E(3) of the Act, to apply to
the Labour Court for a stay of execution pending appeal which it
failed to do.
It
was submitted, that there appears to be a divergence of legal
authority on the question as to whether or not, on a proper
consideration of section 92E and section 98(10) of the Labour Act, it
can be concluded that appeals on points of law from an arbitrator's
decision in terms of section 98(10) would operate to suspend the
execution of the judgment appealed against. The following cases were
cited in support of this submission: Nyasha
v Dodhill
SC 28/09, Net One Cellular
(supra),
Tel
One (Pvt) Ltd v
Communication
& Allied Services Workers' Union of Zimbabwe 2007
(2) ZLR 262 (H).
As
previously stated, it is this court's considered view that it
cannot be bound by the Supreme Court decision because the
circumstances of this case are substantially and materially different
from those brought before the Supreme Court, on appeal in
Jirira's
case.
In
this case, I made a finding that the requirements of urgency had not
been met because the applicant has other suitable alternative
remedies before the Labour Court. I had in mind specifically the
provisions of section 92C of the Labour Act which provide that the
Labour Court may, on application, rescind or vary any determination
or order.
The
applicant could make a case for the Labour Court to re-visit its
award and vary it, in terms of section 92C(1)(b), on the basis that
it was obtained by a mistake common to both parties.
Neither
party saw fit to petition the Labour Court to explicitly determine
the extent of the tax obligation and to make a finding as to whether
the amount of tax due could legally be deducted from the award in
favor of the first respondent. On application to it, in terms of
section 92C(1)(b), the Labour Court would have power, in terms of
section 92C(3)(b), to suspend the operation of its order pending the
application for variation, and on such terms as to security for the
due performance of its order or variation thereof, as it saw fit.
It
is important to note that the provisions of section 92C must be
invoked on notice to all parties, and that the Labour Court cannot
exercise any of the powers conferred on it by section 92C(1) in
respect of any determination or order which is the subject of a
pending appeal or review.
In
Jirira's
Case
, this is what the Judge of Appeal, sitting alone in chambers, had to
say:
“I
granted the application at the end of the hearing because I was of
the view that, the award having become an order of the High Court
upon registration by that court, the court
a quo
misdirected itself in holding that it did not possess the
jurisdiction to grant the order sought. It
may be that a bench of three Judges of the Supreme Court may come to
a different conclusion but the very fact of a divergence of positions
on this issue of law
is what causes me to conclude that the applicant has established a
prima
facie
right entitling it to the order sought…”.
(my emphasis)
Clearly,
there was a grey area in the circumstances of Jirira's
case.
In
my view, there is no similar grey area in the circumstances of the
case before me.
It
was suggested that a bench of three judges of the Supreme Court
settle the issue conclusively. This case does not fall within the
ambit of the legal principles on which Jirira's
Case
turned. Having said that, I hesitate to decline to give the
applicants an opportunity to test the legal principles on which this
case was decided by way of an appeal to the Supreme Court. Although I
hold the view that the applicant's appeal has no prospects of
success in the circumstances of this case, I am persuaded to grant
the applicants leave to appeal, by the prospect of presenting an
opportunity for the divergence of positions on these issues of the
law to be ventilated. For these reasons, and in the interests of
justice, the application for leave to appeal is granted, with costs
to remain in the cause.
Messrs
Muringi & Kamdefwere,
applicant's legal practitioners
Messrs
Mufuka & Associates,
1st
respondent's legal practitioners
1.
Jeremy Bentham:
2.
2010 (1) ZLR 346 @ 347 G-H to 348A-B
3.
Kuvarega v Registrar General and Anor 1998 (1) ZLR 189
4.
Mathias Madzivanzira & Ors v Dexprint Investments Private Limited
& Anor HH145-2002
5.
Church of the Province of Central Africa v Diocesan Trustees, Diocese
of Harare 2010 (1) ZLR 364 (H)
6.
Williams v Kroutz Investments Pvt Ltd & Ors HB 25-06, Lucas Mafu
& Ors v Solusi University HB 53-07
7.
An unreported HH-2014 case. See also Denenga v Ecobank HH 177-14
8.
SC6-2013
9.
@p4
