MAFUSIRE J: The constitution
for the third defendant (hereafter referred to as “the Union”) was
registered with the then Industrial Registrar in 1962. It listed eleven
objects. The first of these was to regulate the relations between members and
their employers, and to protect and further the interests of members in
relation to their employers. The membership clause was couched as follows:
“5. MEMBERSHIP
(1)
Membership
of the Union shall be open to employees in Salisbury Municipality Undertaking
who are employed in the occupations listed in the schedules 'A' and 'B'.”
Schedule “A” had
cashiers, health aids, constables, telephone attendants, messengers, assistant
projectionists, welfare assistants and cooks. Schedule “B” had labourers.
In terms of that
constitution the second defendant (hereafter referred to as “Excom”)
would constitute the governing body of the Union. The members of Excom would be
elected at the annual general meeting and would serve for one year. They would
be eligible for re-election. They could be removed from office on the decision
of a general meeting. General meetings would be held once every three months.
There were other ways in which members of Excom could vacate office. These
were:
·
resignation;
·
suspension;
·
expulsion from the Union;
·
absenteeism;
At all relevant times the
plaintiffs and the first defendant were all members of the Union. The first
defendant was the chairman of Excom. The first plaintiff was the vice-chairman.
The second plaintiff was chairman of one of the sub-committees of the Union. On
10 May 2011 the plaintiffs issued out a summons against the first defendant,
Excom and the Union. Apart from costs they sought three declaratory orders and
one directive. The three declaratory orders were these:
Ø that
Excom's term of office had expired;
Ø that
the “seats” in Excom had become
vacant;
Ø that
the first defendant had “legally ceased”
to be a member of the Union and was no longer entitled to hold any office in it.
The directive was this:
Ø that
the Union had to hold elections for Excom within forty five days of the date of
the court order.
The basis for seeking a declaratur that Excom's term of office
had expired and that the “seats” in
it had become vacant was that it and the first defendant had been elected way
back in February 2006 and yet neither any other elective general meeting nor
the triennial meetings had ever been held since then.
The basis for seeking the
declaratur that the first defendant
had “legally ceased” to be a member
of the Union and that he was no longer eligible to hold any office in it was
that he had been dismissed from the employment of the Harare City Council, the
employer, (hereafter referred to as “Council”). The plaintiffs' argument
on that point was that membership of the Union was open to Council employees
only. It was common cause that following the judgment of an independent
arbitrator on 24 June 2012, the first defendant had been dismissed from Council's
employment for absenteeism with effect from 2010.
The defendants contested
the plaintiff's claims. Their defence was both on technical and substantive grounds.
The first technical ground was that the plaintiffs, being mere members of the
Union, had no locus standi to bring
the action. In addition, the defendants contended that the plaintiffs themselves
had been expelled from the membership of the Union. On this the defendants
relied on the first defendant's two letters to the plaintiffs, both dated 31
May 2011. He had signed them as “Executive Chairman”.
The second technical
ground relied upon by the defendants was that the plaintiffs had not exhausted
their domestic remedies and that this court had no jurisdiction to entertain
their case in such circumstances. The full argument on this was that the
election of members of Excom and their removal from office was something
governed by the constitution. Among other things, the defendants argued, the
plaintiffs could themselves have motivated the calling and holding of the
elective general meetings and moved motions to remove from office those members
of Excom whose terms of office would have expired. Having failed or neglected
to do so, the plaintiffs were non-suited before this court.
With regards to the
expiry of Excom's term of office, the declaration of vacancies, and the
directive to hold elections within forty five days, the defendants' substantive
defence on the merits was that there had been an elective general meeting in
2012. A new Excom had been incepted. The first defendant had been elected Executive
Chairman. Therefore, the remedies sought by the plaintiffs in that regard had
fallen away.
With regards the order
that the first defendant had “legally
ceased” to be a member of the Union and was no longer eligible to hold any
office in it by reason of his dismissal from employment, the defendants'
substantive defence on the merits was three-pronged. Firstly, they contended
that the first defendant was appealing against that dismissal. It seems that
the first defendant had appealed to the Labour Court against the arbitrator's
decision. But the Labour Court had dismissed that appeal. He had then filed an
application for leave to appeal to the Supreme Court. At the time of the
hearing before me that application was still pending. The first defendant's
argument though was that an appeal to the Supreme Court against a decision of
the Labour Court automatically suspends that decision. As such, the Labour
Court's upholding of the arbitrator's decision ordering his dismissal from
employment stood suspended. Therefore, he could continue in office with the
Union.
