Saturday, March 26, 2011

Highlanders lose bid to reclaim attached property


A BULAWAYO judge on Thursday dismissed with costs an urgent chamber application filed by Highlanders Football Club seeking an interim order that the Deputy Sheriff, Bulawayo, returns all attached property belonging to the club.

Dismissing the application in which Mohammed Fathi is the first respondent and the Deputy Sheriff, the second, Justice Maphios Cheda said there was no urgency in the matter. He said Highlanders had not exhausted all the local remedies as the Labour Court could have dealt with their case.
He said the club should pay the former mentor his dues. Highlanders wanted an order granted by Labour Court president, Mercy Moya-Matshanga on 31 January this year, to be suspended pending the determination of the review which the club is seeking and the application for leave to appeal to the Supreme Court.

The Deputy Sheriff has attached and removed a number of movable properties from the Club House that include the team bus, computers, television sets and soccer balls among others. The property has to be sold to raise money to pay Fathi his dues. In her ruling Moya-Matshanga ordered Highlanders, who were respondents in the Labour Court case, to pay Fathi US$4,000 in arrear salaries.

They were further ordered to pay him the sum of US$11,625 as gratuity that has accrued to him. The club is to pay the costs of the suit. Fathi through his lawyers Calderwood, Bryce Hendrie and Partners later registered the final order with the High Court, which enabled him to attach the club’s property.

Odiel Nkomo, the club treasurer in his founding affidavit filed by his lawyer, Zibusiso Charles Ncube, of Phulu and Ncube argued that the order which was granted by the Labour Court and was finally registered with the High Court is ill conceived and was obtained in “what one may say were fraudulent circumstances” without the observance of the audi alteram partem rule as they were never heard before its granting.
Nkomo notes that Fathi, after registering the order with the High Court, went on to issue a writ of execution against the club’s property.

“The 2nd respondent has attached and removed the property of the applicant and may dispose of it at any time. “The order obtained by 1st respondent was irregularly granted and to allow execution of the order is an affront to common sense and all the tenets of justice,” wrote Nkomo.

He added that Fathi is bent on fully executing the order and that the club has no other remedy other than approach the High Court for relief on an urgent basis as it is on the verge of facing irreparable harm and prejudice.

He notes that the property attached and removed has not yet been disposed.
The club’s lawyer, Ncube said they would soon be engaging in talks with Ndabezinhle Mazibuko from the law firm representing Fathi to try “to agree on a payment plan that will stop the disposal of the attached property”.