URGENT
CHAMBER APPLICATION
MUREMBA
J:
On
16 February 2015 I delivered an ex
tempore
judgment in this matter dismissing this application with costs on a
legal practitioner client scale. Now I have been asked for the
written reasons thereof and these are they.
The
facts of this matter are common cause.
The
applicant and the first and the second respondents are involved in an
arbitration dispute before the third respondent. The arbitration
proceedings started in October 2013 and are still on going. When the
applicant filed this application on 13 February 2015, the hearing of
the arbitration proceedings had been postponed to 16 February 2015
for continuation.
The
background of the matter is that during the course of the arbitration
proceedings and on 29 May 2014 and 8 September 2014, the third
respondent granted two interim awards in favour of the first and the
second respondents. Dissatisfied by the granting of the interim
awards the applicant filed two applications in this court challenging
the awards. The reference files are HC5209/14 and HC750/15. These two
applications are still pending before this court.
The
applicant filed this urgent application for the purposes of having
the arbitration hearing scheduled for the 16th
of
February 2015 stayed pending the determination of the two pending
applications. The applicant is of the view that the outcomes of the
two applications have a bearing on the dispute and as such the
arbitration proceedings ought to be stayed until the two applications
have been disposed of by this court.
On
11 February 2015 the applicant filed an ordinary court application
under case number HC1268/15 seeking the same relief as the present
one.
That
application was served on the first and the second respondents'
legal practitioners on the same day of 11 February 2015 and on the
third respondent on 12 February 2015 at 10:28am. On the same day of
12 February 2015 the applicant's counsel wrote a letter to the
third respondent and this letter accompanied the court application.
The letter was asking the third respondent to give an assurance to
the applicant that he was not going to proceed with the hearing on 16
February 2015 since he had been served with the court application to
stay proceedings pending the determination of the two applications,
HC5209/14 and HC750/15. In that letter, the applicant's lawyers
indicated that if they did not get a response on that day by 4pm from
the third respondent in writing to the effect that proceedings were
not going to continue, they were going to file an urgent chamber
application.
The
applicant's lawyers did not get any response from the third
respondent by 4pm of 12 February 2015. This prompted them to file the
present urgent chamber application on Friday the 13th
of February 2015 in the evening.
I
had to be called from home around 7:30pm to attend to it. I set the
matter down for hearing on Sunday 15 February 2015 at 2pm because I
was not available on Saturday 14 February 2015.
As
the hearing started, I was served with the first and the second
respondents' notice of opposition. As a result, I was not able to
read through the opposing affidavit before the hearing. It being a
Sunday and all the parties being in attendance I decided to hear the
parties and then go through the opposing affidavit later. The third
respondent who is a retired judge of this court who was a self-actor
had not prepared any written response to the application. He made
submissions that as the arbitrator between the applicant and the
first and the second respondents he was not taking any sides, but he
said that he just wanted to shed light on some issues for my benefit.
So he made some submissions during the hearing.
I
started by asking Mr Garabga if he had any points in
limine
that he wanted to raise and he said he had none. So we went straight
into the merits of the matter with the applicant addressing me first.
He
submitted that the application should be granted for the reason that
since the High Court which is superior is now seized with the
applications, the arbitrator ought to stay proceedings until
determinations have been made.
What
emerged from Mr Garabga
was that the letter of 12 February 2015 from the applicant's
lawyers which was addressed to the third respondent asking the third
respondent to give an assurance that he was not going to proceed with
the arbitration proceedings on 16 February 2015 was not served on the
first and the second respondents despite them being interested
parties. I found it a very shameful thing that Advocate Hashiti
insisted that the first and the second respondents had been served
with that letter when they had not been served. There was no proof to
that effect. Even the letter itself does not show that it was copied
to the first and the second respondents.
All
the three respondents indicated that from the time the arbitration
proceedings started, about 5 postponements of the hearing had been
made by consent, but they were all made at the instance of the
applicant. They said each time the applicant sought a postponement it
would engage new lawyers. The other reason was that the applicant
continued to say its key witness one Mr Okeke was not feeling well
and was out of the country. The third respondent indicated that on
the occasions that he granted the requests for postponement for this
reason, he was never furnished with medical proof of the witness'
illness. He said that he recently told the applicant that he now
wanted medical proof of Mr Okeke's illness if he was going to grant
another postponement because they were not making any progress with
the arbitration proceedings. Advocate Hashiti
did
not make any submissions to challenge these averments by the
respondents.
