Urgent
Chamber Application
MANGOTA
J:
The
applicant represents workers in the sugar industry. It allegedly
carries a membership
of 16,000 workers.
It is an affiliate of the Zimbabwe Federation of Trade Unions
(emphasis added).
The
National Executive Committee is the applicant's governing body. The
committee manages the affairs of the applicant. Its elected office
bearers comprise:
(a)
the President;
(b)
the Vice-President;
(c)
the Secretary-General; and
(d)
three other committee members.
In
or about 24 February 2014 the deponent to the applicant's
affidavit, one Simbarashe Nyemba, and members of his National
Executive Committee were removed from their positions and replaced by
the fourth respondent and his team of committee members.
Mr
Nyemba and members of his committee made an urgent chamber
application to the court. The application was filed under case number
HC1603/14. The court granted a provisional order to the applicant.
It, in effect, directed that paragraphs 3, 4, 5 and 6 of the letter
which the second respondent addressed to the seventh respondent on 24
February 2014 should not be executed until proceedings which
pertained to case number HC1603/14 had been completed.
The
court mentions in passing that the proceedings in question are still
pending determination.
The
present urgent chamber application was premised on the allegations
that, on 14 February 2015, the first and second respondents visited
Chiredzi in the company of persons who, it was claimed, were from the
office of the fifth respondent. The visitors, the applicant averred,
appointed the third and fourth respondents as members of the
applicant's Executive Committee. The fourth respondent, it said,
was appointed president of the applicant's governing body. It,
accordingly, made every effort to move the court to prohibit the
fourth respondent and the latter's committee members from
representing the applicant until case number HC1603/14 has been
conclusively dealt with.
The
applicant attached to its application Annexure D. The annexure is a
letter which the fifth respondent addressed to the applicant's
secretary-general. The letter is erroneously dated 16 January, 2014.
It should have read 16 January, 2015 which the applicant said was the
correct date.
In
the letter the fifth respondent prohibited the applicant from
deducting union dues from the seventh respondent.
The
fifth respondent stated that, from reports which had been submitted,
she had reasonable cause to believe that the funds of members of the
applicant were being abused and misappropriated. She said she would
appoint an investigator who would look into the affairs of the
applicant. She prohibited the applicant's national executive
committee from using the funds for any purpose other than what the
investigator or she herself would have directed. The fifth respondent
copied her letter to, among other authorities, the seventh
respondent.
The
applicant appealed to the Labour Court against the decision of the
fifth respondent. It did so on 22 January 2015 under case number
LC/MS/03/15.
The
appeal is pending before the Labour Court.
The
first, second, third and fourth respondents opposed the application
and so did the seventh respondent. The fifth and sixth respondents
did nothing about the application. They remained uncommitted to the
matter notwithstanding the fact that they were served with the
application.
The
Sheriff's returns of service showed that both respondents were
served on 19 February 2015. Their attitude to the application,
therefore, remained unknown. It was, in the premise, assumed that
they would abide by the decision of the court as they did not appear
in person or through legal representation.
The
first four respondents raised some preliminary issues after which
they proceeded to deal with the substance of the application.
The
seventh respondent adopted a pattern which, to all intents and
purposes, was similar to that of the first, second, third and fourth
respondents.
The
first four respondents' in
limine matters
were that:
(a)
the application was not compliant with the rules;
(b)
the certificate of urgency was defective;
(c)
the application was not urgent; and
(d)
Simbarashe Nyemba did not have the authority to represent the
applicant.
The
seventh respondent's preliminary matters were that:
(i)
the citation of the seventh respondent by the applicant was
defective; and
(ii)
the application was not urgent.
In
so far as the urgency or otherwise of the application was concerned,
the court noted that the conduct which the applicant complained of
occurred on 14 February 2015 and the applicant filed the present
application on 17 February 2015. There was, therefore, no doubt that
the applicant treated its application as urgently as it reasonably
could.
