Shungu Engineering (Pvt) Ltd v Simbarashe Sangondimambo & Others

On 24 May 2011, labour arbitrator L.M. Gabilo issued an arbitral award directing the applicant to pay the respondents US$ 24,103.00 as unpaid salaries and cash in lieu of notice. The respondents registered the award with the High Court in case HC 6251/11 in terms of section 98(14) of the Labour Act on 4 July 2011, after serving the application on the applicant. The applicant did not oppose the registration. A writ of execution was issued, and the applicant's property was attached on 6 September 2011 and removed for sale in execution on 13 January 2012. The applicant filed an urgent application (HC 289/12) on 13 January 2012 to stay execution, which was dismissed by Mutema J for lack of jurisdiction and urgency. The applicant then approached the Labour Court but was also dismissed for want of jurisdiction on 15 February 2012. The applicant returned to the High Court with essentially the same urgent application, seeking a stay of execution. Part of the applicant's property had already been sold by public auction on 4 February 2012.

• Whether the applicant had demonstrated urgency justifying the grant of urgent relief
• Whether the applicant had made material non-disclosures in its application
• Whether the court should grant a stay of execution of a registered arbitral award where the applicant had delayed in challenging the award and had already had a similar application dismissed
• Whether the court could reverse an execution that had already been carried out and where third parties had acquired rights
• What costs order should follow where an applicant has acted in bad faith and abused court process

The application was dismissed with costs on the legal practitioner and client scale (higher scale costs).

The binding legal principles established are: (1) Litigants making urgent applications, whether ex parte or otherwise, must observe the utmost good faith and disclose all material facts to the court, including prior unsuccessful applications on the same or similar matters; (2) Urgency that stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules of court; (3) Material non-disclosure of facts that might have influenced the court's decision, whether willful, made in bad faith, or negligent, justifies dismissal of the application; (4) Courts have discretion to impose punitive costs orders (on the legal practitioner and client scale) where applicants demonstrate lack of good faith or abuse court processes; (5) A court cannot grant relief that would reverse an execution already carried out where third parties have acquired rights over the property sold in execution.

Mathonsi J made observations expressing strong disapproval of the applicant's conduct, stating that "the courts must always cast a dim view on litigants who pull the wool over its eyes." The judge described the applicant's conduct as "disingenuous in the extreme" and "a lamentable abuse of court process." The court noted with approval the principle from Graspeak Investments v Delta Corporation that "Courts should discourage urgent applications, whether ex parte or not, which are characterised by material non-disclosures, mala fides or dishonesty" and may make adverse or punitive orders as a seal of disapproval. The court also observed that it should have been apparent to the applicant, especially with the benefit of legal counsel, that the application had no prospects of success. The judge also expressed incredulity at the applicant's claim that an employee failed to bring the registration application to management's attention, and rejected this explanation, finding it "highly unlikely" that the arbitrator would not have sent the award to the party responsible for paying 85% of the arbitration costs.

This case reinforces important principles in Zimbabwean (and by extension South African) law regarding urgent applications and the duty of candour owed to courts. It demonstrates that courts will not tolerate material non-disclosures in urgent applications, particularly where applicants fail to disclose previous unsuccessful applications on the same matter. The judgment emphasizes that self-created urgency arising from deliberate inaction does not constitute the type of urgency warranting exceptional relief. The case also illustrates that courts may impose punitive costs orders (attorney and client scale) where applicants abuse court processes or act in bad faith. It serves as a warning that litigants cannot repeatedly approach courts with the same application without disclosing prior rejections, and that such conduct may attract severe cost consequences.