1

HH 375-15

HC 4131/13

ZIMBABWE COMMERCIAL FARMERS UNION

versus

PETER GAMBARA

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 14 January 2015, 2 & 22 April 2015

Opposed application

P. Kawonde, for the applicant

S. Gahadzikwa, for the respondent

MAFUSIRE J: This was an application for leave to execute pending appeal. The respondent was an ex-employee of the applicant. During the subsistence of his employment he had been entitled to the use of the respondent’s Isuzu Extended Cab motor vehicle, registration no. ABK 7760 (hereafter referred to as “the vehicle”). When he resigned from employment the respondent did not surrender the vehicle. The applicant brought a vindicatory application. MATHONSI J granted it. The respondent appealed. Thus, the execution of the order to return the vehicle was automatically suspended. The applicant then brought the present application.

In an application for leave to execute pending appeal the following factors are considered:

1. The preponderance of equities; that is to say the potentiality of irreparable harm and prejudice to the applicant if leave to execute is refused, or the potentiality of irreparable harm and prejudice to the respondent if leave to execute is granted,

1. The prospects of success of the appeal, whether the appeal is frivolous or vexatious or has been noted not with a genuine intention of correcting a perceived wrong but merely in order to buy time,

1. If the competing interests are equal, then the balance of hardship to either party.

see Graham v Graham 1950 (1) SA 655 (T); Zaduck v Zaduck (2)1965 RLR 635 (GD); 1966 (1) SA 550 (SR); South Cape Corporation v Engineering Management Services 1977 (3) SA 534; Fox & Carney (Pvt) Ltd v Carthew – Gabriel (2) 1977 (4) SA 970 (R); Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (H); ZDECO (Pvt) Ltd v Commercial Carriers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (H); Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC).

These factors are considered cumulatively. The court has an inherent power to control its own process. Thus, in the exercise of its wide discretion it can order a stay of execution or order that the judgment be carried into execution. The court strives to achieve real and substantial justice. In Santam Insurance Company Limited v Paget (2)[1]  GUBBAY J, as he then was, stated as follows:

“As observed by GOLDIN, J., as he then was, in Cohen v Cohen (1), 1979 R.L.R. 184 (G.D.); 1979 (3) S.A. 420 (R.) at 423 B – C, the court enjoys an inherent power, subject to such rules as there are, to control its own process. It may, therefore in the execution of a wide discretion, stay the use of its process of execution where real and substantial justice so demands. See also Graham v. Graham, 1950 (1) S.A. 655 (T.) at 658. The onus rests on the party claiming this type of relief to satisfy the court that injustice would otherwise be caused to him or, to express the proposition in a different form, of the potentiality of his suffering irreparable harm or prejudice.”

In the present case, the factors relevant for the exercise of discretion to grant or refuse execution pending appeal seems to me evenly balanced. In the vindicatory application before MATHONSI J the respondent’s defence was two pronged: that the applicant had consented to his retention of the motor vehicle, and that in any case, the applicant owed him huge sums of money in outstanding terminal benefits. He claimed set-off. However, both defences failed. On the first, the court found that, as a matter of fact, there was no mutual consent for the respondent’s retention of the motor vehicle after the termination of his employment. On the second defence, the court found that, as a matter of law, set-off was inapplicable as there were no two debts that could be said to be liquidated, equal and mutually in existence. Among other things the value of the motor vehicle had not been ascertained.

Regarding the amounts allegedly due to the respondent by way of terminal benefits here is how the learned judge dealt with the issue[2]:

“It remains for me to deal with additional evidence submitted by the Respondent and attached to his heads of argument. Specifically the Respondent attached an arbitral award in his favour that he be paid some money. Granted, the Respondent is a self-actor but there are basic rules of this court that cannot be derogated from in these proceedings. In terms of rule 235 of the High Court of Zimbabwe Rules, 1971;-

‘After an answering affidavit has been filed, no further affidavit may be filed without the leave of the court or a judge.’

