1
HH 257-15
HC 2026/15
PROTON BAKERIES (PVT) LTD
versus
JOSEPH NDUNA
and
THE SHERRIF OF ZIMBABWE
and
MESSENGER OF COURT – MARONDERA
HIGH COURT OF ZIMBABWE
MAWADZE J
HARARE, 9, 10 & 16 March 2015
URGENT CHAMBER APPLICATION
B. Perusu, for the applicant
T. Chiturumani, for the 1st respondent
No appearance for 2nd respondent
3rd respondent in person
MAWADZE J: This is an urgent chamber application for stay of execution of the order and writ of execution under case HC 4885/14 and an order ordering the respondents to return or restore any funds paid by the applicant, which funds must be held in trust by the applicant’s legal practitioners pending the outcome of an application for leave to appeal against the decision of the Honourable Justice Chidziva handed done in the Labour Court under LC/H/891/13.
The terms of the interim relief sought are as follows;
“INTERIM RELIED GRANTED
Pending the confirmation or discharge of this provisional order the applicant is granted the following interim relief:
1. Disbursement to 1st respondent of the funds paid by applicant to the 3rd respondent be and is hereby stayed and the funds shall be remitted to Honey and Blanckenberg.
2. In the event that disbursement referred to in paragraph 2 above has taken place, the 1st respondent be and is hereby ordered to remit the Applicant’s funds to Honey and Blanckenberg
SERVICE OF PROVISIONAL ORDER
The applicant or its Legal Practitioners are hereby given leave to serve this Provisional Order upon the Respondent or their Legal Practitioners”
The terms of the final order are as follows:
“TERMS OF FINAL ORDER
That you show cause to this Honorable Court why a final order should not be made in the following terms:
1. Pending the determination of the Application for Leave to Appeal under LC/APP/H/292/14 the execution of the Arbitral Award handed down by the Honorable Arbitrator Segula on 10th of October 2013, which was registered in the High Court on 20 January 2015, be and is hereby stayed.
2. The sum of US $96 860-00 shall be held in trust by Messrs Honey and Blanckenberg pending the determination of Application for Leave to Appeal under LC/APP/H/292/14.
3. 1st respondent be and is hereby ordered to pay Applicant’s costs of suit”.
The applicant Proton Bakeries (Pvt) Ltd is a duly registered company in terms of the laws of Zimbabwe and is one of the leading bakeries in the country which supplies bread and other bread products to various shops throughout Zimbabwe. Its head Office is located in Marondera.
The first respondent Joseph Nduna has a contractual labour dispute with the applicant.
The second respondent the Sherrif of Zimbabwe and the third respondent the Messenger of Court Marondera are cited in the official capacities.
The background facts of this matter giving rise to this urgent chamber application can be outlined as follows:
The genesis of the dispute between the applicant and the first respondent can be summarised as follows;
The first respondent was employed by Carnol Chemicals as Regional Sales Manager before he was offered employment as Sales Manager by the applicant. A contract of employment outlining the terms and condition of employment was drawn.
The first respondent apparently accepted the offer on 2 April 2012 and resigned from his employment. However the applicant is said to have indicated on 3 April 2012 that they could not employ the first respondent.
The first respondent was aggrieved as he believed the applicant had unfairly and unlawfully terminated the contract of employment. The applicant on the other hand argues that the first respondent had not accepted its offer but had made a counter offer which counter offer applicant had rejected. The applicant’s position is that it was on that basis that the offer was withdrawn and that the first respondent simply purported to accept an offer which had been withdrawn. The first respondent disagrees, and believes that there was an unfair labour practice.
The dispute between the applicant and the first respondent was referred to conciliation but the parties did not find each other. It was referred for compulsory arbitration.
On 10 October 2013 the Arbitrator Honourable Segula granted an award in favour of the first respondent. The applicant was ordered to pay the first respondent wages and benefits equivalent to 24 months which amounted to US$96 860-00.
Aggrieved by this decision the applicant appealed to the Labour Court. On 6 June 2014 Honourable Chidziva J dismissed the appeal. This prompted the applicant to apply for leave to appeal to the Supreme Court against Chidziva J’s judgment which application was filed on 27 June 2014.
The application for leave to appeal filed on 27 June 2014 was only set down and argued on 28 January 2015, and judgment reserved. To date the judgment is yet to be delivered. This has resulted in numerous litigation processes initiated by both parties including this application.
