UCHENA
J: The applicant is the Commercial
Workers Union of Zimbabwe, a union which represents the interests of commercial
workers in Zimbabwe.
The respondents are members of the union who filed an ex parte application in the magistrate's court and obtained the
following interim order:
“That pending
the finalization of this matter the following relief is granted:
1.
The respondents be and are hereby ordered to cease,
refrain and desist from hindering, obstructing or interfering with the
operations of the National Executive duly elected at the National Congress of
the 13th of February 2010.
2.
The eighth respondent John Chifamba, be and is hereby
ordered not to hinder or obstruct the duly appointed General Secretary, Mr G
Karikuimba from occupying his office and discharging his duties as the applicant's
General Secretary.
3.
The applicant seeks a further order against the first
and seventh respondents in their capacities as the remaining signatories to the
applicant's CBZ Bank Account interdicting them from withdrawing or transferring
funds from the said account pending the resolution or renewal of their mandate
by the National Executive elected on the 13th of February 2010.
4.
Should any report be made to the Zimbabwe Republic
Police by the applicant's representatives of breach of any terms of this order,
the Police are directed and ordered to arrest the respondents or any one of
them and keep him/her or them in custody and cause him/her or them to appear in
court to answer contempt of court charges.”
The
order granted has far reaching consequences. It enables the respondents to
manage and control the affairs of the union, and bars the applicants from
performing any functions on behalf of the union. It takes out of office the
Secretary General of the applicant and replaces him with the second respondent.
It bars the applicant from withdrawing or transferring funds from the union's
CBZ account. It orders the police to arrest the applicants should any breach be
reported by the respondents, and keep them in custody and take them to court to
answer contempt of court charges. The later has the effect of taking away
discretion from the police who are ordered to arrest on receiving a report
without evaluating the report, and to keep the applicants in custody without
exercising their discretion on how to bring them to court. Such an order
conflicts with the Criminal Procedure and Evidence Act [Cap 9.07], which gives the police a discretion on how to react to
reports they receive from members of the public, and the Constitution as
regards the applicants' rights should they be arrested if a report is made
against them. Judicial officers must check and ascertain the legality of orders
before granting them.
On
the return day the magistrate found that there were material disputes of fact
and referred the case to trial. The respondents applied for contempt
proceedings seeking to enforce the ex
parte order in spite of the dispute between the parties having been
referred to trial. The magistrate found for the respondents. The applicant
appealed to this court against the magistrate's decision. The respondents then
applied for execution pending appeal. The magistrate granted that application.
The applicant's appealed to this court against that order, and filed this
application in which it seeks an interim order staying the execution of the ex parte order pending the hearing of
the appeal under case No CA 561/10 and the trial of the matter under Case No
12283/10.
The Historical Background
The
applicant's deponent Titus Magaya, was the union's president before the 13 February 2010 elections
and was on 13 February 2010,
nominated by six regions of the union for the post of president. The first
respondent was nominated by one region. Mr Magaya was thus elected president of
the applicant and Mr Zvandasara the first respondent his deputy. Authority to
represent the union follows the popular vote, which is in this case on the
applicant's side.
Thereafter
factionalism arose in the union leading to the South African declaration of
16-17 March 2010, which resolved the disputes by restoring the status quo as it was on 5 December 2009. See p 57 of the
applicant's application. There after it seemed every one agreed with the
restoring of the status quo as it was
on 5 December 2009.
On
p 60 of the applicant's application is a letter dated 18 March 2010 in which,
Titus Magaya, as the applicant's president, Felistus Wazulu as its financial administrator
and Lovemore Mushonga as its general secretary, wrote to the branch manager of
The CBZ Bank where the union's account
is held as follows:
“We write to
request you to defrost our above account. We have managed to resolve our
squabbles and we have since withdrawn the application before the High Court of
Zimbabwe (see attached copies of notice of withdrawal and declaration).
We further
advise that the signatories to the account will be accessed (sic)
a minimum of two persons the president, general secretary and financial administrator.
We also request you to let us have access of funds from the account as we would
like (sic) pay staff salaries for
February and national executive members allowances and rentals.”
On
p 61 is the notice of withdrawal signed by Amos Vhori who was leading the
faction which was opposing the election results of the 13 February elections.
The notice of withdrawal is dated 18 March 2010.
On
31 March 2010 the
first and second respondents in this case wrote a letter to the manager of FBC
Bank. Their letter reads as follows:
“We write to
advise that the above account be closed and transfer the balance amount to CBZ
account 01121012770020. The C.W.U.Z resolved their leadership dispute (sic) which had caused the C.B.Z account
(sic) frozen”
The
letter is signed by G Karikuimba the second respondent, and T. Zvandasara the
first respondent. The C.B.Z bank account number is the one which Magaya and
others had asked the bank to unfreeze by letter dated 18 March 2010.
There
was no dispute in the union until 14 July 2010 when the respondents filed an ex parte application in the magistrate's
court.
Prospects of success
An
order staying the order granted by the magistrate in the ex parte application can only be granted if there are prospects of
success for the applicant in the appeal pending before this court and
proceedings in the magistrate's court.
The
following facts favour the applicant's prospects of success.
Mr Magaya the
applicant's deponent was the union's president before the 13 February 2010
elections. He was on 13
February 2010 elected by six regions versus the fist respondent's
one region. The applicant therefore seems to hold the legitimate mandate to
represent the union. The South African declaration endorsed the applicant's pre
13 February 2010 mandate to lead the union.
The
declaration was endorsed by all factions including the respondents, as
demonstrated by the respondents' letter on p 63 of the applicant's papers. The
respondents' challenge to the legality of the South African declaration, may
therefore not succeed because, it was immediately thereafter endorsed by the
union's factions between 18 and 31
March 2010. The endorsements were in writing, and were made by
local members of the union to local institutions, clearly advising that the
C.W.U.Z had resolved its leadership disputes. The endorsements, gave the
applicant the mandate to manage the Union's
affairs which the orders granted ex parte
under 1 to 3 seeks to bar it from exercising. It therefore seems to me that the
order granted against the applicant is going against the union's wishes. It is
unlikely to be upheld on appeal and at the trial in the magistrate's court. The
applicant's application for the stay of execution of the order, must therefore
succeed.
The
issue of costs does not arise as this is an interim order. It will be dealt
with on the return day.
It is therefore
ordered as follows:
That the rule nisi that was granted by the court a quo under case number MC 121283/10 be
and is hereby stayed pending the hearing of the appeal under case number CA 561/10 and the trial of the matter under case number 12283/10.
Maganga & Company, applicant's legal practitioners
Donsa-Nkomo &
Mutangi, respondent's legal practitioners