Secondly, the defendants
contended that a new constitution of the Union had been registered in December
2013. It had amended the old constitution in several ways. On membership, the
new constitution had opened up membership, not only to all employees, as
before, but also to “…any other person….” who wished to
abide by the requirements of the constitution. The material portion of the new
clause on that point read as follows:
“5. MEMBERSHIP
AND THE ROLE OF MEMBERS
a)
Membership
of the Union shall be open to all employees from grade 5 to grade 16 in Harare Municipal
Undertaking who wish to abide by the requirements of this Constitution and
conditions of membership other than Executive employees and any other person
who wishes to abide by the requirements of this constitution other than
executive employees who should be prepared to abide by this constitution and
the rules and conditions of membership.
b)
For
the avoidance of doubt, membership of the Union being a fundamental
constitutional right to freedom of association, no employer or his/her agent
shall interfere or question any individual's membership of the Union. The
determination of membership shall be at the absolute and sole prerogative of
the Union through its Executive Committee in terms of the HMWU Constitution.”
Thirdly, the defendants
argued that in terms of the new constitution, the position of chairman of Excom
had been turned into an executive, full-time and salaried one. The incumbent
would be in charge of the day-to-day management of the Union. It was argued
that it did not require that the incumbent be a member of the Union.
The plaintiffs denied
that they had been expelled from the Union. They dismissed the first
defendant's letters aforesaid. They said they had not been called to any
hearing to answer any charges.
The plaintiffs argued
that the new constitution was not relevant to their case. The purported
election of the first defendant as executive chairman was a nullity. Among
other things, it had been done before the new constitution had become
operational. The new constitution did not operate retrospectively.
Regarding the first
defendant's alleged appeal to the Supreme Court and the argument that the
Labour Court's decision had automatically been suspended, the plaintiffs
challenged the defendants to produce the evidence of such an appeal. They
contended that an application for leave to appeal was not an appeal. Therefore,
there had been no suspension of the Labour Court's decision by the mere
application for leave.
Regarding the new
constitution allegedly opening up membership of the Union, not only to all
employees of Council, but also to “… any other person…” who wished to
abide by its requirements, the plaintiffs argued that this had to be read in
context. The Union was a trade union to advance the interests of Council
employees. Trade unions were governed by the Labour Act, [Cap 28:01]. Only employees in a particular undertaking could form,
register and become members of a trade union, not “…any other person…”
Regarding the position of
the executive chairman being a full-time and salaried office that did not
require the incumbent to be a member of the Union first, let alone to be an
employee of Council, the plaintiffs dismissed the defendants' contention as one
that would lead to untold absurdities. Trade unions cannot be run by persons
that are neither members nor employees of the undertaking to which the
employees and the employers belong.
In a nutshell, that was
the case before me. The action had been referred to court as a special case in
terms of Order 29 of the rules of this court. The issues, as agreed upon at the
pre-trial conference, had been condensed to three, namely:
§ whether
the High Court had jurisdiction to entertain the plaintiffs' action;
§ whether
the plaintiffs had the locus standi
to institute the proceedings; and
§ whether
the first defendant was still eligible to be a member of the Union after his
dismissal from employment.
I propose to deal with
the question of plaintiffs' locus standi
first. If they did not have the requisite locus
standi in judicio to bring these proceedings, then that will be the end of
their case.
(i)
Plaintiffs'
locus standi
Locus
standi in judicio refers to one's right, ability or capacity
to bring legal proceedings in a court of law. One must justify such right by
showing that one has a direct and
substantial interest in the subject-matter and outcome of the
litigation: see Zimbabwe Teachers
Association & Ors v Minister of Education and Culture. In that case EBRAHIM J,
as he then was, stated:
“It is well
settled that, in order to justify its participation in a suit such as the
present, a party … has to show that it has a
direct and substantial interest in the subject-matter and outcome of
the application.”
The direct and substantial interest test has been followed in a
plethora of cases such as those listed in footnote one above. In Henri Viljoen (Pty) Ltd v Awerbuch Brothers it was held to connote:
“… an interest in
the right which is the subject-matter of the litigation and … not thereby a
financial interest which is only an indirect interest in such litigation.”
CORBETT J, in United Watch & Diamond Co (Pty) Ltd
& Ors v Disa Hotels Ltd &
Anor, elucidated it as follows:
“This view of what
constitutes a direct and substantial
interest has been referred to and adopted in a number of subsequent
decisions, including two in this Division … and it is generally accepted that
what is required is a legal interest in the subject-matter of the action which
could be prejudicially affected by the judgment of the Court ( See Henri Viljoen's case supra at 167)”.
