GOWORA
JA:
After
perusing papers filed of record and hearing counsel in this matter we
allowed the appeal with costs. We indicated therein that our reasons
would follow in due course. These are they.
The
respondent was formerly employed by the appellant. Sometime in
September 2012, the appellant obtained approval from the Ministry of
Labour to send a number of employees on retrenchment.
The
respondent was one of those affected by the exercise.
On
23 August 2012, the parties agreed a retrenchment package to be paid
to the employees. The appellant, for reasons not germane to these
proceedings, did not pay out.
On
19 March 2014, the respondent, under Case No HC627/14, filed a
chamber application to have the retrenchment package thus agreed
registered by the High Court in Bulawayo. On 3 April 2014, the High
Court issued an order against the appellant as follows:-
1.
The Registrar of the High Court is directed to register the
Retrenchment Award made in favour of the applicant as an order of
this court.
2.
The respondent shall pay to the applicant the sum of US$34,318.52 due
to him in terms of such award.
3.
The respondent shall pay the costs of this application.
The
respondent then caused a writ of execution to be issued by the High
Court. The Deputy Sheriff executed the writ and attached properties
belonging to appellant in satisfaction of the debt.
Upon
service of the writ, the appellant attempted negotiation with the
respondent to stay execution of the writ to no avail. On 9 May 2014,
seven days after being served with the writ, the appellant filed an
urgent application to have the writ of execution stayed.
The
application was dismissed by the High Court on the grounds that it
was not urgent.
This
appeal lies against that dismissal.
In
sum, the appellant attacks the judgment on the grounds that the Court
erred in the following respects:
(a)
in holding that the appellant was aware of the registration of an
award when in fact there was no such award;
(b)
in failing to appreciate that the writ was premised on an order
obtained ex-parte without notice to the appellant;
(c)
in failing to appreciate that the appellant only became aware of the
order on 2 May 2014 upon service of the writ and that, consequently,
the appellant had acted speedily in filing the application for stay
of execution;
(d)
in holding as it did, that the application was prompted by firstly,
the imminent removal of its goods, and secondly, the appellant's
inability to pay its obligations in terms of the award when there was
no award;
(e)
in holding as it did, that the fact that the appellant might have
owed the respondent was the only decisive factor and that the
procedure by which the payment was sought was inconsequential.
The
court a quo concluded that the application for a stay of execution of
the writ was not urgent on two bases:
(i)
The first was the appellant was aware, not only of the existence of
“the award” but also of its registration and yet took no action
in relation thereto.
(ii)
The second basis was that the appellant had as far back as September
2012 been aware of its financial obligations viz a vis the
retrenchment packages and had made no effort whatsoever to pay the
retrenchees.
The
court therefore reasoned that due to the above circumstances, the
only motive for the application was the appellant's inability to
pay and its desire to postpone the imminent removal of its property
in execution of the writ.
I
intend to dispose first of the question of the registration of the
award.
The
order in relation to the said award was issued by the High Court on 3
April 2014. The order was premised on a chamber application filed on
19 March 2014.
It
is common cause that the application itself was never served on the
appellant.
The
contention is made that the learned judge who granted the application
had raised a query on the failure to serve the application on the
appellant. It is further common cause that in answer to the query the
respondent's legal practitioner informed the judge that the
application was procedural and therefore there was no need to serve
the application.
As
is evident from the record, this was inaccurate.
The
order granted dealt with substantive issues including an order for
the payment of a specified sum of money to the respondent. Thus the
application could not in any circumstance be termed procedural.
Although
an application for the rescission of the order in question has been
filed and is still pending the court a quo made certain findings
relating to the order in disposing of the application for a stay
which make it necessary to comment briefly on the order.
The
first relates to the conclusion that the appellant was aware of the
retrenchment award.
There
was in fact no award.
What
was in place was an agreed retrenchment package which was
subsequently approved by the Retrenchment Board in the Ministry of
Public Service Labour and Social Planning. It was this package that
was placed before the High Court for registration as an award.
It
is this registration that the appellant contends was irregular.
Indeed
from the record it is not clear upon what premise the High Court was
requested to register the said award and, and in addition, how it was
empowered to do so.
In
basing the perceived lack of urgency on the said award the High Court
misdirected itself.
I
turn next to the finding by the court a quo that there was no urgency
in the application due to the awareness by the appellant as far back
as September 2012 of its financial obligations and, that as a result,
there was no urgency.
The
retrenchment package in question does not reflect the name of the
respondent.
It
was an agreement between the representatives of the appellant as
employer and the representatives of non-managerial employees of the
appellant. The agreement sets out the modalities of calculating the
packages. It does not set out specific amounts for payment as
retrenchment dues. Nor does it spell out any individual packages for
payment by the appellant.
The
monetary value for payment to the respondent appears to have been
compiled by ZIMRA.
No
explanation for its origin is evident on the application.
