IN
CHAMBERS Before
MAVANGIRA
JA:
In
chambers in terms of r5 of the Rules of the Supreme Court, 1964.
For
the sake of completeness, the following observation is noted.
Despite
being served with all the relevant papers the second respondent did
not file any papers in response to this application. It was therefore
barred. It also did not attend the hearing in chambers.
Two
men who claimed to be former employees of the first respondent and
also to be represented by the second respondent appeared in chambers
and indicated that their attendance was solely for the purpose of
listening to the proceedings.
Counsel
for the applicants and the first respondent indicated that they had
no objection to the presence of the two.
This
is a chamber application in which the applicants seek an order in the
following terms:
“1.
The application for substitution of Respondent in case number
SC570/14 be and is hereby granted.
2.
That the Applicants substitute the 2nd
respondent and be listed in their individual capacity and names as
2nd-35th
Respondents and the 2nd
Respondent be listed as the 1st
Respondent in the appeal under case number SC570/14 in place of 2nd
Respondent.
3.
That all pleadings, documents and papers under SC570/14 filed with
the honourable court from the date of this order shall reflect this
substitution.
4.
That there be no order as to costs.”
BACKGROUND
Part
of the background to this matter may conveniently be extracted from
the judgement of the Labour Court LC/H/272/2012 which prompted the
appeal in SC 570/14.
The
parties before the Labour Court were Freda Rebecca Mine Holdings
Limited as the appellant and Amalgamated Mine Workers Union as the
respondent.
What
was before the Labour Court in LC/H/272/2012 was an appeal against an
arbitral award, the operative part of which read:-
“The
Award
Having
carefully considered the evidence and both oral and written
submissions from parties I hereby declare that Respondent indeed made
unilateral variation in the new contract of employment.
1.
I therefore declare the new contract of employment null and void.
2.
As a remedy, I hereby order parties to seriously engage themselves in
fresh negotiations before a new contract of employment is introduced
at Freda Rebecca Mine.”
The
following is stated at pp 1-2 of the cyclostyled judgment of the
Labour Court:
“The
material background facts to the matter are as follows:
The
appellant operates a mine known as Freda Rebecca Gold Mine situated
in Bindura. The respondent is a Trade Union representing mine workers
in Zimbabwe. Sometime in 2009 the appellant introduced a revised
contract of employment which was according to the Appellant signed by
a majority of its employees. There were some employees who refused to
sign the revised contracts of employment who were consequently
dismissed from employment. These workers challenged the lawfulness of
their dismissal through the Labour Official. When the conciliation
failed the matter was referred to an arbitrator and is still pending.
The
present matter however concerns an
unspecified number of employees on whose behalf the Respondent lodged
a complaint to the Labour Officer. The
matter was referred to the Arbitrator with the term of reference
being “whether the Respondent could unilaterally vary the terms of
contracts of employment with its employees”. The Arbitrator handed
down an award in the terms as referred to supra. Dissatisfied with
the award the Appellant then lodged the present appeal.” (emphasis
added).
The
Labour Court struck the appeal off the roll on a technicality.
It
opined that Freda Rebecca had “thrown itself out of court” by
failing to comply with the arbitral award or alternatively failing to
apply for the suspension of the operation of the award before
instituting the appeal.
Freda
Rebecca appealed to the Supreme Court against this decision - Appeal
No. SC570/14.
On
the date set for its hearing, the said appeal was postponed
sine die by
the Supreme Court. The postponement was apparently due to issues
that arose regarding the citation and/or representation of the
parties, which issues were to be sorted out during the period of the
postponement. The issues apparently arose due to misunderstandings
that developed between the applicants and the second respondent.
The
applicants thus instituted the instant application with the
anticipation that their success in this application will enable their
participation in their individual capacities in the appeal in
SC570/14, which appeal is expected to be re-set down for hearing
after the determination of this application.
SUBMISSIONS
IN CHAMBERS BY THE APPLICANTS
Mr
Zhuwarara
for the applicants, moved for the granting of the order sought on a
number of bases.
He
submitted that the applicants are the individuals whose contracts
were summarily varied and that it is these same contracts that have
been the subject matter of the dispute since 2012. He submitted that
contrary to what the first respondent contended in its opposing
papers, this is not an application for joinder but one for
substitution of the second respondent by the applicants. He further
submitted that whilst the workers' committee has no legal persona
and therefore cannot represent workers, a trade union can do so as it
has statutory ability to represent workers. He also submitted that in
any event, as the appeal by the first respondent in SC570/14 deals
with a procedural and not a substantive issue, there could be no
prejudice to the respondents.
