University of Zimbabwe v Kwanele Muriel Jirira and Louis Masuko

The two respondents were employed by the applicant University as research fellows at the Institute of Development Studies. In 2010, an employment dispute arose which culminated in the dismissal of both respondents. The respondents challenged their dismissal through arbitration. On 15 July 2011, the arbitrator ruled in the respondents' favour and ordered their reinstatement without loss of salary and benefits. When reinstatement proved impossible, the respondents returned to the arbitrator for quantification of damages in lieu of reinstatement, which was done on 18 February 2012. The respondents then registered the arbitral awards in the High Court and issued a writ of execution. In October 2012, they served a garnishee order application on the applicant and its bankers (the third respondent), which resulted in the applicant being denied access to its bank funds. Prior to being served with the garnishee order, the applicant had filed two notices of appeal to the Labour Court against the arbitral awards but had not applied for a stay of execution.

• Whether the urgent chamber application was properly urgent given the applicant's delay in taking action
• Whether the High Court had jurisdiction to stay execution of a Labour Court arbitral award when the applicant had not exhausted remedies available in the Labour Court under section 92E(3) read with section 89(1)(a) of the Labour Act
• Whether the applicant had created its own urgency by failing to timeously oppose registration of the award or apply for a stay of execution

The application was dismissed. The court declined to treat the matter as urgent and therefore did not proceed to hear it on the merits. The applicant was ordered to pay the costs of the hearing.

A litigant who fails to act timeously when opportunities to do so present themselves, including failing to oppose registration of an arbitral award or to apply for a stay of execution in the appropriate forum (the Labour Court under section 92E(3) read with section 89(1)(a) of the Labour Act), cannot later seek urgent relief in the High Court to stay execution. Such a litigant is deemed to have created their own urgency and will find no sympathy from the court. Where the Legislature has created a specialized court to deal with specific issues, domestic remedies available in that court must be exhausted first before seeking complementary remedies elsewhere, unless good reasons or special circumstances exist to depart from this principle.

The court observed that the need to exhaust domestic remedies is not absolute and is not a rule of thumb, suggesting there may be circumstances where this principle could be departed from if good reasons or special circumstances are shown. However, the court did not elaborate on what such circumstances might be. The court also noted that authorities are unanimous that litigants who fail to act when the time to act presents itself cannot seek refuge in urgent applications to interfere with execution, indicating a consistent body of jurisprudence on this issue.

This case reinforces important principles in Zimbabwean labour and civil procedure law regarding: (1) the requirement to act timeously when faced with adverse decisions and not wait until execution to seek relief; (2) the principle that litigants cannot create their own urgency through delay and then benefit from urgent relief; (3) the need to exhaust domestic remedies in specialized courts (such as the Labour Court) before seeking alternative relief in the High Court; and (4) the fact that filing an appeal in labour matters does not automatically suspend execution of the decision appealed against unless a specific application for stay is made under the Labour Act.