It
therefore begs the question how the appellant could have been aware
of a specific obligation to the respondent personally or any of its
employees under these circumstances.
Lastly
the issue that falls for resolution is whether or not the appellant
delayed in instituting the application to have the writ stayed.
The
order in terms of which the award “was registered” was granted on
3 April 2014 but in view of the lack of notice the appellant only
became aware of it on 2 May 2014 when the Deputy Sheriff served it
with a writ. On 9 May 2014, the chamber application to stay execution
was filed and served on the respondent.
The
matter was set down for hearing on 15 May 2014 but could not proceed
on that date because the parties' legal practitioners advised the
judge that they were exploring an out of court settlement which,
unfortunately, came to naught.
The
matter was heard on 6 June 2014 on which date the learned judge
dismissed the application.
He
reasoned that the matter could not be urgent merely because the
applicant said it was urgent.
He
indicated that the application had been filed solely to delay and
frustrate the writ of execution sought to be enforced by the Deputy
Sheriff.
I
am convinced that the learned judge erred and misdirected himself.
All
the facts point to the order having been obtained in an irregular
manner. There was no award made in favour of the respondent which was
capable of being registered.
The
High Court is a superior court with inherent jurisdiction but does
not have the power to register a retrenchment award in the
circumstances under which this order was made.
The
order itself was obtained without notice to the appellant.
The
Rules of the High Court 1971 provide in Rule 226 for the nature of an
application and the circumstances when such application is
permissible.
Rule
226 reads:
“226.
Nature of applications
(1)
Subject to this rule, all applications made for whatever purpose in
terms of these rules or any other law, other than applications made
orally during the course of a hearing, shall be made -
(a)
as a court application, that is to say, in writing to the court on
notice to all interested parties; or
(b)
as a chamber application, that is to say, in writing to a judge.
(2)
An application shall not be made as a chamber application unless -
(a)
the matter is urgent and cannot wait to be resolved through a court
application; or
(b)
these rules or any other enactment so provide; or
(c)
the relief sought is procedural or for a provisional order where no
interim relief is sought only; or
(d)
the relief sought is for a default judgment or a final order where -
(i)
the defendant or respondent, as the case may be, has previously had
due notice that the order will be sought, and is in default; or
(ii)
there is no other interested party to the application; or
(iii)
every interested party is a party to the application; or
(e)
there are special circumstances which are set out in the application
justifying the application.”
The
chamber application filed by the respondent for the registration of
the retrenchment award was not permitted under the rules.
The
matter was not filed under a certificate of urgency and could not
therefore be said to be urgent.
The
relief sought was not a default judgment.
The
appellant had not previously had notice that the respondent would be
seeking the order in question. Nor could the appellant be said to
have been in default after due notice to itself.
The
appellant was an interested party.
There
were no special circumstances cited justifying the application.
It
cannot be overemphasised that in proceeding as he did the respondent
was in clear breach of the rules.
The
failure to bring a court application instead of a chamber application
could have been forgiven had the respondent given notice of the
application to the appellant by ensuring that it was served upon the
latter.
The
respondent's legal practitioner in clear breach of the rules than
proceeded to have the matter referred to a judge in chambers without
service of the same on the appellant.
The
learned judge before whom the application was placed was alive to the
need for service of the chamber application upon the appellant.
In
my view the learned judge ought not to have so easily accepted the
explanation from the respondent's legal practitioner that the
matter was of a procedural nature and that consequently service of
the application was not required.
The
rules provide that a chamber application shall be served upon all
interested parties.
The
rules then set out the circumstances under which service may be
dispensed with.
Rule
242 is pertinent and reads in relevant part:
“242.
Service of chamber applications
(1)
A chamber application shall be served on all interested parties
unless the defendant or respondent, as the case may be, has
previously had due notice of the order sought and is in default or
unless the applicant reasonably believes one or more of the following
-
(a)
that the matter is uncontentious in that no person other than the
applicant can reasonably be expected to be affected by the order
sought or object to it;
(b)
that the order sought is -
(i)
a request for directions; or
(ii)
to enforce any other provision of these rules in circumstances where
no other person is likely to object; or [Paragraph substituted by
S.I. 25 of 1993]
(b)
that there is a risk of perverse conduct in that any person who would
otherwise be entitled to notice of the application is likely to act
so as to defeat, wholly or partly, the purpose of the application
prior to an order being granted or served;
(d)
that the matter is so urgent and the risk of irreparable damage to
the applicant is so great that there is insufficient time to give due
notice to those otherwise entitled to it;
(e)
that there is any other reason, acceptable to the judge, why such
notice should not be given.
(3)
Where an applicant has not served a chamber application on another
party because he reasonably believes one or more of the matters
referred to in paragraphs (a) to (e) of subrule (1) -
(a)
he shall set out the grounds for his belief fully in his affidavit;
and
(b)
unless the applicant is not legally represented, the application
shall be accompanied by a certificate from a legal practitioner
setting out, with reasons, his belief that the matter is
uncontentious, likely to attract perverse conduct or urgent for one
or more of the reasons set out in paragraphs (a), (b), (c), (d) or
(e) of subrule (1).”
