Urgent
chamber application
MAFUSIRE
J:
This
was an urgent chamber application for an interlocutory interdict. The
applicant sought an order suspending the execution of a certain writ
pending the determination of its application for leave to appeal to
the Supreme Court that was pending at the Labour Court.
Despite
fierce opposition I granted the relief sought and promised to provide
my reasons in due course. These are they.
The
parties had been involved in protracted litigation since 2007. The
respondents were former employees of the applicant on fixed term
contracts. But even this was in dispute. The respondents claimed the
applicant was still to formally and properly terminate their
contracts of employment. In 2006 a dispute had arisen as to whether
or not the applicant had terminated the respondents' contracts of
employment properly. The dispute had been referred to arbitration. In
August 2007 the arbitrator, one Mr Mutongoreni (“Mutongoreni”),
had ruled in favour of the respondents. The ruling had been, among
other things, that the respondents' contracts of employment had not
been terminated properly; that they had a legitimate expectation that
their contracts of employment would be renewed; that those contracts
of employment would be deemed to have been automatically renewed on
the same terms and conditions with effect from 1 July 2007 and that
up to the date of the arbitration the respondents would be deemed to
be still employed by the applicant.
It
was a period of 2 months from the date of the purported termination
of employment to the date of Mutongoreni's award.
Aggrieved
by Mutongoreni's decision, the applicant appealed to the Labour
Court. Pending the determination of that appeal the applicant applied
to the Labour Court for a stay of execution. That application was
dismissed in May 2010.
Whilst
the appeal against Mutongoreni's decision was pending the
respondents applied for the quantification of the award. The
quantification was done before another arbitrator, Mr Matsikidze
(“Matsikidze”). In March 2010 Matsikidze ordered the applicant to
pay the respondents various sums of money as arrear salaries up to
the date of his quantification. First respondent would receive
US$94,920; second respondent US$46,818-78; and third respondent
US$55,118-48. In addition, the applicant was ordered to pay each of
the respondents various sums of money per month at rates commensurate
with their monthly salaries until the date when their contracts of
employment would have been lawfully terminated.
Aggrieved
by Matsikidze's decision, the applicant appealed to the Labour
Court. It also applied to that court for an order of stay of
execution pending the determination of its appeal. On 12 October 2010
the application for stay of execution was granted.
Meanwhile,
on 30 March 2010, the respondents had applied to this court for the
registration of Matsikidze's award for enforcement purposes in
terms of section 98(14) of the Labour Court Act, Cap 28:01. The
applicant opposed the application. In a judgment of this court by
GOWORA J, as she then was, on 20 October 2010, the application was
granted. The applicant appealed to the Supreme Court. However, it
subsequently withdrew that appeal.
In
May 2011, the Labour Court dismissed the applicant's appeal against
Mutongoreni's decision. But obviously that development had been
superseded by events. On 28 March 2014 the Labour Court handed down
its judgment on the appeal against Matsikidze's quantification. It
dismissed the appeal and upheld the quantification. On 8 May 2014 the
respondents issued out of this court a writ to execute such of the
amounts as they deemed to be due in terms of Matsikidze's
quantification. The total amount inserted in the writ was
US$788,296-21. On 12 May 2014 the fourth respondent, in pursuance of
the writ, attached what the applicant claimed was its entire office
furniture. On 14 May 2014 the applicant applied to the Labour Court
for leave to appeal to the Supreme Court against the Labour Court's
judgment of 28 March 2014 which had upheld Matsikidze's
quantification. The applicant also filed in that court an urgent
chamber application for a stay of execution of Matsikidze's award
which, however, had now been registered as an order of this court in
terms of the aforesaid judgment by the learned GOWORA J. Having no
jurisdiction to regulate orders or processes of this court, the
Labour Court, not unexpectedly, dismissed the application. That was
on 15 May 2014. However, on that same day the applicant filed this
application. I heard it on 20 May 2014. The applicant sought the
following order:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:-
(i)
The writ of execution issued out of this Honourable Court under Case
Number HC2411/10 be and is hereby set aside.
(ii)
In the event that this application is opposed, the applicant's
costs shall be paid by any such respondent as shall have opposed
same.
INTERIM
RELIEF GRANTED
That
the applicant is granted the following relief:-
(a)
The execution of the writ issued under Case Number HC2411/10 be and
is hereby suspended pending the determination by the Labour Court of
the applicant's application for leave to appeal filed under Case
Number LC/H/158A/10.”