Recently, in Sovereign Empowerment Centre-Tutorial Trust v Old Mutual Investment Group Property
Investment Zimbabwe (Pvt) Ltd & Anor and three other cases that
were consolidated and heard together, MANGOTA J considered the dictionary
meanings of locus standi. At p 10 of
the cyclostyled judgment the learned judge said:
“I must confess
that the legal practitioner's argument left me wondering as to what exactly he
meant to convey. Because of the confused state in which his argument on the
matter was couched, I took the trouble to read around the Latin phrase locus standi in an effort to appreciate
what he was driving home to.
Wikipedia, the free encyclopaedia refers to the
phrase locus standi to mean:
'… the right to
bring an action, to be heard in court or to address the court on a matter
before it … locus standi is the
ability of a party to demonstrate to the court sufficient connection to, or
harm from, the law or action”.
Free Dictionary.com states that:
'… Locus
standi is the right of a party to appear and be heard before a court…”
Wisegeek.com discusses the
phrase and stresses that:
'… locus standi refers to the fact of
whether or not someone has the right to be heard in court… As a general rule, a
person has locus standi in a given
situation if it is possible to demonstrate that the issue at hand is causing
harm and that an action taken by the court could redress that harm…'”
The debate on locus standi in most cases cropped up in situations where
proceedings had been brought by someone in a representative capacity, such as a
trade union, or some such organisation representing some common interest of its
members. In the present case the plaintiffs did not bring the action in a
representative capacity. They stated that they were full time members of the
Union. They said, as members, they had been aggrieved by the manner in which
Excom, which the first defendant chaired and controlled, had continuously flouted
the constitution. In their original claim, apart from the complaint about the first
defendant's failure or refusal to convene any of the constitutional meetings,
the plaintiffs complained further that no books of accounts had been produced
since 2007 and that Excom had failed or neglected to amend the constitution which
had become out-dated.
In my view, and in the
words of BECK J in Deary NO v Acting President & Ors, the court will be slow to
deny locus standi to a litigant who
seriously alleges that a state of affairs exists, within the court's area of
jurisdiction, where someone in position of authority, power or influence,
abuses that position to the detriment of members or followers.
If the plaintiffs
seriously felt that the first defendant had become ineligible to hold any
office within the Union, let alone to continue clinging onto to the position of
chairman, such a state of affairs would be so intolerable that the court would
not fetter itself by pedantically circumscribing the class of persons who might
approach it for relief. There could be no better demonstration of, or
justification for, locus standi in
judicio than the plaintiffs' position in this matter. Undoubtedly, they had
a direct and substantial interest
in the management of the affairs of the Union. They have demonstrated a sufficient connection to the
subject-matter of their complaint. If an alien, in the sense of someone having
lost the capacity to remain a member of the Union, let alone of Excom, continued
to cling onto that position, then a member or members of the Union,
individually or collectively, would certainly have the right, power and
authority to approach the courts for relief.
The defendants contended
that the plaintiffs had been expelled from the Union. They relied on the first
defendant's two letters aforesaid. The one addressed to the first plaintiff
read as follows:
“RE: EXPULSION FROM THE HMWU MEMBERSHIP MR J
MAKARUDZE HM NO. 405043
…………………………………………………………………………….
This
is to advise that the HMWU resolved to expel you from HMWU structures and
membership with effect from 23rd May 2011 due to the fact that you
took the Union to the Court over an internal matter without following the normal
procedure due to your enjoinment with M Munondo of Public Safety Dept.
You
are and were aware that the issue of the Executive Chairman was a result of the
resolution of the HMWU National Council which is Congress in between Congress
of which you were party. You were and are also aware that the same meeting
resolved that the Elections would be held pending Conclusion of the Executive
Chairman's case vs City of Harare. You were also aware that the City of Harare,
following the Labour Court Case involving 75 HMWU representatives of the
National Council of which the Employer intended to dismiss them on the ground
that they had participated in a job action allegedly against partly the
dismissal of the HMWU Executive Chairman.
You
are also aware that your name and that of Munondo did not appear on the list of
HMWU Workers leaders, the employer intended to dismiss although you were
present at Town House and the employer did not include your 2 names due to your
relationship with the same which is against the HMWU and its member. You are
also aware of the striking similarities between your present High Court Case
No. 4406/11 and the employer's Supreme Court Appeal in Case No. LC/ORD/H/29/10
wherein the employer is opposing the Labour Court Judgement hence this confirms
your close relationship contrary to the HMWU ethics and that you are raising
similar allegations against the HMWU as those of the employer.
