20 December 2012

Zimbabwe: Court Grants Masvingo Workers Right to Sell Council Property

Masvingo Municipality workers yesterday got a High Court green light to auction council property they attached to settle US$3,5 million salary arrears. This was after the municipality's urgent chamber application to block the auction was thrown out by the High Court.

Justice Andrew Mutema ruled that the mere fact that council pleaded hardship and fears for collapse of service delivery did not constitute the urgency contemplated by the High Court rules in applications of that nature.

The court found that council could have acted as soon as the arbitration award was registered in October this year and not to wait until attachment.

"The need to act, having arisen on October 9 2012, what did the applicant (council) do? Did it act? It did nothing save to sit back and bay-watch to await the imminent arrival of the day of reckoning, that is, seizure and removal of property as if it did not know that the process was inevitable following the registration of the award.

"One cannot be faulted in concluding that even the service of the notice of attachment and seizure failed to jolt the applicant into acting to protect its property. It remained inert as if perhaps relishing in a utopian dream. The applicant is simply pleading hardship or mercy but these cannot ground the urgency contemplated by the rules of the court.

"Hardship is what the applicant ought to have foreseen and guarded against when the need to act arose," ruled Justice Mutema.

The court, Justice Mutema said, could not bend the rules on the grounds of seeming hardship in a situation where a legally represented litigant remained "sluggard" for close to two months without sound explanation.

The workers attached the movable property, including fire tenders, ambulances and computer servers, on December 5 in fulfilment of a Labour Court award.

The Labour Court ordered council to pay its workers salary arrears to the tune of US$3,6 million. The award was registered at the High Court, prompting the deputy sheriff to execute the order.

Council, through its lawyers Chihambakwe, Makonese and Ncube argued that it had filed an application to rescind the judgment and that execution should be stayed pending determination of the application.

Council also argued that its operations would collapse if the property were sold. It also challenges the quantification of the arrears.

But the Zimbabwe Urban Council Workers Union secretary-general Mr Moses Mahlangu deposed an affidavit challenging the authenticity of the application for rescission of judgment.

"Until today, first respondent's (Zimbabwe Urban Council Workers' Union) legal practitioners of record had never been served with the alleged rescission application.

"Until today, the first respondent has not served the rescission application to first respondent or the workers committee," he said.

The net conclusion to the case, according to the workers, was that the rescission application could be an afterthought by council. Quantification, the workers say, was done by consent and the award in question was never contested.

Meanwhile, the Masvingo United Residents and Ratepayers Association yesterday accused the city councillors of gross incompetence it says led to the attachment of council's movable assets.

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