The
three respondents also highlighted that the hearing of the
arbitration proceedings was postponed to 16 February 2015 on 29
January 2015 by consent, and the request for the postponement had
been made by the applicant.
Again
Advocate Hashiti
did not dispute that.
The
first and the second respondents were surprised that the applicant
was now making the present application. To them it was just an
afterthought by the applicant which was meant to delay the
finalisation of the arbitration proceedings.
Mr
Garabga
argued that the matter had been postponed on 29 January 2015 and
there was no reason why the applicant had waited until 11 February
2015 to file the court application and less than 24 hours later to
file the present chamber application. To Mr Garabga
the matter was not urgent at all.
Let
me say this submission on urgency by Mr Garabga
during the hearing of the merits surprised me because naturally, it
should have come as a point in
limine. Earlier
on
he
had said he had no points in limine
that he wanted to raise.
Personally
I had not raised any query on the issue of urgency because it was not
apparent on the face of the application that the matter was not
urgent. The application did not disclose, on the face of it, that the
arbitration hearing had been postponed to 16 February 2015 from 29
January 2015.
Be
that as it may, Mr Garabga
further submitted that since the continuation of the arbitration
hearing was scheduled for 16 February 2015 the application should be
dismissed to allow the parties to appear before the third respondent.
He said since the third respondent is seized with the matter, the
applicant can make his application for stay of arbitration
proceedings before the third respondent.
The
third respondent also made submissions that since he was already
seized with the matter he did not see why the applicant had not made
the application for stay of proceedings before him all along from the
time it made the two High Court applications. He said that if the
applicant had made the application he would have heard the
application and made a ruling on whether or not to grant it. He
further submitted that he had not responded to the applicant's
letter of 12 February 2015 because it required him to respond by 4pm
of the same day yet when that letter was served at his office at
10:28am he was not in the office. He only got to the office at 4pm
and that is when he saw the letter. It was already too late for him
to respond. It was already past the deadline that the applicant's
lawyers had given. He further averred that on that same day he also
received another letter from Mr Nkomo
of Mtetwa & Nyambirai Legal Practitioners also representing the
applicant stating that on 16 February 2015 they were going to seek a
postponement of the hearing for the reason that its witness Mr Okeke
was still unwell. To him the two letters were in conflict.
Having
heard the parties I dismissed the application on the merits since the
parties had mainly addressed me on the merits. I considered the
requirements of a temporary interdict since what the applicant is
seeking is an interim interdict. The requirements are as follows:
(1)
The applicant must prove a prima
facie
right.
(2)
There must be a reasonable apprehension of irreparable harm if the
interdict is not granted.
(3)
There must be no other ordinary adequate or appropriate remedy which
would give the applicant some protection.
(4)
The balance of convenience must be in the applicant's favour.
This
means that the circumstances must be such that the prejudice suffered
by the applicant if the interdict is not granted will be greater than
the prejudice suffered by the respondent if the interdict is granted.
See
the cases of Hix
Networking Technologies v
System Publishers (Pty) Ltd & Another 1997
(1) SA 391 (A) at 3981-399A and Flame
Lily Investments Company (Pvt) Ltd & Another 1980
ZLR 378 (G).
As
correctly submitted by Mr Garabga
and the third respondent there is an alternative satisfactory remedy
that is available to the applicant.
The
remedy is for the applicant to make this application for stay of
proceedings before the third respondent who is already seized with
the arbitration matter.
Despite
the availability of that remedy, the applicant never sought to make
an application before the third respondent from the time it filed the
two applications to this court. This is a case where the applicant
ought to have exhausted that domestic remedy before rushing to this
court with the present application.
Advocate
Hashiti
submitted that they had filed this urgent application because the
third respondent had not responded to the applicant's request not
to proceed with the hearing on 16 February 2015.
For
a matter which had continued to be postponed from the time the two
High Court applications were made I do not see why the applicant did
not make this application before the third respondent. I find no
merit in the course of action that the applicant took.
It
would appear that the applicant would do anything to have the
finalisation of the arbitration proceedings delayed. It waited until
the 11th
hour to make both the ordinary court application and the present
application for stay of the arbitration proceedings. Besides that the
applicant had even tried to manipulate the third respondent by way of
an ordinary letter into giving an assurance that he was not going to
proceed with the hearing. This letter was not even served on the
first and second respondents.
That
was highly unprofessional, unprocedural and improper especially
coming from legal practitioners. As interested parties the first two
respondents deserved to be served.
