BERE
J: Pursuant to the registration of an
arbitral award handed down in favour of the respondents on 17 November 2009,
the respondents have proceeded to execute on that order.
The
execution currently in full swing has led to the attachment of the applicant
equipment some of which constitute the mainstay of its very existence. The
applicant's very existence and the welfare of all its employees including the
respondents have been thrown on the spotlight. It is under a serious threat.
Alarmed
by the unfolding drama the applicant sought clarification as to what amount was
exactly due to the respondents against what it had allegedly paid. According to
the applicant its accounting section revealed, though belatedly that it had
paid the respondents in excess of the amount on the arbitrary award. The
applicant then immediately filed an application in this court in HC 2159/11
seeking to have the anormally corrected. Almost simultaneously with this
application was lodged the instant urgent chamber application seeking stay of
execution pending the determination of the application in HC 2159/11.
The
timing of these applications coming on the 11th hour as it were has
not gone well with the respondents who feel quite strongly that they are meant
to achieve nothing other than worsening their already miserable situation. They
regard the whole exercise as calculated to frustrate them in getting their long
outstanding dues. The respondents' concerns are fully understandable because
they have gone for a long time without being reasonably paid what is
legitimately due to them.
Counsel
for the respondents eloquently presented the respondent's predicament in this
case. The court was fully put in picture of the situation on the ground.
To
the extend that the applicant even as we sit in this hearing has accepted that
it still owes the respondents arrear salaries other than the disputed arbitrary
award, it appears the applicant has been sincere. What this means is that even
if the respondents were to proceed with execution in its current form, the
applicant will still remain liable to the respondents.
I
have carefully followed the submissions by both counsel in this hearing.
Counsel for the respondents seemed to suggest that once an arbitrary award has
been registered the quantification of that award cannot be challenged
subsequently without seeking first to upset the registration process of the
award itself. I am unable to agree. It occurs to me that the figure carried on
the writ of execution can be challenged at any given time if it is felt that that
figure is not consistent with what is legitimately due to the judgment
creditor. I imagine a simple situation where the judgment debtor has effected
part payment long before execution commences. If on a subsequent occasion the
judgment creditor were to attempt execution without taking into account the
part payment, surely the judgment debtor must be given a platform to have that
anormally corrected. This appears to be what has prompted this application by
the applicant. More importantly, the applicant has argued that it has paid the
respondents far more in excess of the amounts it believes they are entitled to
in terms of its own computation of what is due to the respondents. Annexures C
and D have been presented to justify the position taken by the applicant. I did
not hear the respondents arguing that ever since the arbitrary award was made,
the applicant has not paid them anything. There is in my view need to give both
parties an opportunity to reconcile the payments made by the applicant against
what is due to the respondents and the court application HC 2159/11 presents a
perfect opportunity for both parties to achieve this. Either of the two will
happen in that process. It is either the applicant will succeed or fail in that
regard. If the applicant looses that case, execution will follow and that does
not seem to present much of a challenge. But in the event of the applicant
succeeding in that application when execution has already been completed, the
results will be too ghastly to contemplate.
The
aspect of public policy has not escaped my attention. It is easy to destroy the
potential of the applicant by the stroke of a pen.
It
is equally true that public policy demands that respondents be timeously paid
what is due to them as employees of the applicant. Courts do operate within a
given political, social and economic environment. As a judicial officer I am
fully aware that our unemployment rate in this country represents one of the
highest in the world and it has not been easy to attract investment in this
country because of many reasons. However, this is not the perfect platform to
debate why as a country we have been unable to attract the much needed
investment. But I emphasise we must be slow to move towards the extinction of
existing enterprises. The coming into the picture of Essar as a potential
investor in the applicant company must not be lightly taken. It must be given a
chance, more so given the likelihood of a concrete agreement being reached this
current month. It occurs to me that that development might provide a long term
benefit to the plight of the respondents and their dependants.
THE ISSUE OF COSTS
It
is evident that the applicant has acted in an extremely lackadaisical manner in
handling this matter. The timing of the filing of the urgent application is
quite curious.
Given
the delay in the formal registration of the arbitrary award in order to pave
way for execution, the applicant had all the time it needed to clarify issues
long before execution had commenced. The parties are in the current mess
because of the casual approach adopted by the applicant and for this reason I
am satisfied this is a perfect case where a successful part must be burdened
with punitive costs some of which it has voluntarily offered to pay.
However,
an attempt will be made to avoid the unnecessary incurring of further costs by
way of storage charges.
Accordingly
I order as follows:
1.
Pending the finalization of the application by the
applicant as set out in HC 2159/11 the second respondent is ordered to restore
to the applicant all the property removed and stay any further execution
against the applicant's property.
2.
The restored property shall remain under attachment
pending the determination of case HC 2159/11.
3.
The applicant, shall bear the costs of this application
on attorney-client scale and shall further pay the costs of restoration of the
property as well as the costs for the execution carried out by the second
respondent.
Wilmot & Bennett incorporating Mtetwa & Nyambirai, applicant's legal practitioners
Mbidzo Muchadehama
& Makoni, 1st respondents' legal practitioners
