City of Harare v Stanley Tavanana Gomo

The respondent was employed by the applicant as Chief Security Officer. His contract was terminated and the parties signed a severance package agreement in May 2008 providing for various payments and benefits including monetary payments, transfer of a motor vehicle, and transfer of two immovable properties (one industrial and one residential). The agreement provided that until full implementation, the respondent remained employed and entitled to salary and benefits. The applicant paid the monetary portion by 31 May 2008 and transferred the vehicle, but encountered problems transferring the properties. A dispute arose and was referred to arbitration. On 12 November 2010, the arbitrator (a former Chief Justice) ruled that the respondent remained employed until the properties were registered in his name, entitling him to salary and benefits from 1 August 2008 until such registration. The arbitral award was registered as an order of court on 16 January 2014. The last property was transferred on 20 March 2014. On 12 September 2014, the respondent obtained a writ of execution for $113,147.24 ($70,870.24 for accumulated salaries/benefits to May 2014, plus $42,277 for further amounts allegedly due). The applicant's property was attached. The applicant applied to set aside the writ, and the respondent counter-applied for payment of $80,732.10 (having revised his calculations upward).

• Whether a writ of execution can be issued against a registered arbitral award that does not sound in money and where amounts are disputed and unquantified
• Whether the Registrar should have been joined as a party to the application to set aside the writ
• Whether the application should have been brought as a review under Order 33 of the High Court Rules
• Whether a writ of execution can be issued based on unilateral calculations without affording the other party an opportunity to respond
• Whether the respondent could properly seek a monetary order via counter-application for amounts partially included in an already-issued writ

1. The writ of execution issued on 12 September 2014 in HC 5536/13 is set aside. 2. The respondent's counter-application is dismissed. 3. The respondent shall bear the costs of both the application and the counter-application.

A writ of execution can only be issued pursuant to Rule 322 against a judgment that sounds in money, or for delivery of goods/premises, or ejectment. An arbitral award that has been registered as an order of court but which does not specify the quantum due is incomplete and not capable of execution by writ. Amounts that are merely easily ascertainable or capable of calculation are insufficient - the award must actually quantify the sum due and such quantification must be determined by the arbitrator in the presence of both parties. Unilateral calculations by one party, even if based on the other party's documents, cannot form the basis for a writ of execution. The principles of natural justice, specifically audi alteram partem, require that where amounts in a writ are disputed, both parties must be heard before the writ issues. An incomplete or unquantified arbitral award requires further arbitration for quantification before it can be executed.

The court observed that there was no reason to cite the Sheriff as second respondent, as like the Registrar, he had no interest in the matter beyond getting paid his costs of execution. The court noted that the situation regarding the respondent's potential ongoing entitlement to salary and benefits was problematic - the interpretation of the implementation clause and arbitrator's award could potentially create a situation where the respondent could claim employment and benefits ad infinitum as long as any arrears existed, but stated this was an issue for arbitration, not for determination in the present proceedings. The court expressed that it found it 'intriguing' that the respondent and his legal practitioners felt confident they could execute an order in such raw form, and 'surprising' that the Registrar issued the writ in those circumstances.

This judgment reinforces important principles in Zimbabwean civil procedure regarding execution of arbitral awards. It establishes that: (1) arbitral awards must be complete and quantified before they can be registered and enforced through writs of execution; (2) awards that are merely capable of easy calculation are insufficient for execution - actual quantification by the arbitrator is required; (3) unilateral calculations by one party, even if based on easily ascertainable information, cannot substitute for proper arbitration and quantification; (4) the audi alteram partem rule applies to the issuance of writs of execution where amounts are disputed; (5) procedural shortcuts through counter-applications cannot cure fundamental defects in execution processes. The case provides guidance on when the Registrar need not be joined in applications to set aside writs, and clarifies the distinction between form and substance in determining who has an interest in execution proceedings.