While the applicant and the first respondent had agreed to a consent order for a stay of execution pending the appeal to the Labour Court, when the appeal was dismissed the first respondent proceeded to seek the registration of the arbitral award with this court. This was unsuccessfully opposed by the applicant. On 18 February 2015 my brother Mtshiya J registered the arbitral award. The next day on 19 February 2015 the first respondent issued out a writ against the applicant and it was served by the third respondent on the applicant on 20 February 2015.
The applicant after being served with the writ applied for a stay of execution in the Labour Court and on 4 March 2015 Makamure J dismissed the application for want of jurisdiction.
Notwithstanding the pending application for leave to appeal filed on 27 June 2014 and argued on 28 January 2015 the second respondent instructed the third respondent to execute on the writ. The third respondent was then paid US $96 860-00 by the applicant on 3 March 2015. This development prompted the applicant to approach this court on an urgent certificate on 5 March 2015 seeking an interim relief already referred to.
The applicant submitted that the urgency in this matter arises from the fact that it is a dispute of a commercial nature hence after the second respondent had instructed the third respondent to proceed with execution on 3 March 2015 applicant fearing that its goods could be removed thus hampering the business operations, the applicant paid out the US$96 860 into the third respondent’s account. The applicant’s fear now is that the third respondent may proceed to disburse the US$97 860 immediately. It is the applicant’s belief that once the money is disbursed to the first respondent it is unlikely to be recovered in the event that the applicant succeeds in being granted the leave to appeal and eventually succeeds in the Supreme Court. The applicant is of the view that such a victory would be pyrrich if not costly as it may entail further litigation to recover the money from the first respondent whom the applicant believes has no means to refund such an amount.
In relation to the merits the applicant believes that the application for leave to appeal enjoys good prospects of success as is shown by the draft grounds of appeal which form the basis for seeking such leave. As per the draft grounds of appeal applicant contends that the arbitrator had no jurisdiction to deal with the matter and that the quantum of the award is outrageous more so as the contract of employment offered to the first respondent had a probationary clause.
In his opposing affidavit the first respondent averred that the matter is not urgent because the writ of execution was served on the applicant on 20 February but the applicant only filed this urgent application on 5 March 2015 which means that the applicant did not treat the matter as urgent. The first respondent submitted that it does not help the applicant’s cause that the applicant approached the wrong forum by seeking stay of execution in the Labour Court when the order sought to be stayed was an order of the High Court. It is the first respondent’s view that the negligence on the part of the applicant’s legal practitioners or their ignorance of the law cannot be the basis to allege urgency in the matter.
The second leg of the first respondent’s argument is that the delay by the applicant in making this application has now made the order sought unenforcible as the third respondent has since transferred the money to the first respondent’s legal practitioners as per the attached RTGS copy dated 4 March 2015. The first respondent said his legal practitioners have in turn paid the same to him on 5 March 2015. Upon receipt of the money the first respondent said he has since paid off all his debts incurred since 2012 when he left employment anticipating to be employed by the applicant. The first respondent made it clear in his opposing affidavit that currently he does not have a single cent and has already exhausted the US$96 860 paid to him by the third respondent. The first respondent said he had already paid his legal fees and that he was already penniless when he received this urgent application on 6 March 2015.
The first respondent did not deem it necessary to deal with the merits of the application.
After the parties had made their initial submissions I directed that the first respondent through his legal practitioner should file proof of the disbursement of the money by the first respondent’s legal practitioners to the first respondent’s bank account. I also requested that the first respondent should file his current bank statement in view of his assertions that he has exhausted all the money. I was unable to take at face value that the first respondent, like the Biblical Prodigal son had blown over US$90 000 in less than 2-3 days!!!
My suspicions were confirmed when the relevant documents were filed the next day as they revealed the following:
- that on 4 March 2015 the third respondent through RTGS disimbursed US$97 410 into first respondent’s legal practitioners account held with CBZ.
- that on 5 March 2015 the first respondent’s legal practitioners disimbursed US$92 025 through RTGS into first respondent’s ZB Account. The first respondent said the amount was now US$92 025 as he had paid legal fees of about US$5 000. The first respondent said he is still to pay the third respondent’s fees of US$500.
