Retan Investments (Pvt) Ltd v Ishmael Ndlovu and Others

The applicant, Retan Investments (Pvt) Ltd, employed six respondents in various capacities from managers to shop assistants. Between January and February 2014, the applicant terminated the employment contracts of all six respondents without paying their terminal benefits. The respondents collectively referred their dispute to the Labour Officer for conciliation, which resulted in a Certificate of No Settlement. The matter proceeded to arbitration where the respondents claimed terminal benefits totaling US$47,983.60. The Arbitrator, Mr Godfrey H. Muzondo, dismissed the respondents' claims on 8 April 2014. The respondents appealed to the Labour Court where Justice Kudya overturned the Arbitrator's decision on 17 June 2015, granting judgment in favor of the respondents by default after the applicant failed to appear despite warning. On 22 June 2015, respondents filed a chamber application for registration of the judgment with the High Court. Notice was served on 23 June 2015 by affixing it to the applicant's outer gate after unsuccessful diligent search. Mangota J registered the order on 14 August 2015 for payment of US$51,619.88. A writ of execution was issued and the Sheriff attached the applicant's property. The applicant then filed this urgent chamber application for stay of execution on 9 October 2015, simultaneously filing a court application for rescission of the registered judgment.

• Whether the application for stay of execution met the requirements for urgency under the High Court Rules
• Whether service of the chamber application for registration by affixing to the gate was valid service under Order 5 Rule 40 of the High Court Rules 1971
• Whether the judgment by Kudya J sounded in money and was registrable and executable
• Whether the applicant's delay in opposing the various court processes was justified

The application was dismissed with costs.

Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules for urgent applications. A matter is only urgent if, at the time the need to act arises, the matter cannot wait, not when the party has allowed the day of reckoning to arrive through its own inaction. Service of court process by affixing it to the outer or principal door or gate of premises is valid and sufficient service under Order 5 Rule 40 of the High Court Rules 1971 where the person to be served keeps their residence or place of business closed and thus prevents normal service, or cannot be found after diligent search. A party who keeps premises locked and inaccessible, making service impossible, is presumed to have seen notices properly affixed to the premises in accordance with the rules.

The court observed that the applicant's premises were always kept under lock and key with cameras mounted such that whoever arrived at the gate could be seen by the occupants, and that when police officers, ZIMRA officers or the Sheriff were detected at the gate, the occupants would not open the gate or attend to them. This pattern of conduct suggested a deliberate strategy to avoid service of process. The court also noted that the applicant's explanation for delay—changes of legal practitioners—was insufficient to justify the failure to take timely action to protect its rights. While the applicant's counsel attempted to suggest that the notice could have been blown away by the wind, the court found this explanation implausible given the established pattern of the applicant ignoring court processes.

This case is significant in Zimbabwean jurisprudence for reinforcing the principles governing urgent applications and establishing that self-created urgency through deliberate or careless inaction will not be entertained by the courts. The judgment also clarifies the validity of service by affixing documents to premises where the occupant keeps the premises closed and prevents normal service, confirming that such service complies with Order 5 Rule 40 of the High Court Rules 1971. The case serves as a warning to litigants that ignoring court processes and deliberately avoiding service will not be tolerated, and courts will not grant relief to parties who create their own urgency through neglect or deliberate abstention from action. It also demonstrates the court's commitment to ensuring that successful litigants, particularly employees who have obtained judgment for terminal benefits, are not frustrated in executing their judgments by dilatory tactics.