In
casu, the nature of the relief sought and obtained was not
“uncontentious.”
The
order granted by the court affected the rights of the appellant as it
made provision for the payment of a sum of money. The appellant would
reasonably be expected to object to it. It was not an order for
directions nor was its purpose to enforce a provision of the rules.
Finally there was no allegation that service of the application upon
the appellant would result in perverse conduct on the part of the
appellant.
In
sum therefore, there was no explanation on the papers for the
decision not to serve the application upon the appellant.
This
again constituted a serious and grievous breach of the rules of the
High Court.
In
addition to being a breach of the rules the failure to serve the
application was also a fundamental breach of the audi alteram partem
rule, which requires that every person must be afforded an
opportunity to be heard in his own cause.
This
Court, like the High Court, has powers of review which are
exercisable when it comes to the notice of the court or a judge that
an irregularity has occurred during proceedings before a lower court
or tribunal or in the making of a decision by such lower court or
tribunal.
The
court's powers of review are spelt out in s25 of the Supreme Court
Act [Chapter 7:13], which reads:-
“25
Review powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction and authority conferred by subsection (1) may
be exercised whenever it comes to the notice of the Supreme Court or
a judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(3)
Nothing in this section shall be construed as conferring upon any
person any right to institute any review in the first instance before
the Supreme Court or a judge of the Supreme Court, and provision may
be made in rules of court, and a judge of the Supreme Court may give
directions, specifying that any class of review or any particular
review shall be instituted before or shall be referred or remitted to
the High Court for determination.”
The
application for the registration of the retrenchment award was
fraught with irregularities.
It
was filed as a chamber application when the respondent should more
properly have filed a court application. It was not served upon the
appellant who was the party with a clear interest in grant of the
order. Lastly, the nature of the award itself is such that it was not
capable of registration.
It
is not evident from the High Court what nature of jurisdiction it was
exercising in registering the award.
The
registration of the award was not only irregular, the manner in which
the registration was sought was also irregular.
It
is trite that this court is not a court of first instance, and
therefore its review powers can only be exercised within the context
of s25 above.
As
the powers in question were exercised in the determination of an
appeal it is only appropriate that the remedy be provided in terms of
s22 of the Act. Section 22 reads:
“22
Powers of Supreme Court in appeals in civil cases
(1)
Subject to any other enactment, on the hearing of a civil appeal the
Supreme Court -
(a)
shall have power to confirm, vary, amend or set aside the judgment
appealed against or give such judgment as the case may require;
(b)
may, if it thinks it necessary or expedient in the interests of
justice -
(i)
n/a;
(ii)
n/a;
(iv)
n/a;
(v)
n/a;
(vi)
n/a;
(vii)
n/a;
(viii)
n/a;
(ix)
take any other course which may lead to the just, speedy and
inexpensive settlement of the case;”
In
terms of s22(1)(ix), this Court is empowered to take a course which
is aimed at achieving a just speedy and inexpensive settlement of the
case.
It
was evident to both parties to the dispute and the court that the
irregularities were such that to subject the appellant to further
litigation to have the registration of the retrenchment package set
aside would be unjust.
In
the exercise of the powers of the Supreme Court in terms of s25 and
s22, it is only just and proper that the order for registration be
set aside. The writ is also set aside as having been premised on an
irregular order.
What
was before the High Court was an application for the grant of a
provisional order. The applicant thereto merely had to establish a
prima facie case.
However,
it is evident that in considering the chamber application, the High
Court went beyond an examination of the dispute on a prima facie
basis. It went to the root of the dispute and made findings of fact
and conclusions of law. In the event, it would have served no purpose
to issue a provisional order under these circumstances. The merits of
the entire application having been considered, it was only proper
that in allowing the appeal an order setting aside the writ be
granted.
It
was for these reasons that we allowed the appeal with costs and
granted an order in favour of the appellant.
The
appellant filed its application a mere seven days after becoming
award of the default judgment. In my view there were more than ample
grounds for the grant of an order staying execution of the writ on an
urgent basis.
In
the premises the following order will issue:
“IT
IS ORDERED THAT:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a quo be and is hereby set aside and is
substituted with the following:
(i)
The registration of the retrenchment award with the High Court under
case No HC627/14 is hereby set aside as being irregular.
(ii)
The warrant of execution against the appellant's property issued
under case No HC627/14 is hereby set aside as it is based on an order
granted in an irregular manner.
CHIDYAUSIKU
CJ: I agree
HLATSHWAYO
JA: I agree
Majoko
& Majoko Legal Practitioners, appellant's legal practitioners
Messrs
Job Sibanda & Associates, respondent's legal practitioners