- the first respondent’s Interim Bank Statement shows a credit balance of US $78 780 as at 10 March 2015. This means that out of the US$92 025 the first respondent had only spent US$7 695.
The information clearly shows that the first respondent had lied in his opposing affidavit by saying the order sought was unenforceable as he no longer had a single cent in his Bank Account as at 9 March 2015. It is unfortunate that this lie was repeated by Mr Chiturumani for the first respondent in his submissions on 9 March 2015. The embarrassment suffered by the first respondent and his legal practitioner Mr Chiturumani was palpable on 10 March 2015 when they produced the first respondent’s Interim Bank Statement.
The court expects litigants to be candid with the court. See JL Robinsosn Agencies (Pvt) Ltd t/a Amalagamated Motor Corporation v Danford Chamwaruara & Anor HH 332-14 at p 6 of the cyclostyled judgement in which Muremba J expressed serious displeasure with the first respondent and his legal practitioner who had presented false evidence in the first respondent’s affidavit and during the hearing just like in this case. I also believe that such conduct deserves both condemnation and censure.
It is now clear to me that the first respondent wanted to mislead this court and to cause it not to grant the order sought. The first respondent wanted to enjoy the windfall of over US$90 000 without the inconvenience of the pending litigation. That is totally unacceptable. I would also want to remind Mr Chiturumani for the first respondent that he should always bear in mind that he is an officer of this court first and foremost. He owes this court the uttermost duty of honesty. Justice is not served when litigants seek to misled the court in order to have the inappropriate orders granted.
The true facts of this matter therefore is that the first respondent is still holding US$78 780 in his bank account.
I am satisfied that this matter is urgent as it meets the requirements of what constitutes urgency as outlined in a number of cases. See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 at 193 F; Gifford v Mazarire & Ors 2007 (2) ZLR 131 (H) at 134 H-135A.
It is clear to my mind that if the applicant were to wait for the observance of the normal procedures and time limits prescribed by the rules of this court in ordinary applications the relief sought would be meaningless. The facts of the matter clearly shows that the applicant has treated the matter as urgent by acting timeously at all material times and there is no inordinate delay at all. The applicant has no other alternative remedy available to ensure that the first respondent does not spend the money before the application for leave to appeal has been finalised. The relief sought by this applicant is both interim in nature and proper at law. As already exposed the first respondent’s opposing affidavit is premised on outright lies.
In relation to the merits of the case I have no doubt in my mind that the disbursement of the money to the first respondent will effectively render meaningless the pending decision by Chidziva J regarding the application for leave to appeal. If such leave is granted and applicant succeeds to have the arbitral award set aside by the Supreme Court, the applicant may not be able to recover from the first respondent the substantial amount of US$96 860. The first respondent is clearly not a man of great means and has proved to be dishonest. It is therefore very likely that by the time the appeal is decided in the Supreme Court the first respondent would have exhausted all the money.
The first respondent is still holding a substantial amount of the money in his bank account. It is fair and just that he be ordered to transfer those funds into the Trust account of his legal practitioners pending the judgement by Chidziva J on the application for leave to appeal. The applicant may succeed in being granted leave to appeal as the quantum of the award may be interfered by the higher court. This arrangement is fair to both parties in the sense that regardless the outcome of the application for leave to appeal the successful party would be able to access the available funds held in trust unlike the scenario where the applicant will suffer irreparable harm if the funds are squandered by the first respondent.
This court has inherent power to control its own process and procedures and execution of judgements is a process of this court. It has been held that this court therefore is imbued with wide discretion in deciding whether to set aside or to suspend a writ of execution or to cancel the grant of a provisional stay as long as real and substantial justice demands that such an order be granted. See Mupini v Makoni 1993 (1) ZLR 80 (S) at 83 B.
I am therefore satisfied that the balance of convenience favours the granting of interim relief sought as amended.
Accordingly I have granted the following interim relief;
It is ordered that;
- Pending the confirmation or discharge of the Provisional order the 1st respondent be and is hereby ordered to remit US$78 780 held in 1st respondent’s ZB Account to the Trust Account of his legal practitioners Messrs Chiturumani Law Chambers immediately.
- The applicant’s legal practitioners are hereby given leave to serve this Provisional order upon the respondents or their legal practitioners.
Honey & Blanckenberg, applicant’s legal practitioners
Chiturumani Law Chambers, 1st respondent’s legal practitioners