On
21 May 2014 I granted the interim order.
Ms
Timba, for the respondents, had taken a number of points in limine. I
had dismissed them all for lack of merit.
The
respondents' first point in limine was that the certificate of
urgency that had been filed in accordance with Order 32 Rule 244 of
the rules of this court had been defective, invalid and therefore
inadmissible. It was alleged that the legal practitioner who had
certified the matter as being urgent had not personally applied her
mind to the matter. It was argued that she had failed to mention some
crucial dates such as when the arbitral award had been registered and
when the writ of execution sought to be stayed had been issued. It
was also contended that she had failed to appreciate that both the
applicant's intended appeal to the Supreme Court and the instant
application were devoid of merit. It was also pointed out that the
certificate of urgency had not been dated.
Regarding
the last point about the certificate of urgency not having been
dated, Mr Girach, for the applicant, explained that it was a harmless
oversight that probably was occasioned by the haste in which urgent
chamber applications are prepared. I condoned the oversight.
A
certificate of urgency in terms of Rule 244 is a condition precedent
to an urgent chamber application being heard on an urgent basis. A
legal practitioner, as an officer of the court, certifies the matter
to be one of urgency. He or she does so from an informed position
having carefully applied his or her mind to the matter. Even though
the judge dealing with the matter will still decide whether or not
the matter is urgent he or she is entitled to rely on the opinion of
the legal practitioner who certifies the matter to be one of urgency.
It is unethical and an abuse of the privilege bestowed on them as
legal practitioners in this regard to mechanically certify matters as
urgent without having properly applied their minds. They actually
risk an adverse order of costs against themselves personally.
However, the duty of the legal practitioner in this regard does not,
in my view, extend to deciding or assessing the merits of the matter.
That is the function of the judge. The duties of a legal
practitioner in relation to certificates of urgency have been
expounded in a number of cases.
In
General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe
Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H) GILLESPIE J
stated, at pp 302 -303:
“Where
the rule relating to a certificate of urgency requires a legal
practitioner to state his own belief in the urgency of the matter
that invitation must not be abused. He is not permitted to make as
his certificate of urgency a submission in which he is unable to
conscientiously concur. He has to apply his own mind and judgment to
the circumstances and reach a personal view that he can honestly pass
on to a judge and which he can support not only by the strength of
his arguments but on his own honour and name. The reason behind this
is that the court is only prepared to act urgently on a matter where
a legal practitioner is involved if a legal practitioner is prepared
to give his assurance that such treatment is required.
It
is, therefore, an abuse for a lawyer to put his name to a certificate
of urgency where he does not genuinely believe the matter to be
urgent. Moreover, as in any situation where the genuineness of a
belief is postulated, that good faith can be tested by the
reasonableness or otherwise of the purported view. Thus, where a
lawyer could not reasonably entertain the belief he professes in the
urgency of a matter he runs the risk of a judge concluding that he
acted wrongfully if not dishonestly in giving his certificate of
urgency.”
The
Supreme Court, in a recent judgment in Oliver Mandishona Chidawu &
Ors v Jayesh Shah & Ors SC12/13, endorsed the approach in the
Zimbank case. At p 6 of the cyclostyled judgment GOWORA JA stated:
“In
certifying the matter as urgent, the legal practitioner is required
to apply his or her own mind to the circumstances of the case and
reach an independent judgment as to the urgency of the matter. He or
she is not supposed to take verbatim what his or her client says
regarding perceived urgency and put it in the certificate of urgency.
I accept the contention by the first respondent that it is a
condition precedent to the validity of a certificate of urgency that
a legal practitioner applies his mind to the facts.”
The
learned judge of appeal quoted the above passage in the Zimbank case
and continued, at p7:
“Whilst
the remarks of the learned judge were not concerned with the validity
or otherwise of a certificate of urgency, they are apposite and
pertinent in that the requirement that a lawyer must apply his or her
mind to the facts of the case is emphasised. In order for a
certificate of urgency to pass the test of validity it must be clear
ex facie the certificate itself that the legal practitioner who
signed it actually applied his or her mind to the facts and the
circumstances surrounding the dispute.”
In
casu, I dismissed the point in limine because I was satisfied that
the legal practitioner who had certified the matter as being one of
urgency had properly applied her mind to the matter. Among other
things, she had clearly articulated the grounds upon which her own
judgment as to urgency had been predicated. She had refrained from
merely regurgitating the details in the founding affidavit. Contrary
to the respondents' assertion, she had expressly mentioned the date
when the writ had been issued even though the failure to do so would
not have been decisive. She had not been required to pass judgment on
the merits of the intended appeal or the merits of the application
before me and she had not done so.
