Retan Inv. (Pvt) Ltd. v Ndlovu & Ors (HC 9909 of 2015) [2015] ZWHHC 827 (20 October 2015)

1 HH 827-15 HC 9909-15 RETAN INVESTMENTS (PVT) LTD versus ISHMAEL NDLOVU and EDWIN MASAWI and CAKSTONE MUNHARIRA and TAFADZWA ZANO and PRECIOUS TENDAI SWETO and GABRIEL MAFUNGA and ANESU MUNYURWA and SHERIFF FOR ZIMBABWE HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 21 October 2015 Urgent Chamber Application A Tavenhave, for the applicant 1st – 7th respondents in person MATHONSI J: The applicant, an incorporation which employed the first to seventh respondents, is against the ropes now after its former employees instructed the eighth respondent, the Sheriff to execute against its property following the successful registration of an order of the Labour Court in their favour for enforcement purposes. In this application, the applicant seeks a stay of execution to enable it to prosecute an application it has launched for the rescission of the order of this court registering the order in question. In historical context, following the termination of the employment of the employees, a labour dispute arose as to their terminal benefits, which dispute referred to arbitration. On 29 April 2014 GH Muzondo, an arbitrator assigned to deal with the dispute, issued an arbitral award in terms of which he dismissed the former employees’ claim for terminal benefits “in HH 827-15 HC 9909-15 the form of notice pay, leave pay, overtime pay, severance package, relocation expenses and underpayment.” The employees appealed against that arbitral award to the Labour Court. Their appeal was successful in that on 17 June 2015 the Labour Court, per Kudya J, upheld the appeal with the result that the employees were awarded varying amounts in terminal benefits adding up to $51619-88. They moved quickly to file an application in this court, HC 5821/15, for the registration of the Labour Court order for enforcement. The application was filed on June 22 2015. It was served upon the applicant on 23 June 2015 “by affixing to outer principal black gate after unsuccessful diligent search” according to the Sherriff’s return of service filed in that application. This was at No 48 Craster Road Southerton, Harare. The applicant did not file opposition to that application as a result of which the order for registration was granted, per Mangota J, on 14 August 2015. A writ of execution against property was issued on 10 September 2015 in pursuance of which the applicant’s property was placed under judicial attachment on 7 October 2015. The applicant has now come to court on an urgent basis seeking a stay of execution pending the determination of an application for rescission of judgment which it claims to have filed. I say that because the application has not been attached neither is its case reference cited. In the founding affidavit of Leipang Wang a director, the applicant states that a stay of execution is sought “pending the determination of the appeal under LC|H|423/14 and an order setting aside the writ of execution.” The difficulty the applicant has is that the appeal in question has already been determined by the Labour Court. In fact the order issued by Kudya J on 17 June 2015 is very instructive. It reads: “IT IS ORDERED THAT In default of the respondent’s appearance despite warning on 3 June 2015, appeal be and is hereby allowed.” So on 3 June 2015, the applicant was warned to attend court but chose not to. The matter was then determined against it and now it is crying foul. It must at least be aware that the appeal has been finalised but alas, in this application, the applicant claims that it was dissatisfied with the arbitral award, and then noted an appeal against it in the Labour Court. In order to prove the existence of its appeal lodged in the Labour Court, the applicant makes reference to annexure “B” to the founding affidavit. That document is, quite to the contrary, a notice from the Labour Court to the applicant of an appeal lodged by the respondents in LC|H|423/14, an appeal which has already been concluded. It reads: HH 827-15 HC 9909-15 “LABOUUR ACT (CHAPTER 28:01) PART 1 NOTICE BY REGISTRAR TO RESPONDENT TO THE RESPONDENT: RETAN INVESTMENTS 48 Craster Road Souhterton Harare. You are hereby required to complete in PART II of this Form, being the Notice of Response to the application/appeal by I Ndlovu and 6 Others of which was served on ___________ NB. f, as a party you fail to respond, the hearing of the application may proceed without you to the possible detriment of your interests. Given under my hand at _____________ this 19 day of May 2014.” Whatever appeal the applicant may have lodged with the Labour Court it is certainly not annexure “B” because that is evidence of an appeal lodged instead by the respondents. In fact we can safely conclude that the applicant did not note any appeal to the Labour Court and there is none pending at the moment. The applicant had no business appealing against the arbitral award made by GH Muzondo on 29 April 2014 for the simple reason that the award was in its favour. The applicant was the respondent while the respondents herein were claimants before the arbitrator. The operative part of that award is in the following: “In the result, I award as follows: 1. Claimant’s claim for terminal benefits in the form of notice pay, leave pay, overtime pay, severance package, relocation expenses and underpayment be and is hereby dismissed. 2. Claimant(s) to meet the full costs of arbitration.” As I have said there could have been no basis for the applicant to appeal a decision made in its favour. It did not appeal and therefore this application is premised on falsehood. There are very serious implications for that falsehood. The applicant is challenging the registration of the order of the Labour Court on the basis that it has appealed against the arbitral award and if “the appeal succeeds, the respondents will not be in a position to reimburse applicant the amounts.” Unfortunately this application must be judged by what is contained in the founding affidavit because it is a principle of our civil practice and procedure that an application stands or fall on its founding affidavit. See Mobile Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (ZLH) 70. The founding affidavit is however alarming by its lack of probity. We have a situation where either the applicant does not know its case completely and HH 827-15 HC 9909-15 has therefore based it on wrong information or, it has deliberately placed false information before me in order to mislead me into granting a stay of execution which is not deserved at all. Whatever it is between those two very unsavory possibilities, the result is the same. It is an application which is frivolous or vexatious in all legal sense it being obviously unsustainable, manifestly groundless and utterly hopeless and completely without foundation: Rogers v Rogers SC 7/08. Whoever prepared this application suffered from serious in attention because it cannot be said that the application was only the fruit of muddled instructions from a client. It should have been easy to verify that the applicant had not lodged an appeal and that it was in fact the respondents who had appealed. It should have been easy to ascertain that the only appeal pending in the Labour Court had been concluded and as such there was nothing pending in that court. A cause whose foundation is non-existent hangs in the air and can therefore not be sustained. It is in fact ripe for dismissal. I am aware that the applicant complained that the respondents have proceeded to execute on the gross amount before taxation, which would mean that the writ of execution should have contained the net amount due to the respondents and not the gross. In my view however, that is an issue for another application not the present one which is based on a falsehood that the applicant has appealed and is therefore entitled to a rescission of the registration order. Assuming that indeed an application for rescission has been made on those facts, it would be extremely without merit. There is no basis whatsoever for the rescission of the registration order. In the end, there is therefore no basis for preventing the registration of the Labour Court order. The applicant has been remiss in the extreme resulting in a frivolous application being placed before me. In the result, the application is hereby dismissed with costs. Tavenhave & Machingauta, applicant’s legal practitioner