MUTEMA J: The applicants have had a long running legal
battle with the 4th respondent (Air Zimbabwe Holdings) and Air
Zimbabwe (Pvt) Ltd, a subsidiary company of Air Zimbabwe Holdings. The legal dispute between the parties has its
genesis steeped in matters of employment.
It is claimed that Air Zimbabwe Holdings and Air Zimbabwe (Pvt) Ltd owe
the applicants and their members (who are employees of the former)
approximately US$35 415 731,80 representing union dues and salary arrears for
the period January, 2009 to December 2011.
The applicants believe that the financial woes bedevilling Air Zimbabwe
Holdings and Air Zimbabwe (Pvt) Ltd are a result of mismanagement. This is the reason why the applicants filed
case number HC 661/12 on 23 January, 2012 by way of a court application to have
Air Zimbabwe Holdings and Air Zimbabwe (Pvt) Ltd placed under provisional
judicial management instead of gunning for outright liquidation. That application is still pending and it is
being opposed.
On
2 April, 2012, the applicants stumbled upon an official letter dated 26 March,
2012 from second respondent to third respondent wherein it was directed that 4th
respondent should transfer its share holding in fifth respondent to a nominee
company wholly owned by the government of Zimbabwe and that the fifth
respondent would cease to be a subsidiary of Air Zimbabwe Holdings and the
fifth respondent's current board of directors was dissolved. The letter in question is attached to this
application as annexure "B". The
respondents' action postulated above created an apprehension in applicants'
mind that the action amounted to stripping Air Zimbabwe Holdings of its assets thereby reducing it to
a shell thus rendering nugatory the application in case number HC 661/12. This prompted the applicants to file the
present interlocutory interdict barring the respondents from giving effect to
the transfer of Air Zimbabwe Holdings shares in fifth respondent as directed by
the second respondent in annexure "B" supra and from interfering with the assets of Air
Zimbabwe Holdings in any manner that will have the effect of stripping the
company of its assets pending finalisation of the matter in HC 661/12.
The
terse oral submissions made on behalf of the first and second respondents is
that urgency is absent because the first two respondents' actions are deemed
lawful and it is difficult for them to reverse their actions.
The
third and fourth respondents orally associated themselves with the first two
respondents' submissions supra. They
added that the sole purpose of the first two respondents' actions is to restore
profitability and that even if the shares are transferred there will not be any
prejudice occasioned to the applicants because of s 16 of the Labour Act, [Cap 28:01] which provides that on
transfer of an undertaking, the rights of employees and obligations of the
transferor are transferred to the transferee.
That
the matter is not urgent on the basis that the first two respondents' actions
are deemed lawful and it is difficult to reverse the actions is an idle
argument. It also misses the rationale
underlying the legal concept of urgency as contemplated in the rules of this
court. A matter is urgent when the need
to act arises it cannot wait and the application is timeously made. In casu
annexure "B" supra came to the
applicants' attention on 2 April, 2012 and on 4 April, 2012 this urgent
application was filed. There was
therefore no delay in seeking redress/relief by the applicants. When it comes to urgency, the issue is not
whether a respondent's actions are deemed lawful or it is difficult to reverse
the actions. The lawfulness or otherwise
of the first two respondents' actions is for the court to decide on the return
day and so is the issue pertaining to the alleged difficulty in reversing those
actions. In fact, the respondents are
not being called upon to reverse their actions but to put them on hold pending
the finalisation of the matter in case number HC 661/12. In the event, I find that the matter in casu does meet the requirements of
urgency as contemplated in the rules.
Regarding
the merits, the local case of Enhanced
Communications Network (Pvt) Ltd v Minister
of Information, Posts and telecommunications 1997 (1) ZLR 342 clearly sets
out the requisites for a temporary or interim interdict.
They
are these:
(1) That
the right sought to be protected is clear; or
(2) (a)
if not clear, it is prima facie
established, even though open to doubt; and
(b) there is a
well-ground apprehension of irreparable harm if the relief is not
granted and the applicants ultimately
succeeds in establishing his rights;
(3) The
balance of convenience favours the grant of the relief; and
(4) There
be no other satisfactory remedy.
There is a rider
to the above requisites that even where the requisites are established, the
court still has a discretion whether to grant of refuse the remedy.
That the right sought to be protected is clear or if
not clear, it is prima facie established even though open to doubt seems to
me to be as clear as day follows night.
Applicants seek to protect the re
litigiosa, viz the assets of Air Zimbabwe Holdings rendered as such by HC
661/12. The applicants, by so doing want
to protect what Air Zimbabwe (Pvt) Ltd owes them in terms of union dues and
salary arrears stated above which has not been disputed and which the court can
take judicial notice of due to its notoriety.
The right sought to be protected is clear.
That there
exists a well-grounded apprehension of irreparable harm if the relief sought is
not granted and the applicants ultimately succeed in establishing their right
in HC 661/12 is beyond caevil. It is not
disputed that fifth respondent is currently the only subsidiary of Air Zimbabwe
Holdings which is profitable. Judicial
notice can also be taken of the fact that Air Zimbabwe (Pvt) Ltd's planes are
all grounded and as such no revenue is being generated by it. If the
respondents were to be allowed to alienate assets belonging to Air Zimbabwe
Holdings and applicants ultimately succeed in HC 661/12 in having the two
entities cited therein placed under provisional judicial management,
irreparable harm would have been occasioned to the applicants since there would
be no assets to provisionally judicially manage.
That outcome
would simply amount to a brutum fulmen. The argument that the applicants will not be
prejudiced by the transfer of the shares on the basis of the provisions of s 16
of the Labour Act is fallacious. That section
does not apply in casu because annexure
"B" supra is defeaningly silent about
the fate of the workers or the obligations to the workers by the transferee of
the shares in question. In fact that
letter only states that the fifth respondent would cease to be a subsidiary of
Air Zimbabwe Holdings without stating what the fate of the fifth respondent
would be let alone that of its employees.
The balance of
convenience clearly favours the granting of the relief sought. No prejudice would be wrought upon the
respondents by granting the relief because if the outcome in HC 661/12 is in
their favour, they can always implement their actions. In any event, it has not been disputed that
applicants filed their heads of argument in HC 661/12 on 23 March, 2012 and
only the set down date for the opposed application is awaited. On the other hand, if the relief is not
granted the applicants' pursuit in HC 661/12 will be rendered academic.
Clearly there is
no other satisfactory remedy that can accrue to the applicants in the
circumstances in view of the foregoing findings.
In the event, I
will invoke the discretion reposed in me in view of the above findings and
grant the relief sought in terms of the provisional order.
Matsikidze and Mucheche, applicants'
legal practitioners
Civil Division of the Attorney General's
Office, 1st and 2nd respondents' legal practitioners.
Mutumbwa, Mugabe and
partners, 3rd and fourth respondents' legal practitioners.