“The Respondent did not seek leave to introduce the award but merely smuggled it into the court record attached to his heads of argument. He was not entitled to do that. I have therefore disregarded that evidence. In any event, even if there exists an arbitral award in the Respondent’s favour for payment of money, it does not entitle him to retain the applicant’s vehicle. What he has done is to resort to self-help which is as unacceptable as it is illegal. He cannot be the executioner in his own cause.”

Before me the issue of the amounts due to the respondent by the applicant loomed large. The respondent attached a schedule of the arbitral award that listed the amounts due by the applicant to several of its ex-employees. The total was in excess of US$77 000. Of this amount US$12 193-36 was due to the respondent. The arbitral award was awaiting registration by this court in terms of the Labour Act, [Cap 28:01].

Also attached to the respondent’s papers was another schedule of the applicant’s total indebtedness to various other creditors, including the arbitral award. It was in excess of US$2 million. The respondent’s point was that the applicant was hopelessly insolvent. He said it had absolutely no prospects of successfully trading out of its financial difficulties. He intimated that chaos reigned at the applicant union. Among other things, employees were coming and going. Some creditors now had warrants and writs of execution against the applicant. It was resorting to hiding its assets and frantically making efforts to change the ownership of its vehicles. The respondent feared that once he released the motor vehicle, it would, as it were, just disappear into a bottomless pit, much to his prejudice.   

The applicant seemed to have no cogent answer to the respondent’s assertion that it owed him large sums of money in terms of the arbitral award. Its answering affidavit was largely argumentative. It was claimed that only US$321-89 was due by the applicant to the respondent, the same figure mentioned in the founding affidavit. There was just a bare denial of the sum of US$12 193-36. Nothing was said about the arbitration award and the ex-employees’ pending application for its registration.

The applicant’s substantive point in reply was that the respondent had no right to cling onto its vehicle as set-off was inapplicable. It objected to the respondent’s reference to debts allegedly owed by it to other people as being extraneous issues that were meant to distract attention and to cloud the issues.

Undoubtedly, the respondent’s defence to the application for leave to execute is untenable. By hanging onto the applicant’s vehicle to force payment of the sums of money due to him, he has, in fact, resorted to self-help. That is unlawful. That is what this court said in the vindicatory application.

However, and be that as it may, the circumstances in the application before me are somewhat different from those obtaining when the vindicatory action was determined. Among other things, in the vindicatory application there was no proper evidence before the court of the nature and extent of the applicant’s indebtedness to the respondent. The respondent had “smuggled” that evidence into court. It is true that the court nonetheless went on to consider that evidence anyway. But the factors that the court weighed in the vindicatory application are in no way the same or similar to those that I have to weigh in the application for leave to execute pending appeal that is before me.

In the present case, the bottom line is that I must strive to do substantial justice between the parties in the interim period as they await the determination of the appeal. What this court said or found in the vindicatory application is, for the moment, in limbo by virtue of the appeal. In essence, the parties are back to where they were at the beginning, namely the respondent holding onto the applicant’s vehicle without any lawful cause, and the applicant desperately wanting it back. However, the difference now is that by a lawful decision of the arbitrator, the applicant has been adjudged to owe the respondent a significant sum of money which the applicant has not paid or said anything regarding its payment. What has also been brought to the fore by the respondent against which the applicant has also not said anything comprehensible is that it owes huge sums of money to several other creditors and that in reality it is insolvent. Against that background the applicant wants authority to execute a judgment which is suspended. I am of the view that such circumstances militate against granting that relief.

My conclusion is in no way to suggest that the respondent’s conduct in resorting to self-help is condoned. Rather, it is to afford the rights of the parties to be finally examined and determined by the superior court without having upset the status quo ante. The applicant has been waiting since February 2012 for its vehicle. The judgment by MATHONSI J was in October 2012. This application was filed in May 2013. I finally heard it only on 2 April 2015. Whilst the wheels of justice generally turn slowly, the delays in this matter have been somewhat inordinate. Neither party has explained why it has taken this long. There is only some vague reference by both of them to the appeal having been at one time or other improperly struck off by the registrar of this court, only for it to be reinstated later. With due diligence and expedition either party could have, and still can, have the appeal set down for hearing so that each of them quickly knows where they stand. In the meantime neither of them has shown any preponderance of equities operating in their favour. The nearest the applicant has said in this regard is that it needs the vehicle “… in the furtherance of its objectives…” as its business would “… be adversely affected by the continued, unjustified possession of the vehicle by the Respondent.” It was also said that if the vehicle continued to be in the possession of the respondent it would depreciate by misuse.

