Green Fuels (Pvt) Ltd v Reitbauer & Anor (HC 9586 of 2015) [2015] ZWHHC 806 (12 October 2015)

1 HH 806-15 HC 9586/15 GREEN FUELS (PVT) LIMITED versus HARALD REITBAUER and THE SHERIFF HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 12 October 2015 Urgent chamber application I Ahmed, for the applicant G Gomwe, for the 1st respondent MATHONSI J: The applicant seeks a stay of execution of an order of this court made on 27 July 2015 in HC 6136/15 registering an arbitral award granted in favour of the first respondent on 26 April 2015 in terms of which the applicant was ordered to pay the respondent a total sum of $41 640.00 as money due to him following the mutual termination of his contract of employment. On 1 July 2015 the respondent filed a chamber application in HC 6136/15 for the registration of that award as an order of this court for enforcement. The application was served on the applicant on 6 July 2015 but it was not until 30 July 2015 that the applicant purported to file a notice of opposition. By then the application had been placed before me unopposed and I had granted the order for registration on 27 July 2015. To its credit, the applicant had not sat on the matter all that time doing nothing. On 7 July 2015, the applicant had filed an application of condonation for the late noting of an appeal in the Labour Court to which was attached a draft notice of appeal. It stated that the reason for its failure to note the appeal on time was that it had given instructions for the appeal to be noted to Wintertons who did not bother to do so. Proof of such instructions was attached to the application for condonation. Time was therefore lost in that process and when it retained the services of its current legal practitioners to undertake the exercise, the appeal was already out of time. On 21 July 2015, even before the arbitral award was registered by this court (it was only registered 6 days later on 27 July 2015), the applicant had again approached the Labour HH 806-15 HC 9586/15 Court for interim relief. Effectively the applicant made another application in that court for a stay of the execution of the arbitral award pending the determination of the appeal. It protested that executing the award would negate its appeal effort which will become of academic interest. The respondent being unemployed recovering money from him in the event of a successful prosecution of the appeal would be well nigh impossible. Both the application for condonation and the application for interim relief are still pending before the Labour Court and are yet to be set down for determination. Meanwhile, the respondent has moved quickly to issue a writ against the applicant’s property and instructed the Sheriff to execute. On 2 October 2015 the Sheriff placed under judicial attachment certain items of property which were due to be removed on 7 October 2015. The applicant has then made this urgent application seeking a provisional order in the following terms: “Terms of Final Order Sought That you show cause to this Honourable Court why a final order should not be made in following terms: 1. That pending determination of the applications filed in the Labour Court under Case Nos LC/H/App/801/15 and LC/H/App/901/15 execution of the arbitral award registered by an order of this Honourable Court in Case No HC 6136/15 on the 27th July 2015 be and is hereby stayed. the 2. That in the event of the 1st respondent opposing this application, the costs shall be paid by the 1st respondent. Interim Relief Granted Pending determination of this matter, the applicant is granted the following relief: 1. That the 2nd respondent be and (is) hereby ordered not to remove the goods which were placed under attachment in terms of a Notice of Seizure and Attachment dated the 2nd October 2015, which was issued pursuant to the order given in Case No. HC 6136/15 and the Writ of Execution of that order. 2. In the event that the 2nd respondent has removed the goods, he is directed to return all the goods to the applicant.” The second respondent has not appeared before me for today’s hearing. Mr Ahmed who appeared for the applicant confirmed that the property placed under judicial attachment was however not removed by the second respondent on 7 October 2015 as scheduled. The first respondent has strongly opposed the application on the grounds that the order for registration granted on 27 July 2015 was competently granted, remains extant and has not been challenged in any proceedings. For that reason the respondent is entitled to proceed with execution especially as the applicant has exhibited tardiness throughout. It was HH 806-15 HC 9586/15 tardy in failing to note an appeal timeously, tardy in failing to file opposition to the application for registration of the award until after it was registered and tardy in failing to seek a rescission of the order for registration. The respondent also took time to criticise the application for condonation of the late filing of an appeal which has been made in the Labour Court. He stated that it is defective and therefore will not succeed. In respect of the application for interim relief made in terms of s 92 E (3) of the Labour Act [Chapter 28:01], the respondent took the view that it should have been made on an urgent basis as “there is no such thing as an ordinary application for stay of execution.” Mr Gomwe for the respondent submitted that because of the applicant’s tardiness, the respondent should not be made to suffer further prejudice. He must be allowed to proceed with execution especially as it is clear that all the applicant wants is to frustrate the respondent from reaching the promised land of milk and honey. The respondent’s frustration is understandable because as a former employee he has been wallowing in poverty and probably unemployment, while the applicant took his time asserting its rights to contest the arbitral award. However, that is not the only consideration. Michael Eric Dyson, April 6, 1968, Basic Civitas Books, was right when he said: “Justice does not depend on feeling to do the right thing. It depends on the right action and sound thinking about the most helpful route to the best and most virtuous outcome.” Such disputes have continued to flood this court despite a number of pronouncements on the issues that trouble litigants when arbitration has been completed. The authorities make is clear that the lodging of an appeal to the Labour Court cannot be a ground to stop the enforcement of an arbitral award in light of s 92 E (2) of the Labour Act [Chapter 28:01] which provides that an appeal does not have the effect of suspending the determination or decision appealed against: Kuzamba v Innscor Africa Ltd t/a Spar Retail (Pvt) Ltd HH 505/14. A litigant desiring to challenge an arbitral award by appealing to the Labour Court must therefore seek shelter under s 92 E (3) of the Act which empowers the Labour Court to suspend the arbitral award upon an application being made for interim relief; Kukura Kurerwa Bus Company v Mukwena & Ors HH 477/14. In this matter, the applicant has made an application for interim relief which is yet to be determined by the Labour Court. It would therefore be improper for execution to go ahead as if nothing has happened. There must be certainty in court proceedings and it is undesirable HH 806-15 HC 9586/15 for parties to ignore pending litigation and proceed as if it does not exist and then create a situation of clumsiness which will be difficult to reverse. The administration of justice will suffer if that were to be allowed. There is always a need to keep the integrity of the judicial process and the court has a duty to control the processes in order that they comport with the proper functioning of the judicial system. In that regard, a case has been made for the interim relief that is sought. Accordingly, the provisional order is hereby granted in terms of the draft order. Ahmed & Ziyambi, applicant’s legal practitioners Mutangamira & Associates, respondent’s legal practitioners