The
next point in limine taken by the respondents was that the
application was fatally defective for want of compliance with Order
32 Rule 227(1)(c). It was emphasised that the rule was couched in
peremptory language. The rule, which is under the section dealing
with the general provisions for all application procedures, reads:
“227.
Written applications, notices and affidavits
(1)
Every written application, notice of opposition and supporting and
answering affidavit shall –
(a)
………………………………………………………
(b)
………………………………………………………
(c)
have each page, including every annexure and affidavit, numbered
consecutively, the page numbers, in the case of documents filed after
the first set, following consecutively from the last page number of
the previous set, allowance being made for the page numbers of the
proof of service filed for the previous set.”
Whilst
the original chamber application filed of record had been
satisfactorily bound and paginated consecutively, apparently the copy
served on the respondents had not. That inevitably caused some
inconvenience during the hearing as it was difficult to refer to
documents by page numbers.
Mr
Girach explained that it must also have been another oversight on the
part of his instructing practitioners. He sought condonation in terms
of Rule 4C.
This
rule, inter alia, empowers a judge, inter alia, to condone a
departure from any provision of the rules in the interest of justice.
Rule
227(1)(c) is undoubtedly one of the rules that classically is meant
for the convenience of the court and the parties appearing before it.
Unless all the sets of papers that have been filed of record for use
during the proceedings are properly paginated and the annexures
properly labelled it may be extremely difficult for the hearing to
flow. It may be difficult to readily draw attention to any particular
document or item.
It
is an important rule. It must be observed. Good reasons must be
proffered for its non-observance. However, the rules are meant for
the court and not the court for the rules. In the instant case I
considered the failure by the respondents to scrupulously follow the
rule in relation to all the sets of papers filed of record as being a
minor infraction especially given the surrounding circumstances. The
urgent chamber application was undoubtedly prepared in extreme haste.
It had been the same application that had wrongly been launched in
the Labour Court and had been dismissed on the same day that it had
finally been filed in this court. Furthermore, it seems it was only
the copy that had been served on the respondents that was offending.
Under the circumstances I did not think that condoning such an
infraction would make justice turn on its head. On the contrary it
would if I were to dismiss the application solely on that basis.
The
next point in limine by the respondents was that the matter was now
res judicata in that the same application had been dismissed by the
Labour Court.
During
the hearing I was advised that the applicant had conceded at the
Labour Court that it had gone to the wrong forum. The Labour Court
had dismissed the application for lack of jurisdiction. It had not
decided it on the merits. Under such circumstances the matter could
not be said to have become res judicata.
Tied
to the issue of res judicata was the respondents' argument that
except for applications for the registration of arbitral awards for
enforcement purposes in terms of section 98(14) of the Labour Act,
this court lacks jurisdiction in all other employment matters as they
are the preserve of the Labour Court in terms of the Labour Act.
Ms
Timba submitted that in terms of Rule 34 of the Labour Court Rules,
SI 59/2006, the Labour Court or a President sitting in chambers may,
on application, order a stay of execution of a decision, order or
determination that has been registered in terms of section 92B(3) of
the Labour Act.
Section
92B(3) of the Labour Act entitles a party to whom a decision, order
or determination by the Labour Court relates, to register it for
enforcement purposes with either the Magistrate's Court or the High
Court, depending on the jurisdictional limits. The state of the law
on this aspect is obviously unsatisfactory in that, among other
things, the Labour Court, whose status the Legislature undoubtedly
elevated to that of a court of first instance in practically all
labour matters, withheld from it the power to enforce its own
judgments. Successful litigants in that court and the other judicial
structures created under it have to be shunted from that court to
this court or the Magistrates' Court for the purposes of enforcing
any orders or decisions made in their favour. Be that as it may, and
in spite of the provisions of Rule 34 of the Labour Court Rules,
which incidentally, is confined to decisions of the Labour Court
itself as opposed to that of an arbitrator as was the case in the
present matter, it is now settled law that the superior courts have
the power to regulate their own processes.
Section
98(15) of the Labour Act provides that where an arbitral award has
been registered with the Magistrates' Court or this court, it shall
have, for enforcement purposes, the effect of a civil judgment of the
appropriate court.
