Mbatha v Confederation of Zimbabwe Industries (HC 1788 of 2015) [2015] ZWHHC 225 (4 March 2015)

1 HH 225-15 HC 1788/15 RITA MARQUE MBATHA versus CONFEDERATION OF ZIMBABWE INDUSTRIES HIGH COURT OF ZIMBABWE CHATUKUTA J HARARE 5 March 2015 URGENT CHAMBER APPLICATION Applicant in person H. Mutasa, for the respondent CHATUKUTA J: This is an urgent chamber application for leave to appeal against a judgment of this court in Confederation of Zimbabwe Industries v Rita Marque Mbatha HH 125/15 handed down on 11 February 2015. The application was filed on 26 February 2015. On 27 February 2015 I made a preliminary assessment of whether or not the application was urgent. I opined and endorsed that the application was not urgent. I further endorsed that the relief that the applicant was seeking was incompetent in that the interim relief sought was the same as the final order. The applicant soon thereafter, and after having made an attempt at amending the draft provisional order, sought audience, as she is entitled to hence the hearing of the application.( See Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H) The parties have been engaged in protracted litigation dating back from 2002 over allegations by the applicant of sexual harassment by the respondent’s then President and Chief Executive Officer. The applicant’s employment with the respondent was terminated after the allegations. The applicant challenged the termination. The dispute was referred to arbitration culminating in an award in favour of the applicant on 24 March 2014. The respondent appealed against the award. Quantification of damages was pronounced on 27 July 2014. The respondent thereafter appealed against the quantification. The respondent at the same time, applied to this court in case number HC 8795/14 to have the award set aside. The award was set aside on 11 February 2015 in case number HH 125/15. Dissatisfied with the judgment in case number HH 125/15, the applicant filed the present application for leave to appeal to the Supreme Court. HH 225-15 HC 1788/15 The respondent raised a number of preliminary issues. The first issue was that the applicant had not filed a certificate of urgency as is required under the High Court Rules. The second issue was that I was not properly seized with the application as is required in terms of s 34(2)(d) of the High Court Act [Cap 7:06] as I am not the judge who determined the matter in case number HH 125/15. The last issue was that the applicant had not laid a basis for the matter to be heard on an urgently. She was relying on her personal circumstances to establish urgency. She had not alluded in any manner that she was to suffer irreparable harm. The applicant abandoned midstream the first two issues and hence the question of urgency remained the only issue for determination. The applicant submitted that the urgency of the matter arose from the fact that she is of poor health and requires urgent medical attention in the United States. The matter must therefore be heard urgently as she is not aware of how long she will be away. Further, she submitted that she was not sure of the outcome of the medical procedures she is to undergo in the United States. In the event that she does not survive the procedure, she will not have enjoyed the benefits of the award made in her favour. The requirements for urgency are trite. The applicant must establish imminent danger to existing rights and the possibility of irreparable harm. (See Triple C Pigs & Anor v Commissioner-General, ZRA 2007 (1) 27; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H)). As stated by GOWORA J in Triple C Pigs & Anor v Commissiner- General, ZRA (supra) at 30G-31D “Naturally every litigant appearing before these courts wishes to have their matter heard on an urgent basis, because the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied. Equally, the courts in order to ensure delivery of justice, would endeavour to here matter as soon as is reasonably practicable. This is not always possible, however, and in order to give effect to the intention of the courts to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant. As courts, we therefore have to consider, in the exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent has shown the infringement or violation of some legitimate interest, and whether or not the infringement of such interest, if not redressed immediately, would not be the cause of harm to the litigant which any relief in the future would render brutum fulmen. HH 225-15 HC 1788/15 I would however, in closing wish to quote respectfully the remarks of GILLISPIE J in General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301 (H) at 302. Quoting from his own remarks in Dilwin Investments (Pvt) Ltd v Jopa Enterprise Co Ltd HH 116-98, the learned judge stated that: “A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”” It is apparent from the above that good cause must be shown for the applicant to dislodge other litigants who are in the queue to catch the express train to the Supreme Court. Would an applicant’s personal circumstances as articulated suffice as good cause where so many other litigants suffer from life threatening ailments, some from life threatening economic hardships? Would the applicant’s conjecture that she may not survive the medical procedures be the urgency that is envisaged? I believe not. It appears to me that the urgency which is envisaged is the urgency arising from facts of the case itself and the very nature of the relief sought. MAKARAU J (as she then was) observed in Document Support Centre (Pvt) Ltd v Mapuvire (supra) on p243F that: “Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications.” Each and every person who has filed a matter before these courts has his or her own peculiar personal circumstances which may attract the court’s sympathy. However, no matter how compelling the personal circumstances may be, the court is not enjoined in determining the question of urgency to consider them outside the confines of the nature of the case and the relief sought. Further, the applicant has not established that in the event that the application is not heard urgently, she is likely to suffer irreparable harm. The applicant is able to proceed with this application on the merits after joining the queue. In the event that she succeeds in her application for leave to appeal and in the appeal itself, she is still entitled to her award. It is therefore my view that the application