You
are also aware that a meeting was held at the Union Office wherein the issue of
elections was raised by your colleagues and you also advised that since we have
a pending case with the City of Harare it was only logical that we defer the
HMWU Supreme Union Committee elections and request our lawyers to advise us on
the issues jointly., i.e., election for HMWU Supreme Union Committee and
Congress.
The
union also learnt that you are party of the people against the HMWU yet you are
aware that as a democratic organization we have internal structure which deal
with members concerns.
………………………………………………………………………………..”
The other letter
addressed to the second plaintiff read:
“RE: EXPULSION FROM THE HMWU MEMBERSHIP MR M
MUNONDO HM NO. 607851
…………………………………………………………………………….
The
HMWU hereby advises you that it resolved to expel you from the Union membership
with effect from 23rd May 2011.
This
is due to the fact that without the locus standi you have deliberately defied
the Union by initially requesting for the HMWU validation from the employer for
the purpose of creating a parallel structure to the HMWU being HM 2. Secondly
you took the HMWU to court over an internal matter which ought to have been
addressed internally since you are aware of the procedures thereof.
You are also aware of the Labour Court Case as
regards the intended dismissal of 75 workers leaders of which the Union won the
case at the Labour Court LC/ORD/H/29/10 and the employer subsequently appealed
and strange enough your name did not appear on the list because of your close
relationship with the employer and the similarities between your High Court Case
No. 4406/11 and the employer's Supreme Court appeal are not a coincidence.
……………………………………………………………………….”
The first defendant's
letters were patently a dog's breakfast. Demonstrably, they were self-serving. The
first defendant was being vindictive against the plaintiffs for having sued
him. By whose authority had the plaintiffs' been expelled? In terms of what
procedure? The plaintiffs maintained that no hearings had ever been held to try
them. The defendants had no answer to this. In any event, in May 2011 there was
no office within the Union known as “Executive Chairman”. That position was
created by the new constitution that was registered only in December 2013.
Furthermore, even if I were to recognise the alleged election of the new Excom
in 2012, which the plaintiff maintained they did not, the question of the first
defendant's eligibility to come back into office in any capacity, let alone as
chairman of Excom, very much hung in the balance by reason of his dismissal
from employment with Council. Finally, the plaintiffs' summons pre-dated the
purported expulsions anyway.
In the premises I find
that the plaintiffs had the requisite locus
standi in judicio to bring these proceedings.
Having disposed of the
question of locus standi in favour of
the plaintiffs, logically the next aspect to consider is that of the
jurisdiction of this court to determine the case.
(b) Jurisdiction
of this court
During argument, in
response to a query by myself, Mr Mambara,
for the defendants, conceded that it was not a question of this court lacking jurisdiction
to determine the dispute between the parties, but rather the fact that the
plaintiffs had allegedly not exhausted their domestic remedies when they had “rushed” to this court. As mentioned earlier,
the argument by the defendants was that the constitution provided ways and
means of terminating someone's office. It was argued that the plaintiff had not
followed those channels.
The general view is that
it is discouraged for a litigant to rush to this court before he or she has exhausted
such domestic procedures or remedies as may be available to his or her
situation in any given case. He or she is expected to obtain relief through the
available domestic channels unless there are good reasons for not doing so: see
Nokuthula Moyo v Norman Gwindingwi NO & Anor.
However, it is also the
general view that the domestic remedies must be able to provide effective
redress to the complaint. Furthermore, the alleged unlawfulness complained of
must not be such as would have undermined the domestic remedies themselves: see
Tutani v Minister of Labour & Ors; Moyo v Forestry Commission and Musandu v Chairperson of
Cresta Lodge Disciplinary and Grievance Committee. The court will not
insist on an applicant first exhausting domestic remedies where they do not
confer better and cheaper benefits: Moyo's
case, supra, at p 192.
In
casu,
it was rather a long shot for the defendants to pitch an argument on the
so-called domestic remedies. There was no such thing. The constitution of the
Union had no provision dealing directly or indirectly with the plaintiffs'
grievances. Evidently, the defendants had to stitch together some disparate provisions
of the constitution in order to craft the “domestic
remedies” argument. They relied on the following clauses:
·
clause 10(1)(b), which provided for the
composition of Excom and the one year tenure of office;
·
clause 10(2), which said a member whose
subscriptions were in arrears was ineligible for a position in Excom;
·
the same clause 10(2) which said a member
on suspension was not eligible for election into Excom;
·
clause 10(4), which said a member of Excom
could vacate office if he resigned, or was suspended or expelled, or if he
missed three consecutive sittings.
