CMED Private Limited v Kenneth Maphosa and Sheriff of Zimbabwe N.O and Zimbabwe Revenue Authority

The first respondent, Kenneth Maphosa, was a former employee of CMED Private Limited (the applicant). After successful litigation in the Labour Court, Maphosa registered his Labour Court judgment as an order of the High Court for purposes of execution in February 2014. The writ of execution was for recovery of US$46,800.00 in damages, back pay totaling US$38,814.50 (from August 2005 to July 2009), plus allowances, interest of US$45,646.04, totaling US$131,261.43 as at 1 October 2014. The parties entered into a deed of settlement on 2 July 2014, agreeing that US$163,346.73 would be paid in four tranches from July to October 2014. The applicant defaulted on payment. When the sheriff attached property for removal on 3 December 2014, the applicant filed an urgent application to stay execution, arguing that US$65,204.34 of the amount was due to ZIMRA in taxes and the first respondent could not recover this amount. The applicant only raised the tax issue with the first respondent on 22 October 2014, three months after the deed of settlement.

• Whether the requirements of urgency were met for the urgent chamber application
• Whether the High Court had jurisdiction to interfere with execution of a registered Labour Court order when the Labour Act provided alternative remedies
• Whether the applicant had other suitable and satisfactory alternative remedies available in terms of the Labour Act
• Whether registration of a Labour Court order for execution in the High Court removes the matter from the jurisdiction of the Labour Court
• Whether leave to appeal should be granted despite poor prospects of success

The matter was struck off the urgent chamber book with costs on an ordinary scale. The application for leave to appeal was granted, with costs to remain in the cause.

The binding legal principles established are: (1) The mere registration of a Labour Court order for purposes of execution in the High Court does not remove the matter from the Labour Court's jurisdiction or supplant the Labour Court's powers to deal with the matter. (2) Where the Labour Act provides a suitable, viable, and satisfactory remedy (such as section 92C allowing variation of orders), an applicant cannot approach the High Court on an urgent basis claiming no alternative remedy exists. (3) For urgency to be established, an applicant must act when the need to act arises; deliberately failing to address an issue (such as tax obligations) when entering into a settlement agreement and only raising it months later when execution is imminent does not constitute urgency. (4) An applicant seeking to stay execution of a registered Labour Court order must first explore remedies available under the Labour Act, including applying to the Labour Court to vary its order under section 92C(1)(b) on the basis of mistake common to both parties.

Chigumba J made several significant obiter observations: (1) "The power of the lawyer is in the uncertainty of the law" - expressing concern that legal practitioners have "with regrettable intransigence, ignored the relevant law, at their own and their client's peril, or actively exploited this seemingly grey area, for a very long time." (2) The court called for legislative intervention: "The time has come for the Legislature to take away the power of lawyers to exploit this apparent uncertainty in the law. In my view the solution is simple. Give the Labour Court its own enforcement mechanism." (3) The court criticized the ethical impropriety of the applicant's legal practitioners addressing the judge's assistant directly on questions of law and requesting the matter be placed before another judge after an adverse ruling. (4) The court expressed puzzlement as to "why legal practitioners continue to grapple with the requirements of urgency, and why they continue to ill advice their clients, resulting in a waste of the court's time and a corresponding waste of resources" given that the test for urgency is "settled...so settled as to be cast in stone." (5) The court noted it granted leave to appeal despite holding the view that the appeal has no prospects of success, to provide an opportunity for divergent legal positions to be ventilated before a fuller bench.

This case is significant in Zimbabwean labour and civil procedure law for: (1) Clarifying that registration of Labour Court orders for execution in the High Court does not automatically remove labour matters from the Labour Court's jurisdiction or vest exclusive jurisdiction in the High Court. (2) Establishing that the High Court's inherent jurisdiction to regulate its own process does not justify usurping Labour Court powers where the Labour Act provides suitable remedies. (3) Reinforcing the strict application of urgency requirements, particularly that urgency stemming from deliberate abstention from action until the deadline approaches is not the type of urgency contemplated by the rules. (4) Highlighting section 92C of the Labour Act as an alternative remedy allowing the Labour Court to rescind or vary determinations or orders, including on the basis of mistake common to both parties. (5) Identifying a systemic gap in the law regarding enforcement of Labour Court orders and calling for legislative intervention to give the Labour Court its own enforcement mechanism. (6) Demonstrating judicial concern about legal practitioners exploiting uncertainty in the law regarding jurisdiction between the High Court and Labour Court.