The
seventh respondent's submissions which were to the effect that “the
facts giving rise to the application at hand must have arisen on or
about the 16th
of January 2015” was, therefore, misplaced.
Equally,
the first four respondents' assertion which was to the effect that
the cause of action arose on 4 February 2015, was not a true
reflection of the correct position of the matter.
The
respondents laid a lot of emphasis on an obvious typographical error
and sought to advance an argument around it. The argument could not,
for the stated reasons, hold. That was so because the action
complained of, it was agreed, occurred not on 16 January 2015, or on
4 February, 2015 but on 14 February, 2015.
The
seventh respondent stated, as one of its preliminary matters, that:
“3.
The citation of the seventh respondent by applicant is defective as
there exist at law no such entity as Tongaat
Hullet Zimbabwe.
The companies who could only have been cited by the applicant in this
matter are Hippo Valley Estates Limited and Triangle (Private)
Limited. This can be seen on p 1 of the applicant's constitution,
being Annexure A herein. To lump
up the two together is
legally impossible as the former is a listed entity on the Zimbabwe
Stock Exchange whilst the latter is a private limited company. To
that extent the applicant's case if any against the seventh
respondent is therefore fatally defective in that regard.”
(emphasis added).
The
court took judicial notice of the fact that the seventh respondent
was cited as such in case number HC1603/14.
The
court was not privy to the arguments', if any, which were advanced
towards the citation of the seventh respondent in the mentioned case.
Whatever those arguments were, if such were ever raised, the court
noted that the seventh respondent was cited in that case as such as
it was cited in
casu
and it would, therefore, be treated as such in the present
application. That would be so the argument of the seventh respondent
on that matter notwithstanding.
The
application appeared to have been hurriedly prepared and filed with
the court. The haste with which it was prepared caused the applicant
to overlook a peremptory provision of the rules of this court.
The
first four respondents submitted, correctly so, that the application
was not filed in Form No. 29B.
A
mere examination of the application showed that it was totally
non-compliant with Rule 241 which provides that applications of the
present nature must be in Form No.29B.
The
court would have been prepared to invoke Rule 4C of its rules and
condone the applicant's non-compliance with Rule 241 if it was
satisfied that the application had some measure of merit. It would
have done so in the interests of attaining real and substantial
justice as between the parties. However, for reasons which will
appear in the following part of this judgment, the court remained
convinced that the respondents' preliminary matter on this point
holds.
The
deponent to the applicant's affidavit stated that he was the
applicant's President and as such he
had the mandate and capacity to represent the applicant in these
proceedings.
He attached to the application Annexure A. The annexure is the
applicant's Constitution. (emphasis added)
The
court went through the contents of the annexure. It saw nothing which
showed that Mr Nyemba, as President, did have the mandate and/or
capacity to represent the applicant in the application. Section 12:0
of the annexure makes reference to Powers and Duties of the National
Executive Committee. It reads, in part, as follows:
“The
duties of the Office Bearers shall be as follows:
(a)
President
The
president shall preside at all meetings of which he is present,
enforce observance of the Constitution of the Union, sign minutes of
meetings after approval by the National Executive Committee, sign all
cheques on the banking account of the Union and perform such other
duties as by usage and custom pertain to the office. He shall not
have deliberate vote but shall in the event of equality have a
casting vote.”
The
first four respondents submitted, correctly so, that Mr Nyemba did
not have the authority to institute the application on behalf of the
applicant. They stated, and the court accepted, that no resolution
was tendered to show that the deponent to the affidavit of the
applicant was clothed with the authority to institute the proceedings
on behalf of the applicant.
The
duties of the president were stated in clear and categorical terms.
Those duties, it was observed, did not confer any authority on the
president to act for, and on behalf of, the applicant in any lawsuit
or in criminal proceedings. His duties are confined to his or her
work inside and not outside the applicant.