The defendants' argument
was that there was nothing stopping the plaintiffs from requisitioning annual
general meetings or triennial general meetings and sponsoring motions to vote
out stale office bearers.
The plaintiffs' grievance
was that as chairman, the first defendant wielded enormous influence and
control of the Union. As part of their proof for that proposition, they pointed
to the amended constitution. They said it was contrived to deal with such of
the complaints against the first defendant as they had brought to court. That
sounded plausible enough to me. Clause 5 (b) of the new constitution,
highlighted above, is certainly a curious provision. It is demonstrably an
emotional outburst against the employer or his agent questioning any
individual's right to membership of the Union. The same emotions are exuded in
the first defendant's so-called letters of expulsion to the plaintiffs.
Undoubtedly, in this action the first defendant regarded the plaintiffs as
nothing more than mere surrogates for Council. According to him their court
case, this case, was nothing but a hatchet job to get rid of him.
The plaintiffs complained
that using his vantage position as chairman, the first defendant had avoided or
prevented the holding of any of the constitutional meetings of the Union. The
defendants did not deny that since 2007 no meeting of any sort had been held.
The one finally held in 2012 was undoubtedly a response to the plaintiffs'
court case. Plaintiffs' action had been instituted in May 2011. Therefore, even
if I had been persuaded that there had been adequate or effective domestic
remedies to deal with the plaintiffs' grievances, which I was not, still the first
defendant had undermined the plaintiffs' rights thereto.
Having disposed of their
two technical objections in favour of the plaintiffs, I now deal with the
defendants' substantive defence on the merits; namely that the first defendant had
not “legally ceased” to be a member
of the Union, in that firstly, the new constitution had opened up membership of
the Union, not only to employees of Council, but also to “… any other person…” who wished to abide
by it; and secondly that, at any rate, the first defendant had appealed to the
Supreme Court against his dismissal from employment and that such dismissal
stood suspended.
(c) That first defendant had “legally ceased” to be a member of the
Union by reason of his dismissal from employment
(i) That membership of the Union was
open to “…any other person…”
Just like employment
codes of conduct, governing statutes of private bodies such as the constitution
of the Union in casu have to be
interpreted sensibly. Furthermore, regard must be had to the provisions of the
governing statute, in this case, the Labour Act (hereafter referred to as “the
Act”).
In terms of the Act, it
is a fundamental right of an employee
to be a member or an officer of a trade union. Specifically, s 4(1) reads:
“4 Employees'
entitlement to membership of trade unions and workers' committees
(1)
Notwithstanding
anything contained in any other enactment, every employee shall, as
between himself and his employer, have the following rights-
(a)
the
right… to be a member or an officer of a
trade union;
(b)
…………………………………………………………..
(c)
…………………………………………………………..
(d)
…………………………………………………………..
(2)
Every
employee shall have the right
to be a member of a trade union which is registered for the undertaking or
industry in which he is employed
if he complies with the conditions of membership.”
(emphasis added)
Sections 27 and 50 of the
Act provide for the rights of employees to form trade unions. Section 54
empowers a trade union to receive an employee's trade union dues directly from
the employer. Thus, the scheme of the Act is such that a trade union is an organisation
for employees, not for just “… any other person”.
The Union was a trade union. Therefore, that “… any other person …” who is not an employee can become a member of a
trade union in a particular undertaking is a concept alien to trade unionism. It
was also the same concept in both the old and the new constitution of the Union.
Membership was open to all employees in those grades as specified.
It is noted that in terms
of s 28 of the Act, every trade union is required to adopt a written
constitution and that such constitution must provide for, among other things,
the right of “… any person …” to membership
if he is prepared to abide by the rules and conditions of membership.
Presumably, it is such wording as was adopted in the new constitution of the
Union. However, the reference to “… any
person …” in s 28(1)(b)(ii) of the Act is, in my view, a reference to any person
as employed in that undertaking or industry. To open up membership of a trade
union in a particular undertaking to “… any
other person…” who may not be employed by some employer in that undertaking
or industry, as the defendants contended, would lead to monstrous absurdities.
For example, what would stop an air hostess employed by some airline anywhere
in the world, or even some vagabond somewhere, coming forward to become a
member of the Union, and even taking up positions in Excom, for as long as they
wished to abide by the conditions of the constitution? Mr Mambara said Excom vets any prospective member and screens
unqualified aspirants. But using what qualifying criterion other than the fact
of employment by Council?
It could not have been
the intention of the Legislature in s 28 of the Act, or the drafters of the
constitution of the Union, to open up membership of a trade union to all manner
of people who may not be employed in the particular undertaking to which the
trade union was formed.