is not urgent. HH 225-15 HC 1788/15 However, the matter does not end here. The applicant requested that I refer, I assumed this matter, to the Constitutional Court. I say “assume” because the applicant was not able to articulate what it is that she wanted referred. In her submissions, she stated that her dispute had taken long to resolve and therefore her rights were being violated. I was at pains to understand the applicant’s submissions. The respondent was equally constrained to respond, suffice to submit that the applicant had not made a case for the matter to be referred to the Constitutional Court. It was not clear which matter she wanted referred. In one breath she submitted that she wanted this application referred. In another breath she said she wanted the main matter referred. In the absence of a clear indication of exactly what she wanted, I was of the view that there was no issue before me to refer to the Constitutional Court. Finally, the respondent prayed for costs on an attorney-client scale. It was submitted that the application was frivolous and vexatious. It was further submitted that between December 2014 and 13 January 2015, the applicant had filed six applications in the Labour Court and in this Court. In all those cases, the respondent has been put out pocket in order to defend the applications. The present application is an addition to the list. The applicant submitted that she was entitled to protect her rights as best as she can. The applications alluded to were filed with the intention to do so. Whilst the applicant is indeed so entitled, it is apparent that the present application is frivolous as it is unfounded. I am inclined to agree with the respondent that the multiplicity of the applications and actions is indicative of vexacity. On 18 June 2014, the applicant issued summons in this court in case number HC 4986/14 claiming damages for shock, pain and suffering and post traumatic distress arising from the sexual harassment. This was so notwithstanding the fact the arbitral award provided for damages that the applicant suffered as a result of the sexual harassment. The respondent did not file its appearance to defend timeously. It then filed an application for condonation for late filing of appearance to defend. On 16 September 2014, the applicant filed an urgent chamber application in case number HC 8163/14 requesting urgent hearing of the application for condonation. The application was granted. In paragraph 11 of the founding affidavit, she stated as follows: HH 225-15 HC 1788/15 “I have collapsed thrice and been taken to Michael Gelfand 24 hours Emergency Rooms on 3rd July 2014. On the second occasion I was rushed to Trauma Centre (sic), 24 hour Emergency Rooms on the 23rd of August 2014 and on the 6th of September, 2014. On the 8th of September 2014 I was again taken ill and was treated at Trauma Centre, 24 hour Emergency Rooms. I had a sleepless night on the 14th of September 2014 and was violently sick and was transported to Michael Gelfand 24 hours Emergency Rooms on the 15th of September 2014 and was treated whilst on bed C2.- See Annexure “D2”-Annexture “D5”.” In the present application in paragraph 21 of the founding affidavit, the applicant averred that: “I have collapsed twice and been taken to Michael Gelfand 24 hours Emergency Rooms on 25th of December 2014. On the second occasion I was rushed to Trauma Centre (sic), 24 hour Emergency Rooms on the 28th of December 2014 and the following procedure were carried out……………………………………………….************ On the 7th of February 2015 and was treated whilst on bed 4.- See Annexure “D2”-Annexture “D5”.” In the urgent chamber application in case number HC 5/15 filed on 2 January 2015 the applicant sought the urgent hearing of case number HC 11087/14 and case number HC 11088/14. The first case is a chamber application for condonation of late application for leave to appeal against decision in case number 4986/14). The second case is a chamber application for leave to appeal against the decision in HC 4986/14. The applicant filed yet another urgent chamber application in the Labour Court on 13 January 2015 in case number LC/H/App/22/28/15. The applicant was seeking an order for the urgent hearing of cases in LC/H/APP/15/15 and LC/H/APP322/14 (being the appeals filed by the respondent against the arbitral award and the quantification). The applicant relied on similar averments as in the present matter as a basis for urgency in case number HC 5/15 and case number LC/H/App/22/28/15. The applicant did not dispute that the urgent chamber application in the Labour court was a rehash of the urgent chamber application in this court in case number HC 5/15. The applicant filed yet another application in the Labour Court (Application to dismiss the application of an Arbitral Award Pending Finalisation of Appeal for Want of Prosecution (sic)) on 8 January 2015. The application that she made during the hearing of HH 225-15 HC 1788/15 this application to have an unclear matter referred to the Constitutional Court, equally exhibited vexacity. The urgent chamber applications are preceded by the applicant receiving urgent medical attention. In each case the applicant lives another day to file another application. The respondent has been responding to the avalanche of applications incurring costs in the process. The harm caused by these multiple applications is not only to the respondent. It extends to the administration of justice. The courts are being laden with unfounded applications. The applicant exhibited a good understanding of the law despite of being a self- actor. She in fact filed heads of argument (in which she enunciated principles of law supported by case authorities) with case number HC 05/15 and the present case. The heads of argument would be the envy of some legal practitioners. However, if left unabated, the harm that she is causing will be immeasurable. She risks, at the rate that she is going, having an order for perpetual silence issued against her. In the result, this, in my view is a case that warrants an order for punitive costs. It is accordingly ordered that: 1. The application that the matter be heard on an urgent basis be and is hereby dismissed. 2. The application on the merits is to proceed as an ordinary court application in terms of the High Court Rules. 3. The applicant be and is hereby ordered to pay costs on an attorney-client scale. Gill, Godlonton & Gerrans, respondent’s legal practitioners