Mr
Zhuwarara
went on to submit that in any event, if the applicants are successful
in SC570/14, the matter will be remitted to the Labour Court where
the first respondent can make another complaint about or raise the
issue of the representation of the parties, if they so wish.
Furthermore, that the cause of action or justification for this
application was the fact that the relationship between the applicants
and the second respondent had become discordant.
He
submitted that the applicants' position is that if there are other
employees (former employees) who want to continue to be represented
by the second respondent they may continue to be so represented, but
they (the 34) now want to ventilate their cause without the second
respondent.
It
was also Mr Zhuwarara's
submission that the second respondent has always acted in a
representative capacity and did not at any time supplicate for its
own rights. There has thus never been any confusion as to who the
parties were.
He
submitted that s29(4)(d) of the Labour Act put to rest the question
whether or not the applicants (and others) in their collective
complaint, could be represented by the second respondent.
Mr
Zhuwarara
also
submitted that the application is not one for joinder as it does not
seek the joining of a party who was not a party before. It is rather
the “unpacking” of the real respondents in that matter that is
sought.
There
has not been any dispute, he submitted, that these 34 applicants had
their contracts unilaterally varied or that they are former employees
of the first respondent. They cannot therefore be said not to have
sufficient interest in the matter.
The
applicants want the opportunity to respond to the first respondent's
appeal in which it is appealing against the striking off of their
appeal in the Labour Court.
In
the applicants' view the first respondent has adopted the wrong
procedure by appealing against the striking off of their appeal by
the Labour Court.
It
was also his further submission that the applicants want to be
substituted because they were already part of the proceedings but
they now want to extricate themselves from the one who was
representing them.
The
substitution, he submitted, is in terms of the common law and s85 of
the High Court rules referred to by the respondent does not and
cannot apply. He cited Zimbank
Ltd & Anor v
Consolidated
Piping & Fitting
2000 (1) ZLR 672 at 674C-D as the guideline in the determination of
this application.
RESPONDENT'S
SUBMISSIONS
In
response Mr Kwirira
for the first respondent made submissions to the following effect.
From
an examination of the draft order sought, it is clear that what is
being sought is not substitution but joinder. The High Court Rules
relating to substitution must therefore come into play as the Supreme
Court rules do not provide for such an application.
Rules
85 and 85A of the High Court rules ought to apply to the instant
application.
An
examination of the stated rules will show that the application is
defective as the order sought does not provide for the removal of a
party and the replacement thereof with another but instead seeks
joinder of the applicants to the parties already cited in SC570/14.
The
application is vague and embarrassing and bad at law and ought to be
dismissed. The case of Trop
v SA Bank
1992 (3) SA 208 at 221 A-E was cited in support of the submission.
It
was also submitted that in terms of ss29 and 30 of the Labour Act a
trade union has the ability and capacity to represent its members in
legal proceedings. However, that must be distinguished from being a
party to the proceedings. The sections do not provide that a trade
union becomes party in proceedings in which they represent their
members. In addition, the parties who appeared before the Labour
Officer for conciliation are the same parties cited in SC570/14 and
the applicants were not cited as parties thereto.
It
was also submitted that as the applicants were not parties in
pertinent proceedings before the Labour Officer, the arbitrator, the
Labour Court and finally the Supreme Court where an appeal is
pending, it does not make sense for them to now at this stage, seek
to be made parties to the litigation.
Mr
Kwirira
further highlighted that when the first respondent raised the issue
of the second respondent's locus
standi
before the arbitrator no action was taken to have the applicants
joined at that stage, yet the applicants now want to be parties to an
appeal whose origin was birthed in those proceedings.
Neither
the arbitrator's award nor the Labour Court judgement cite or speak
of the applicants. He submitted that the law does not countenance
this as this would be tantamount to allowing them to enter the
proceedings through the back door.
Mr
Kwirira
quoted remarks, though obiter,
made in TelOne
(Pvt) Ltd Communications & Allied Services Workers Union
2006 (2) ZLR 136 at 141B where CHIDYAUSIKU CJ stated:
“…… Mr
Hwacha's contention is that a party that was not privy to the
original proceedings cannot apply for the review of such proceedings.
I recognise the cogency of this submission. The proposition that only
parties to the proceedings can challenge on review or appeal the
outcome of such proceedings admits of little doubt.”
He
submitted that applied in reverse quoted remarks buttress his
argument.
He
described the applicants' quest as an “ambush” of the point of
law that had been raised by the first respondent in the earlier
proceedings. He prayed for the dismissal of the application.