This
court has an inherent jurisdiction to order a stay of execution of
its judgment. There is nothing in the Labour Act or the regulations
made under it that has ousted that jurisdiction. The issue was put
beyond doubt in the case of Dhlodhlo v Deputy Sheriff, Marondera &
Ors 2011 (1) ZLR 416 (H). At pp 422 – 423 GOWORA J, as she then
was, had this to say:
“The
contention by the applicant is that, as a result of the registration,
the Labour Court ceases to have jurisdiction over the judgment and it
cannot control, vary, set aside or rescind the judgment. I think this
is a correct exposition of the law. The effect of the registration
with this court is that only the High Court, barring an appeal to the
Supreme Court, can interfere with the judgment or its execution. This
is because, the High Court, being a court of superior jurisdiction,
has the inherent power to regulate its own proceedings….
Clearly
the import of Rule 34(1) is to permit the stay of any judgment
registered with a court, possibly with inferior jurisdiction to it. I
say 'possibly' because this aspect was not argued before me as
that was not the situation confronting the parties. I am therefore
not in a position to state with certainty that the rule permits this.
It is an issue that would have to be argued before a court can
pronounce on it. What I can state is that the rule cannot be read as
giving the Labour Court the power to regulate proceedings of the High
Court. To the extent that it appears to do so, the rule is, in my
view, in conflict with the Act and the limited jurisdiction granted
to the court in terms of section 89 thereof.
It
is trite that a judicial officer cannot vary or set aside a judgment
or order issued by an officer of parallel jurisdiction, except in the
case of a rescission of an order granted in default, or in restricted
circumstances in accordance with the provisions of Rule 449 of the
Rules of this court.
As
the applicant rightly argues, if a judge cannot vary or alter aside
an order issued by a judge with parallel jurisdiction1,
how can it be possible for a judge from a lower court [to] have the
power to stay an order issued by a court of superior jurisdiction?
I
cannot conceive of a situation where a court can lawfully interfere
with execution or suspension of a court order issued by [a] court of
superior jurisdiction to its own.
Execution
is a process of the court and every court has the power to control
its own process subject to the rules of court. In the High Court that
power is inherent. See Strime v Strime 1983 (4) SA 850 (C) and
Stumbles & Rowe v Mattinson 1989 (1) ZLR 172 (H).
The
courts in this country have all been imbued with the power to
regulate their own proceedings and therefore no other court can
legally interfere with those proceedings, unless in an appeal or a
review of the proceedings of that other which in any case would have
to be a court of inferior jurisdiction.
In
casu, the Labour Court is not such a court as can review or subject
to appeal the proceedings of the High Court and it ought not to have
stayed the judgment of this court, as that is not within its
jurisdictional power.”
The
Supreme Court, in the case of Ritenote Printers (Pvt) Ltd v A Adam &
Co Anor 2011 (1) ZLR 521 (S), confirmed, at p 525B – E the doctrine
of the inherent jurisdiction enjoyed by the superior courts to
regulate their own processes. Therefore, I dismissed the point in
limine.
The
last point taken in limine by the respondents was that the
application was not urgent. Ms Timba submitted that once the arbitral
award had been registered as an order of this court way back in 2010
it must have been obvious to the applicant that the next stage by the
respondents would be execution. She submitted that the applicant had
itself not treated the matter as urgent. Its appeal against
Matsikidze's quantification had been dismissed by the Labour Court
on 28 March 2014. The applicant had only applied for leave to appeal
to the Supreme Court only on 14 May 2014, which, she submitted, was
outside the 30 day period permitted by the Rules of the Labour Court.
Thus, the need to act had arisen much earlier than the 15th of May
2014 when the urgent chamber application had been launched. Reference
was made to the well-known case of Kuvarega v Registrar General &
Anor 1998 (1) ZLR 188 (H).
I
dismissed that point in limine, firstly because it appeared the
respondents had miscalculated the 30 day dies induciae the applicant
was entitled to in order to file the application for leave to appeal.
14 May 2014 was the 30th
day. Secondly, until the respondents had issued the writ and had
caused the attachment of the applicant's property for the somewhat
staggering amount that was inserted in that writ and which none of
the parties nor any of the courts or quasi-courts had previously
mentioned in express terms, one cannot really say the need to act by
the applicant had arisen earlier.
The
imminent harm for which the applicant sought an interdict had arisen
on 14 May 2014 when the fourth respondent had attached its entire
office furniture and had been poised to return for its upliftment
probably in two days' time. To all the other processes that the
respondents had instituted towards enforcing Matsikidze's
quantification the applicant had mounted appropriate opposition,
albeit without success. The applicant had also instituted processes
of its own to reverse Matsikidze's quantification and one such was
still pending when the writ had been issued. Under such circumstances
it cannot be said that the applicant had been sluggard.
