Zimbabwe Open University v Gideon Magaramombe and The Deputy Sheriff Harare N.O.

The first respondent was an executive dean in the Faculty of Commerce and Law at Zimbabwe Open University. After his fixed-term contract ended, a dispute arose regarding his employment status. The matter went to arbitration, and on 10 January 2011, the applicant was ordered to reinstate the first respondent as senior lecturer or negotiate an exit package. On 22 August 2011, the arbitrator quantified the exit package at US$77,302.00. The applicant appealed to the Labour Court and obtained interim relief on 31 October 2011 suspending the arbitral award. Meanwhile, the first respondent applied to the High Court for registration of the arbitral award on 27 September 2011. The applicant did not oppose the registration, which was granted on 15 November 2011. On 26 January 2012, the Deputy Sheriff served notice of attachment. The applicant then launched an urgent application on 27 January 2012 for stay of execution.

• Whether the deponent to the applicant's affidavit had proper authority to depose on behalf of the applicant
• Whether an error in the preamble of the application rendered it irregular
• Whether the applicant came to court with 'dirty hands' by allegedly frustrating execution
• Whether the application met the requirements of urgency
• Whether interim relief from the Labour Court could stay execution of a High Court order
• Whether the applicant acted with due diligence in seeking to stay execution

The urgent application for stay of execution was dismissed with costs for want of urgency.

For an application to be treated as urgent, the applicant must demonstrate that it acted with due diligence and did not sit on its laurels. Where an applicant is aware of proceedings for registration of an arbitral award and knows the purpose is to execute, it must either oppose the registration or timeously seek appropriate relief. Waiting until actual execution is imminent, when the applicant had opportunities to act months earlier, constitutes a failure to act with the required urgency. An order from a court of lower jurisdiction (Labour Court) cannot stay or suspend execution of an order from a court of superior jurisdiction (High Court).

The court observed that it would be improper to expect a Deputy Sheriff to choose sides by interpreting conflicting court orders - it is up to parties to bring proper applications to court to resolve such conflicts. The court also noted that while formal proof of authority (such as a company resolution) is the best evidence when a natural person acts for an artificial person, such formality need not be insisted upon in every case, particularly where there is a history of litigation between the parties and no evidence suggesting the person lacks authority. The court expressed approval of the principle from Associated Newspapers of Zimbabwe that courts cannot connive or condone open defiance of the law and that citizens must obey the law and argue afterwards.

This case reinforces important principles in Zimbabwean (and by extension South African) law regarding: (1) the requirements for urgency in applications, particularly that applicants must act with due diligence and not wait until execution is imminent; (2) the hierarchy of courts, confirming that orders from a lower court (Labour Court) cannot suspend or stay execution of orders from a superior court (High Court); (3) the 'dirty hands' doctrine and the need for parties to approach courts properly rather than self-help in defying court orders; and (4) procedural requirements for authority when artificial persons litigate through natural persons. The case serves as a warning that parties aware of pending execution must act timeously to seek relief rather than waiting until the day of reckoning.