In response, the respondent retorted that the applicant had not shown that he was misusing the vehicle. But on his part, he has also cited nothing as being the preponderances of the equities operating in his favour, except to refer to the outstanding amounts due to him.

As regards the prospects of success of the appeal, to begin with, neither party has produced the actual notice to the Supreme Court for me to check the nature and grounds thereof. Indeed, the absence of this document, together with the very judgment of MATHONSI J aforesaid, was one of the reasons why this application was postponed the first time that it appeared before me on 14 January 2015. The applicant, on whom the onus lay to prove, inter alia, that the respondent’s appeal was noted, not with any genuine intention to correct a perceived misdirection by this court, but merely to harass it and thereby gain time, has intimated in its founding affidavit that the respondent’s grounds of appeal are twofold. The one is said to be that the superior court might well find that he holds the motor vehicle by mutual consent. The second is said to be that the superior court might well find that set-off does apply.

There is nothing said or produced by either party to help me weigh the prospects of success. In my view, whilst set-off is unlikely to succeed where the applicant is vindicating against a known asset but whose value has not been quantified and the respondent is claiming a liquidated amount, the same cannot be said of the first ground of appeal. If the respondent succeeds in showing that despite the termination of his contract of employment, the applicant nonetheless consented to him keeping the motor vehicle, for whatever reason, that defence might hold against a vindicatory application. 

There is another factor peculiar to this matter that has made me resolve not to upset the status quo ante as the parties await the determination of the appeal. It is an aspect that would normally have had to be determined in limine even though at the hearing it was not treated as such despite it having been raised at the outset in the notice of opposition. However, I saved it for last because I considered that by itself the issue was not decisive one way or the other. But taken together with the other factors above, it has helped tilt the scales against granting leave to execute. It is this. Nowhere in the papers before me is the juristic status of the applicant stated. The judgment by MATHONSI J made no reference to it. In the notice of opposition the respondent mounted a frontal challenge to the authority of the applicant’s deponent, one Blessing Mungure (“Mungure”), to bring this application. Mungure simply said in the founding affidavit that he was the director of the applicant and that he had been authorised to depose to the affidavit. In response, the respondent charged that the deponent was not a director of the applicant, that on several occasions Mungure had confided in him that he had never been finally appointed director and that someone else by the name of Phillip Tavuyanago (“Tavuyanago”) was in fact the applicant’s director. The respondent himself had been the acting director of the applicant until his resignation.

There was no answer by the applicant to the respondent’s challenge. What is intriguing was that the applicant’s answering affidavit was deposed to by yet another individual, one Gamuchirai Charumbira (“Charumbira”). He also described himself as the applicant’s acting director, allegedly having replaced Mungure. Charumbira denied that Tavuyanago had “legally” been the director of the applicant (whatever that meant) and claimed that his case was still pending at the Labour Court (whatever that case was). Nothing was said about the authority of Mungure to have mounted the application. Mr Kawonde, for the applicant, initially made reference to some resolution, purportedly of the applicant at some meeting that had allegedly clothed Mungure with the authority to bring the application. But the alleged resolution was not part of the record. It was not part of his own papers either, let alone those of the respondent. He had never seen the resolution himself. In the end Mr Kawonde conceded that he could not take the respondent’s case any further on that point.

In the circumstances, I have considered it best to leave the status quo ante intact pending the determination of the appeal. Thus the application for leave to execute pending appeal is hereby dismissed with costs.

22 April 2015

Kawonde & Company, applicant’s legal practitioners

Gahadzikwa & Mupunga, respondent’s legal practitioners