After
the disposal of the points in limine I heard argument on the merits.
Mr
Girach contended strongly that Matsikidze's quantification was
manifestly flawed in principle. He had wrongly determined that the
respondents' contracts of employment had still been running when he
had sat to quantify Mutongoreni's award about three years later and
that those contracts would continue to run indefinitely until the
applicant had properly terminated them. Yet Mutongoreni's ruling
had been that the respondents, whose initial contracts of employment
had been for fixed periods of 12 months only, had had a legitimate
expectation to have those contracts renewed on the same terms and
conditions. Therefore, Mr Girach contended, the legitimate
expectation could only have been in respect of the next 12 months and
not for every 12 month period in perpetuity. He was confident that
the Supreme Court would overturn Matsikidze's quantification. That
made it imperative for the writ of execution to be stayed since the
applicant would inevitably be rendered dysfunctional if its entire
office furniture was auctioned. Any success at the Supreme Court
would then be a pariah victory and any order of the Supreme Court in
its favour would be a brutum fulmen.
On
the other hand, Ms Timba charged that what the applicant sought to
achieve by its application was a re-opening of the merits of the
labour matter that had been conclusively dealt with by the
arbitrators and the Labour Court; that this court had no jurisdiction
to decide the merits of a labour dispute as such jurisdiction is
reposed in the Labour Court only; that the interdict was being sought
pending a non-existent appeal since what was pending at the Labour
Court was not an appeal but merely an application for leave to
appeal, and that, at any rate, that application for leave to appeal
was devoid of merit.
I
granted the order sought because I felt that the applicant's
prospects of success on appeal on the merits were so overwhelming as
to overshadow all the other requirements for an interlocutory
interdict. Contrary to the respondents' contention, the strength or
weakness of an applicant's case on the merits is a necessary
consideration in an application for an interdict: see Networking
Technologies v System Publishers and Anor 1997 (1) SA 391.
I
also felt that the balance of convenience favoured a stay of
execution so that the rights of the parties could properly and
finally be determined by the Supreme Court if the leave to appeal was
granted.
It
was true that what was pending at the Labour Court at the time of the
applicant's urgent chamber application before me was merely an
application for leave to appeal and not the appeal itself. However,
given that there is no automatic right of appeal from a decision of
the Labour Court to the Supreme Court, it is my considered view that
by that application, the applicant had put the appeal process in
motion. The process deserved to be given the chance to run its full
course if the applicant satisfied the requirement for an interdict.
The
requirements for an interlocutory interdict are well known. They are:
1.
that the applicant has a prima facie right that he or she wishes to
protect even though that right be open to some doubt;
2.
that the applicant has a well-grounded apprehension of an irreparable
harm such as would not be cured by damages;
3.
that the balance of convenience favours the granting of the interim
interdict;
4.
that there is no other alternative remedy that is effective;
5.
that the applicant has prospects of success on the merits.
See
Setlogelo v Setlogelo 1914 AD 221; Networking Technologies v System
Publishers and Anor (supra); Flame Lily Investments Company (Pvt) Ltd
v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378; and Universal
Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent And Anor 2000
(1) ZLR 234 (H).
The
above requirements are considered cumulatively.
The
writ issued by the three respondents on the basis of which the fourth
respondent had attached the applicant's entire furniture was for a
whopping US$788,296-21. That was an amount computed by the
respondents themselves. That computation was allegedly on the basis
of Mr Matsikidze's quantification which was itself allegedly on the
basis of Mr Mutongoreni's award.
I
was mindful of the fact that the full merits of the parties'
contracts of employment had not been argued before me, a point Ms
Timba pressed home. Therefore, all I do here is to express my prima
facie impression of the matter, both from the documents filed of
record and the submissions made by counsel. However, even from a
common sense point of view, the amount of US$788,296-31, i.e. more
than three quarters of a million dollars, was manifestly
unreasonable. It was said to be the total due to the three employees.
These were employees whose contracts of employment had only been for
fixed terms of 12 months each. One earned US$2,800 per month. The
other earned US$1,418-42 per month. The last earned US$1,667-73. The
huge amount in the writ was arrived at on the assumption that up to
the day of that writ the respondents were deemed to be still employed
by the applicant. They would remain so until their contracts had
allegedly properly been terminated.