WHAT
IS THE NATURE OF THIS APPLICATION?
The
applicants have labelled it an application for substitution. The
respondents on the other hand argue that it is in effect an
application for joinder.
The
Concise
Oxford English Dictionary
of
Current English
7ed, 1982 provides the following, amongst others, definition for the
word 'substitute':
“(person
or thing) acting in place of another; make (person or thing) fill a
place or discharge a function for or for another; put in exchange
(for).”
For
'joinder' it provides:
“joining,
union.”
The
import of para 2 of the order sought is that while the second
respondent remains, as is the case already, a respondent in SC570/14,
the applicants are also made additional respondents. The effect of
the order, if granted, would be to alter the numbering order, with
the previously lone respondent becoming the first respondent while
the applicants become the second to the 35th
respondents.
Thus
the applicants do not seek to substitute the second respondent.
Rather, they wish to be added as co-respondents. There is no removal
of one party and replacement with another as should happen in a
substitution.
On
the face of it, this is a clear case in which joinder and not
substitution is being sought.
On
the other hand, Mr Zhuwarara's
repeated and categorical submission in which he maintained that the
relief sought by the applicants in not joinder but substitution, is
contradictory of the terms of the order that is being sought before
me.
For
that reason, the applicants' papers do not seek to meet the
requirements of an application for joinder and they do not do so. In
the same breath the effect of the terms of the order sought is in
effect a joinder and not substitution.
In
these circumstances, the aptness of Mr Kwirira's
citation of the case of Trope
& Ors v The South African Reserve Bank
1992 (3) SA 208 at 221A-E becomes self-evident. Importantly, the
appeal court quoted with approval the lower court's statement that:
“And
if the pleadings lack sufficient clarity to enable the defendant to
determine those facts and hence the case he has to meet, the
pleadings are vague and embarrassing.”
Mr
Kwirira's
submission that at the arbitration proceedings the first respondent
raised the issue of the second respondent's locus
standi
but no action was taken then to have the applicants joined at that
stage, was not disputed by Mr Zhuwarara
for the applicants.
Mr
Zhuwarara's
submission in response was merely that the applicants were only
praying for an order to be granted in their favour only in relation
to the appeal in SC540/14 and not to any other case.
This
stance, in my view, tends to lend credence to Mr Kwirira's
argument that the applicants seem to want to want to circumvent a
legal point earlier raised by seeking to now individually enter the
fray at this stage.
This
court not being a court of first instance is not the proper forum for
such an application.
In
any event, for reasons discussed above, the applicants seek to
participate in the appeal in SC570/14 by way of an application that
defies a specific description recognised at law.
The
nature of the application before me is unascertainable by reason of
the pleadings filed being vague and embarrassing.
THE
LAW
The
aptness of the case of Tel
One (Pvt) Ltd v Communications & Allied Services Workers' Union
2006 (2) ZLR 136 (S) at 143, also cited by Mr Kwirira,
comes to the fore.
As
a party who was not privy to the original proceedings cannot appeal
against or challenge on review those earlier proceedings, it is only
logical that a party who was not privy to the original proceedings
cannot become a party to the appeal emanating from those proceedings
in the manner sought by the applicants.
In
casu
the second respondent substituted itself for the applicants and other
employees entirely. It did not cite itself in a representative
capacity. There was no reference at all to the applicants and the
other employees. This is so despite the fact that the rights that may
accrue when the fairness or otherwise of their dismissals is finally
determined would affect them individually.
The
effect of the non-citation or the lack of reference to the applicants
is that the award by the arbitrator ordered that there be
negotiations between the employer and the Trade Union in
circumstances where the contracts to be entered into would be between
the employer and the individual employees.
This
is an untenable result. I daresay it is an incompetent order.
It
is trite that for a party who has a real interest in the matter in
dispute before a court to be bound by a judgement of the court, such
party should be cited.
It
is also trite that a judgement may not be made affecting a person or
entity that was not a party to the proceedings.
The
application in casu
is bad at law. It is vague and embarrassing.
In
addition, on the facts of this matter, whether it be an application
for substitution or for joinder, this court is not the proper forum
before which to make it. It cannot therefore succeed.
It
is accordingly ordered as follows:-
“The
application is dismissed with costs.”
Chambati
Mataka & Makonese,
applicants' legal practitioners
Magwaliba
& Kwirira,
1st
respondent's legal practitioners
1.
Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40/15
at page 8 of the cyclostyled judgement
2.
Mashingaidze v Chipunza & Ors HH688/15; Women & Law in
Southern Africa Research & Education Trust v Shongwe & Others
HH202/03