The first defendant
argued that the position of executive chairman to which he was appointed was a
salaried one that did not require him to be a member of the Union. However,
that argument was fallacious. The position of executive chairman was created by
the new constitution. That constitution was only registered in December 2013.
Yet the first defendant's purported appointment had been in 2012. It was a
nullity.
At any rate,
holistically, the scheme of both the Act and the old constitution of the Union
in general, but clause 10 in particular, was such that members of Excom were
elected, not appointed, from the generality of the membership of the Union at
an elective general meeting. Excom consisted of the chairman, his or her vice,
and six members. Among other things, and as I highlighted at the beginning, a
member whose subscriptions were three months in arrears, or was on suspension,
would be ineligible to be elected a member of Excom. It would be such an anomaly
that an important, influential and central position, such as that of chairman,
could be occupied by an alien, who, among other things, would be naturally
immune to all the disabilities that members might suffer from, such as, for
example, ineligibility due to a failure or inability to pay subscriptions, or ineligibility
due to suspension.
In the circumstances, I find that despite the seemingly
open endedness of the constitution of the Union, membership was restricted to
employees of Council. It follows that if the first defendant had been dismissed
from Council employment he lost the right to keep his membership, let alone to
become an office bearer in Excom, unless he had been conferred with honorary
membership in terms of clause 5(k) of the new constitution, in which event he
would have no right to hold office or to vote.
(ii)
That first defendant had appealed to
the Supreme Court
At the close of argument,
and seeing that the parties had paid scanty regard to the question of the
effect of the first defendant's alleged appeal to the Supreme Court against the
decision of the Labour Court, I directed the filing of supplementary
submissions to deal solely and squarely with the point. Interestingly, in their
supplementary heads of arguments, Counsel have adopted diametrically opposed views.
But most ironically, each one's conclusion is the complete opposite of their
own cases, and the direct support of the other's!
Mr Debwe, for the plaintiffs, gave the matter the most cursory
treatment in his brief supplementary heads. In this regard I would like to associate
myself with the complaint by GILLESPIE J in Vengesai
and Others v Zimbabwe Glass Industries Ltd on the conduct of some
legal practitioners who do not carry out proper research. He said:
“I have to say
that argument on the law, with appropriate citation of all relevant cases,
including adverse decisions, is as rare amongst legal practitioners as are
hens' teeth. Yet it is to counsel that a judge must look for appropriate
research and argument if he is to be able to give judgments efficiently and correctly.
It is that duty of him, who would undertake the responsibility of an advocate,
a duty owed both to the client and the court, to do all relevant research and
to present that research to the court. A judge cannot be expected to undertake
himself all the original research in every case.”
From his research, Mr Debwe concluded that an appeal to the Supreme
Court automatically suspends the judgment of the Labour Court appealed against,
in line with the common law rule of practice. Nonetheless, he persisted with
his clients' case on the basis that there was no appeal pending by the first
defendant, but merely an application for leave to appeal.
On the other hand, Mr Mambara, in his more elaborate and well
researched heads, concluded that an appeal to the Supreme Court does not automatically
suspend the Labour Court's judgment because the common law rule of practice that
has that effect only applies to superior courts of inherent jurisdiction. He
pointed out that in this jurisdiction there have been divergent and conflicting
views on this point.
The common law rule of
practice in the superior courts is that execution of a judgment appealed
against is automatically suspended unless leave to execute is granted: see Wood NO v Edwards & Anor; Oliphant's Tin 'B' Syndicate v
de Jager; Verkouteren v Savage; Malan v Tollekin; Reid v Godart; Levin v Felt and Tweeds
Limited;
Geffen v Strand Motors (Private) Limited; South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd; Econet (Pvt) Ltd v Telecel
Zimbabwe (Pvt) Ltd Vengesai and Others, supra, and
Chematron Products (Pvt) Ltd v Tenda
Transport (Pvt) Ltd & Registrar of Deeds.
In terms of that common law rule, the
party that succeeds in the court of first instance has to seek the leave of the
court to execute the judgment whilst the appeal is pending. In Levin's case above VAN WINSEN AJ explained
the rule as follows:
“The common law is
clear that a notice of appeal, save in certain exceptional cases, automatically
suspends the execution of the judgment appealed against. No application is
necessary to ensure this result. If the party who succeeds in the judgment
against which the notice of appeal has been lodged wishes to execute upon the
judgment, then it is he who is required to make an application to do so.”
In South Cape Corporation, supra, CORBETT JA put it as
follows:
“Whatever the true
position may have been in the Dutch courts, and more particularly the Court of
Holland … it is today the accepted common law rule of practice in our court
that generally the execution of a judgment is automatically suspended upon the
noting of an appeal… The purpose of the rule is to prevent irreparable damage
from being done to the intended appellant.”