I
do not think that the applicants really expected the third respondent
to grant the applicant's request without hearing the first and the
second respondents. What the applicant ought to have done was to make
a proper application for a postponement or stay of proceedings before
the third respondent, either in writing or orally, giving the first
and second respondents a chance to respond. No such application can
be made without the other party being given a chance to be heard. It
defeats the principle of the audi
alteram partem
rule.
I
would like to make some remarks on the issue of urgency.
In
the case of Kuvarega
v
Registrar
General & Anor 1998
(1) ZLR 188 at 193 F-G CHATIKOBO J said;
“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 dead line draws near is
not the type of urgency contemplated by the rules.”
In
casu
if this issue had been raised as a point in
limine
I would have struck off the matter from the roll for the reason that
the matter was not urgent.
The
interim awards were granted in May and September 2014. The two court
applications to challenge them were made last year and in January
this year before 29 January 2015. So the urgency arose at the time
the court applications were made. Obviously it dawned on the
applicant at the time of filing the applications that their outcomes
had a bearing on the main dispute. Under the circumstances, I do not
see why the applicant waited until 12 February 2015 to make the court
application for stay of the arbitration proceedings.
Before
that, the applicant had been making requests for postponements of the
hearings for totally different reasons, for instance that its key
witness was ill.
The
question is why were they not raising the issue of the need to stay
proceedings pending the determination of the two court applications?
It
would appear that the application was made as an afterthought, just
to delay the finalisation of the arbitration proceedings.
In
any case the latest arbitration hearing was postponed to 16 February
2015 on 29 January 2015 by consent at the instance of the applicant.
Honestly by that time, the applicant already knew that the outcomes
of the two applications pending in this court had a bearing on the
main dispute. There is no explanation why the applicant asked for a
postponement of the hearing to 16 February 2015 instead of making an
application for stay of the proceedings. That application could have
been made to the third respondent since he is the one who is
presiding over the matter. There was no justification for the
applicant to wait until the 11th
of February 2015 to make the ordinary court application and the 12th
of February 2015 to make the present urgent chamber application. It
is apparent that the urgency was self-created.
It
appears to me that this was just a tactic by the applicant for it not
to appear before the third respondent on 16 February 2015 for the
third respondent had indicated that in the absence of medical proof
to show that Mr Okeke was ill, he was not going to grant another
postponement. This is evidenced by the letter dated 12 February 2015
which was written by Mr Nkomo
of Mtetwa & Nyambirai Legal Practitioners to the third respondent
indicating that on the 16th
of February 2015 the applicant was going to seek a postponement of
the hearing to a further date to enable Mr Okeke who was ill to be
available.
What
is interesting is that the date of 12 February 2015 is the same date
the third respondent was served with the court application for stay
of arbitration proceedings together with the accompanying letter
which was asking the third respondent to give an assurance that he
would not proceed with the arbitration hearing on 16 February 2015.
These were served by Zuze Tawanda Law Chambers, a different law firm.
Zuze Tawanda Law Chambers was representing the applicant for the
first time and it appears that it was not even aware that Mtetwa &
Nyambirai Legal Practitioners were also representing the applicant in
the same matter.
This
confirms what was said by the respondents that the applicant was in
the habit of changing legal practitioners each time the hearing was
postponed.
It
is puzzling that the applicant engaged two different law firms to
represent it at the same time. The two law firms ended up writing
letters with different requests to the third respondent on the same
day. One was asking the arbitrator to stay proceedings pending the
determination of the two High Court applications while the other was
asking for a postponement to enable Mr Okeke to recover.
All
these actions by the applicant show that it was desperate not to have
the hearing of 16 February 2015 proceed.
Despite
the lack of urgency I decided to dispose of the matter on the merits.
The
point being that the applicant has an alternative satisfactory remedy
of making the same application before the third respondent who is
already dealing with the main dispute as the arbitrator. Even if I
had felt inclined to grant the application on the merits I still
would not have granted it for its lack of urgency.
I
dismissed the application with costs on a higher scale. I awarded
costs on a higher scale because this application was frivolous and a
clear abuse of court process.
It
is an application that the applicant could have made before the third
respondent who is already seized with the matter. The applicant was
even aware of that remedy being available to it because it had even
made an attempt to have the third respondent give it an assurance
that he was not going ahead with the hearing on 16 February 2015. It
did this by way of the letter of 12 February 2015. It even wanted him
to do it unprocedurally without the first and the second respondent
being notified and being heard.
Zuze
Tawanda Law Chambers, applicant's
legal practitioners
Garabga,
Ncube & Partners, 1st
and 2nd
respondents' legal practitioners