I
agreed with Mr Girach's submissions that it had been wrong for
Matsikidze to have assumed that the respondents' legitimate
expectation to be re-employed that Mutongoreni had referred to in his
award had applied to every year thereafter in perpetuity. The
legitimate expectation must have been only in relation to the year
following the expiry of the respondents' contracts of employment by
effluxion of time and in which Mutongoreni had sat in judgment. Any
period thereafter had not been determined. The extreme absurdity of
the respondents' position was that there would be no end to what
they would perceive to be their continued entitlement in terms of the
contracts of employment. It would mean that even after recovering the
more than three quarters of a million dollars in terms of the writ
they would still come back for more ad infinitum.
Ms
Timba urged that that was so until the applicant had taken it upon
itself to properly terminate the contracts of employment.
It
sounded so wrong.
I
felt the applicant had been entitled to have its case re-looked at by
a superior court. It is trite that a party that is entitled to claim
damages for any wrong done to him or her is obliged to mitigate his
or her damages. It is the law that an employee who has been dismissed
wrongly or otherwise should not just sit back and watch the clock
tick as he or she waits to claim damages. He must look for
alternative employment. His or her entitlement to damages will be
limited to the period he would be expected to have found alternative
employment. What that period is depends on the circumstances of each
case. This position was elucidated by the Supreme Court in Ambali v
Bata Shoe Co Ltd 1999 (1) ZLR 417 (S). At pp 418-419 McNALLY JA said
this:
“I
think it is important that this court should make it clear, once and
for all, that an employee who considers, whether rightly or wrongly,
that he has been unjustly dismissed, is not entitled to sit around
and do nothing. He must look for alternative employment. If he does
not, his damages will be reduced. He will be compensated only for the
period between his wrongful dismissal and the date when he could
reasonably have expected to find alternative employment. The figure
may be adjusted upwards or downwards. If he could in the meanwhile
have taken temporary or intermittent work, his compensation will be
reduced. If the alternative work he finds is less well-paid his
compensation will be increased.
There
are also those, and Ambali is one of them, who seem to believe that
they must on no account look for alternative employment; that so long
as their case is pending they must preserve their unemployment
status; that if they look for and find a job in the meanwhile they
will destroy their claim.
It
cannot be emphasised too strongly that this is wrong. …… [I]f an
employee is wrongfully dismissed his duty to mitigate his loss arises
immediately. If he is offered a good job the day after his dismissal
he must take it, or forfeit any claim for damages. If he is offered a
good job only after he has been unemployed for six months, he must
take it. If in the meantime he has instituted proceedings for
reinstatement, he may continue there, but his claim for damages will
usually then be limited to his loss over the six month period.”
In
casu Matsikidze's award in favour of the respondents was an award
of damages. But it was common cause Matsikidze had in his purported
quantification of Mutongoreni's award taken no account of the
respondents' obligation to mitigate their damages. Mutongoreni may
not have mentioned the need for the respondents to mitigate their
damages. However, whatever Mutongoreni had meant to award the
respondents, it could only be what the law would permit. Matsikidze
could not purport to quantify what the law would not permit. That
issue should properly be determined by the Supreme Court if leave to
appeal was granted. It was on the basis that prima facie the
applicant's case on the merits seemed so robust that I was
persuaded to suspend the respondents' writ to enable the applicant
to put forward their case to a superior court.
Regarding
the other requirements for an interlocutory interdict, I was
satisfied that the applicant had satisfied them all. There was no
question that the property that the fourth respondent had attached
belonged to the applicant. The respondents did not dispute that that
property constituted the applicant's entire office furniture. Thus,
it was given that the applicant had every right to it. The applicant
was a non-profit making organisation that was involved in
collaborative research programmes with the University of Zimbabwe.
The attached assets, according to Mr Girach, constituted the bulk of
its assets. If the property was disposed of in terms of the writ for
the benefit of the respondents and the applicant went on to win on
appeal, the harm to the applicant would be irreparable given that the
respondents seemed to be people of little means. They were still to
get alternative employment more than seven years after the expiry of
their contracts with the applicant. They seemed to lack capacity to
pay back if they eventually lost. There seemed to be no effective
alternative remedy for the applicant if it eventually succeeded.
Coupled with the need to balance competing interests it seemed so
logical that the writ be stayed temporarily. It was for the above
reasons that I granted the interim relief.
Gill,
Godlonton & Gerrans, applicant's legal practitioners
Kantor
& Immerman, first, second and third respondents' legal
practitioners
1.
See Parker v Parker 1985 (2) ZLR 79 (H) at 85A