However, as Mr Mambara noted, on this point the
structure and wording of the Act is a cause of some confusion. Section 92E is
headed “Appeals to the Labour Court
generally”. Subsection (1) then provides that an appeal “… in
terms of this Act …” may address the merits of the determination
or decision appealed against. It does not say an appeal “… in terms of this section
…” It does not refer to other provisions dealing with appeals to the Labour
Court, for example, s 92D and s 98(10).
With regards to appeals
to the Supreme Court, s 92F of the Act is headed “Appeals against decisions of Labour Court”. Subsection (1) expressly
provides for appeals from the Labour Court to the Supreme Court, but only on
questions of law. The confusion may arise in that whilst it seems settled that
an appeal from the decision of an arbitrator to the Labour Court in terms of s
98(10) of the Act is not suspended automatically because of the provisions of s
92E, there is nothing expressly stated in respect of the effect of noting an
appeal from the Labour Court to the Supreme Court. Yet subsection (1) of s 92E
refers to appeals “… in terms of this Act.” This seems
to suggest that any appeal whatsoever, to and from wherever, does not
automatically suspend the decision appealed against, for as long as that appeal
is one “… in terms of this Act”. An appeal from the decision of an
arbitrator is one “… in terms of this Act…” But so is an
appeal from the Labour Court to the Supreme Court.
However, in my view, the
reference in s 92E to “[a]n appeal in terms of this Act …” does not include an appeal to the Supreme
Court. It is a reference to appeals to the Labour Court only. Section 92F deals
specifically and expressly with appeals from the Labour Court to the Supreme
Court. But it does not deal with the effect of such an appeal on the decision
appealed against as does s 92E.
Some decisions of this
court have held the view that subsection (2) of s 92E expressly reversed the
common law rule: see Gaylord Baudi v
Kenmark Builders (Private) Limited; DHL International Ltd v Madzikanda; Samudzimu v Dairibord Holdings Ltd; and Senele Dhlomo-Bhala v Lowveld Rhino Trust. In Dhlodhlo v Deputy Sheriff of Marondera and Mvududu v Agricultural and Rural Development Authority it was accepted or
assumed that in the absence of a legislative provision to the contrary the
common law rule applied in respect of appeals to the Labour Court.
Be that as it may,
whatever confusion may arise on the interpretation of s 92E and s 92F of the
Act, it seems settled that the common law rule of practice only applies to the
superior courts of inherent jurisdiction. Contrary to the views in the earlier
cases, it seems that in s 92E(2) of the Act, Parliament re-stated, rather than reversed,
the common law in regards to an inferior court such as the Labour Court. In Associated Newspapers of Zimbabwe v Minister
of State for Information and Publicity & Ors CHIDYAUSIKU CJ singled
out the High Court and the Supreme Court as the superior courts of inherent
jurisdiction in this country. He went on to say:
“Courts created by
statute do not have inherent jurisdiction and consequently do not have the
power to order execution of their judgment unless such jurisdiction is
conferred on them by statute.”
The Labour Court is not a court of inherent
jurisdiction. It is a creature of statute. As such, and in my view, the
aforesaid common law rule does not apply to it. In Vengesai, supra, GILLESPIE J stated:
“In my opinion,
the dictum of CORBETT JA, cited above
and approved in the various judgments referred to, does not, and was not intended, to apply to a judgment of any court,
tribunal or authority other than a superior court of inherent jurisdiction.”
(my emphasis)
In Longman Zimbabwe (Pvt) Ltd v Midzi & Ors GARWE JA quoted with
approval
the further remarks by GILLEPSIE J in Vengesai,
supra, as follows:
“In Vengesai & Ors v Zimbabwe Glass
Industries Ltd 1998 (2) ZLR 593 (H), GILLESPIE J, after considering a
number of earlier decisions on the matter, remarked at p 598E – F:
'In stating the
common law, CORBETT JA referred to the automatic stay of execution upon the
noting of (an) appeal, as a rule of practice. That is not a firm rule of law,
but a long established practice regarded as generally binding subject to the
court's discretion. The concept of a
rule of practice is peculiarly appropriate only to superior courts of inherent
jurisdiction. Any other court, tribunal or authority is a creature of statute
and bound by the four corners of its enabling legislation.'