If
Mr Nyemba did have the authority of the applicant to represent the
latter in this or any other matter as he would have the court
believe, members of his committee would have conferred him with the
requisite authority to so act. They would, as did the first four
respondents, have made a resolution to that effect.
Mr
Nyemba did not offer any reason as to the fact of why his committee
members, if they existed, did not make the resolution allowing him to
represent the applicant in this case. There was no application which
was before the court under the observed set of circumstances.
The
law says he who avers must prove.
The
applicant stated that its membership has a total number of sixteen
thousand (16,000) workers. It produced no register of its membership
to substantiate its claims in the mentioned regard. The court was
left in the dark on that matter, so to speak.
Production
of the register of its members would have been the earliest of
matters for the applicant to have done. That was so as it was one of
the functions of the applicant's Secretary General to keep a
register for the members of applicant. As is stated in section
13(b)(iv) of the applicant's Constitution, the Secretary-General
records:
(i)
the member's name;
(ii)
the member's number; and
(iii)
the member's address, occupation, employer's name and date of
joining the applicant.
The
applicant did not give any reason as to why the register of its
membership was not produced.
The
first four respondents, on the other hand, remained of the view that
the applicant's membership was between eleven and twelve thousand
workers. They attached to their opposing papers Annexure D which they
said was a register of workers who attended the special general
meeting where a vote of no confidence was passed against the National
Executive Committee in which Mrs Nyamba, who until 14 February 2015,
was President of the applicant, was together with members of his
committee removed from office and replaced by an interim committee
headed by the fourth respondent and his team of office bearers.
Because
the applicant's membership was not established, the court could not
accept the applicant's claims which were to the effect that it
commanded a total membership of sixteen thousand (16,000) workers.
The first four respondents' assertions on the matter were that the
applicant's membership was between eleven and twelve thousand
workers in
toto.
The
court, therefore, remained in the dark as regards the correct
position of this aspect of the case.
There
was no doubt that the parties' positions on the issue of numbers
which the applicant enjoyed as its total membership placed the
application into a material dispute of fact which the court could not
resolve on the papers which the parties placed before it. That
dispute was compounded by the fact that the workers membership to the
applicant was, in terms of its constitution, not compulsory but
voluntary. Section 6 of the applicant's Constitution was relevant
in this regard. It, in part, read:
“6.0.
MEMBERSHIP
Membership
of the union shall be open to non-managerial employees in the sugar
milling company. Application
for membership shall
be made
on the official form which
shall be lodged with
the secretary and be accompanied in each case by the appropriate
membership
fees
as prescribed in section 7 of this constitution. Application for
membership shall
be considered
by the Executive Committee within one week of receipt.” (emphasis
added)
It
was evident, from the foregoing, that the workers' membership into
the applicant is not automatic. It was also not compulsory. A worker
who was or is in the Sugar Milling Company acquired membership of the
applicant through a process of filing an application with the
secretary together with a membership fee with the end result that the
applicant's office bearers would consider to accept or reject the
application.
The
fact that a rival union which operates under the name Sugar
Production And Milling Industry Workers Union of Zimbabwe was
registered on 8 December 2014 did not make matters any better for the
applicant's claims. That new union, it was obvious, draws its
membership from the same pool of workers from which the applicant
drew or draws. Its existence had and still has the effect of
depleting the applicant's claimed membership.
Such
matters as were stated in the foregoing paragraphs placed the court
into a very invidious position. It had no means of ascertaining the
fact of who between the applicant and the third and fourth
respondents enjoyed a total majority of the Applicant's membership.
The court had, on the one hand, Mr Nyemba's unsubstantiated claims
and the first four respondents' averments, on the other.
The
applicant did not state in a clear and concise manner what harm it
would suffer if its application was not granted.