“The learned judge continued at p 599A –
D:
'… the grant or
withholding of a stay of execution is, at common law, a matter of discretion
reserved to a court in which such a discretion is imposed. It follows that, in
the absence of any statute specifically conferring such a discretion on an
inferior tribunal or authority, or otherwise regulating the question of
enforcement of judgments pending an appeal from that authority, no such
discretion can exist. Such a court or authority can exercise only the powers
conferred by statute. It cannot order the suspension of its own judgment
pending an appeal. It has no discretion to enforce its own judgment,
notwithstanding an appeal. The only basis upon which its judgment or order can
be supposed to be stayed is where its enabling statute provides for the
situation.
… the grant,
whether automatic or not, of a stay of execution of a judgment pending appeal
is an inseparable part of an exercise of discretion by the court from which the
appeal lies, to order the enforcement of its judgment notwithstanding the
appeal or any temporary stay. It
follows that the question of enforcement pending appeal of judgments from an
inferior court or authority cannot possibly be regulated according to a rule of
practice, derived from the common law, and applicable in superior courts of
inherent jurisdiction.'” (my emphasis)
Thus, in Longman, the Supreme Court, on the basis
that the common law rule of practice applies to the superior courts of inherent
jurisdiction only, reversed the judgment of this court that had held that the
decision of the Rent Board, a quasi-judicial body established in terms of the
Housing and Building Act, Cap 22:07,
had automatically been suspended by an appeal against that decision to the
Administrative Court. At p 206A –B the Supreme Court said;
“The position may
now be accepted as settled in this jurisdiction that, unless empowered by law
to do so, an inferior court or tribunal or other authority has no power to
order the suspension of its own orders or judgments and, further, that the noting of an appeal against the judgment or
order of such a court, tribunal or other authority, in the absence of statutory
provision to that effect, does not have the effect of suspending the operation
of the judgment or order that is sought to be appealed against.” (emphasis
added)
It follows that whatever
may have been the intention of the Legislature in crafting sections 92E and 92F
of the Act, the common law rule of practice that has the effect of
automatically suspending the decision appealed against, does not apply in
respect of the Labour Court because it is not a superior court of inherent
jurisdiction. Although the remarks of the learned Chief Justice in Associated Newspapers of Zimbabwe were
made in relation to a matter that had been determined by the Administrative
Court, GARWE JA, in Longman, pointed
out that
they apply with equal force to judgments and orders made by all inferior courts
and tribunals.
In the Act, subsection 92E(3)
empowers the Labour Court to make interim determinations pending the
determination of an appeal that is pending before it. Mr Mambara submitted that in practice the provision has been employed
to regulate the execution of judgments of those bodies or authorities inferior
to it, such as arbitrators. That may be the position. But there is no
corresponding provision in s 92F. That seems to fortify the view that the
Labour Court has no power or discretion to order a stay or to authorise
execution of its decision where it has been appealed against, and that the
common law rule of practice does not apply to it. But, as GILLESPIE J noted in Vengesai, an aggrieved party who desires a stay of execution, or execution
pending appeal, is not without a remedy. He can approach this court for
appropriate interim relief, or, in my view, the Supreme Court where the appeal will
be pending.
Coming back to the first
defendant's situation with regards the status of his appeal to the Supreme Court,
it seems that all that was pending at the Labour Court was his application for
leave to appeal, not the actual appeal itself. I have gathered from the papers
in the court record that such leave was applied for on 22 January 2014. I heard
argument in this case on 23 October 2014. The parties filed their supplementary
heads of argument on 10 and 12 November 2014. There was no indication as to the
fate of the leave application. Despite that, Mr Mambara had originally argued that the leave application had the
same status as the actual appeal, namely that it had automatically suspended
the decision of the Labour Court, because it is a necessary step in the noting of
an appeal.
Given the conclusion that
I have arrived at above, namely that an appeal to the Supreme Court does not
automatically suspend the Labour Court's decision that has been appealed
against, and given Mr Mambara's
concession in his supplementary heads of argument, it follows that his earlier
argument that the leave to appeal was on the same footing as the substantive
appeal automatically falls away.
(c) Disposition
In the premises, judgment
is hereby entered in favour of the plaintiffs. Costs were sought against the
first and second defendants only. Therefore, it is ordered as follows:
1
This court had jurisdiction to determine
the plaintiffs' action;
2
The plaintiffs had locus standi to institute these proceedings;
3
The first defendant is not eligible to be a
substantive member of the Harare Municipal Workers' Union, let alone to be
elected or appointed to any position in it;
4
The costs of this action shall be borne by
the first and second defendants, jointly and severally.
7 January 2015
Debwe &
Partners,
plaintiffs' legal practitioners
J. Mambara & Partners, defendants' legal
practitioners