The
fifth respondent prohibited it from collecting union dues from the
seventh respondent. She also prohibited it from using those dues
without her authorization or that of the investigator whom she would
appoint to look into the affairs of the applicant. She copied her
letter which related to the issue in point to the seventh respondent
for the latter's information as well as attention. That situation
would remain obtaining until the Labour Court determines the appeal
which the applicant mounted against the fifth respondent's
decision.
The
applicant was, therefore, being economic with the truth when it
stated that if its application was not granted chaos would result.
The court saw no chaos which would ensue as the fifth respondent's
letter allowed the situation to remain under control.
The
applicant stated that the fourth respondent and his team of office
bearers were appointed and not elected.
The
fourth respondent stated to the contrary. He stated that his office
bearers and him were elected into the applicant's national
executive committee on 14 February 2015. He attached to his opposing
papers Annexure B. The annexure was a copy of the minutes of the
meeting to which members of the applicant were invited to, among
other matters, pass a no-confidence vote on Mr Nyemba and members of
his National Executive Committee and replace them with the fourth
respondent and his team of office bearers. He also attached to his
papers annexure D which was a register of the workers who attended
the meeting of 14 February 2015.
The
meeting which ushered into office the fourth respondent's national
executive committee was convened in terms of section 9.2 of the
applicant's Constitution. The section reads, in part, as follows:
“A
Special Annual General Meeting may
be called
whenever desired by
a member of the Executive Committees………
The
business of the special meeting shall be confined to the matter that
necessitated its calling” [emphasis added]
It
was in the spirit of the section that the third respondent who was a
member of the outgoing committee called the meeting of 14 February
2015. The attendees of the meeting were registered in the attendance
register, Annexure D.
The
applicant did not make any reference to the annexure let alone
challenge its contents.
The
court, therefore, accepted that persons who were mentioned in the
annexure attended the meeting, passed a no-confidence vote on Mr
Nyemba and his team and replaced the latter with the fourth
respondent and his office bearers.
The
deponent to the applicant's affidavit raised a complaint as regards
the manner in which the meeting of 14 February 2015 was convened.
He
stated that the fifth and sixth respondent did not advise his team of
office bearers and him of the calling of the meeting. He said his
members and him had a constitutional right to be heard at the
meeting.
It
is accepted that Mr Nyemba and his team were, for some time, office
bearers of the applicant. They were, therefore, aware of the
existence of section 9.8 of the applicant's constitution. The
section reads:
“The
proceedings of any meeting shall not be invalidated by reason of the
non-receipt by any member of the notice of that meeting.”
The
above stated provision of the applicant's Constitution was, and is,
in direct conflict with what Mr Nyemba stated. It was at best
undemocratic and at the worst very oppressive.
Mr
Nyemba and his team did nothing to make it more user friendly than it
currently is couched. They allowed it to remain as it is. They
cannot, therefore, be heard to be crying foul if they were not
invited to the special general meeting.
The
conveners of the meeting of 14 February 2015 must have been aware of
the provision's existence in the constitution. They, not
unnaturally, took advantage of it and proceeded to call, as well as
hold, the meeting in the absence of their adversaries secure in the
knowledge that the business of the day would not be subsequently
invalidated by such a complainant as Mr Nyemba raised.
The
position of the deponent to the applicant's affidavit and his
office bearers appeared to be a very precarious one. They were and
are fire-fighting left, right and centre, so to speak. They have a
court case pending under case number HC1603/14. They have an appeal
which they mounted in the Labour Court against the fifth respondent's
decision. They also did have the present application to content with
and they were voted out of office in a very convincing manner.
All
the above must have weighed heavily on them to a point where they
prepared the present application hurriedly and haphazardly, so it
would appear. Their argument remained very weak and thoroughly
unconvincing. They failed to establish their case on a balance of
probabilities.
The
application is, in the result, dismissed with costs.
Ndlovu
& Hwacha,
applicant's legal practitioners
Mangwana
& Partners,
3rd
respondent's legal practitioners
Scanlen
& Holderness,
7th
respondent's legal practitioners
