BHUNU
JA:
[1] This
is an appeal against the whole judgment of the High Court (the court
a
quo)
which ordered the removal of the three appellants from being
signatories to the first respondent's bank account with the second
respondent. The appeal is opposed by the first respondent. The
second respondent has chosen not to appear both before the court a
quo
and this court. It appears that the second respondent has chosen to
remain neutral as the outcome of the court proceedings is unlikely to
prejudice it one way or the other.
PRELIMINARY
POINT
[2] At
the commencement of the appeal hearing Mrs Mabwe
for the first respondent, took a preliminary point seeking the
removal of the matter from the roll to facilitate consolidation of
this matter with other appeals in case records SC27/20, SC32/20 and
SC34/20.
[3] She
argued that it would be unjust to determine this appeal before the
main matter has been determined. Asked by the court as to the stage
the other matters she sought to be consolidated were she said that
the records in SC27/20 and SC32/20 were complete but was not sure of
record SC34/20. Asked whether she had given notice of the intended
consolidation to all the parties she stated that she had only given
notice to some of the interested parties. She was therefore seeking
removal of the case from the roll to enable her to give the relevant
notices to all the remaining interested parties.
[4] Mr
Ushewokunze
objected to the application for the removal of the case from the
roll. He submitted that it was not true that there were three
related cases pending before this Court because the appeal in case
SC34/20 had been abandoned. It was his submission that the judgments
of CHIKOWERO J and MUSITHU J respectively had not been appealed
against. He further pointed out that in both outstanding appeals, the
second respondent is not even a party and the respondents are not the
appellants. Mr Ushewokunze
pointed
out that Mrs Mabwe's
client Ben Mambara, had been barred.
[5] Finally
he argued that in the circumstances of this case, the Court has a
discretion which it should exercise in his favour because it was not
convenient to remove the matter from the roll causing further
unnecessary delays.
[6] Having
considered the submissions by counsel, we noted that Mrs Mabwe
had not established a compelling case for removal of the case from
the roll. She was not even certain of the status of the appeals she
intended to have consolidated. Apart from merely submitting that it
will be unjust to proceed with this appeal before the main matter has
been determined she did not motivate what prejudice or injustice her
client would suffer if the matter was not removed from the roll. In
her written submissions she made it clear that it would be proper to
proceed with this appeal without consolidation when she says at p1 of
her heads of argument:
“Whilst
it would be proper to deal with the current appeal alone,
this will be a matter where the court may have to consolidate all
matters involving the parties,” (My emphasis)
What
this means is that there is nothing wrong if the appeal is determined
alone without consolidation.
[7]
Upon careful consideration of submissions made by counsel, we took
the view that the question of signatories to the bank account needed
to be resolved expeditiously without being drawn back by the
uncertainties surrounding the state of preparedness of the other
cases to be heard on appeal. For that reason, we came to the
conclusion that the requested removal of the case from the roll will
not serve any useful purpose but only to cause uncertainty and
unnecessary delay. Consequently, we dismissed the application and
directed that the appeal hearing must proceed. I now turn to consider
the appeal on the merits.
BRIEF
BACKGROUND OF THE CASE
[8] The
first respondent is a duly registered trade union representing the
interests of employees in the Engineering, Iron and Steel sector
hereinafter referred to as the Union. The Union opened and maintains
a Bank Account Number 6327897 with the second respondent bank. On the
other hand, the first and second appellants were employed by the
Union as its president and secretary general respectively, whereas
the third appellant was its trustee.
[9] At
the inception of the bank account, the three appellants were
appointed by Union resolution dated 15 February 2019 as signatories
to the said bank account in their respective capacities as Union
officials. The union then sought to remove the appellants from the
panel of signatories to its bank account on the basis that they had
ceased to be union officials.
[10] In
its founding affidavit deposed to by Ben Mambara, the union averred
that the first and second appellants were dismissed from employment
following disciplinary proceedings on 22 April 2019 and 14 June 2019
respectively. The third appellant's trusteeship had expired through
the effluxion of time. The union provided documentary evidence of the
appellants' dismissal from office.
[11] The
appellants however resisted their removals from being bank account
signatories on the basis that they were still union officials. They
also challenged the authenticity of the union resolution that
authorised their removal as signatories to the union bank account.
They challenged the legitimacy of Ben Mambara as the incumbent
president of the union and deponent to its founding affidavit. In
that vein they refused to relinquish their respective mandates as
signatories to the Union's bank accounts hence the application for
their removal as bank signatories in the court
a
quo.
[12] The
case has been the subject of various conflicting judgments in the
court a
quo
which
are now pending in this court on appeal. On 23 January 2020, MUSHORE
J issued a lengthy order in favour of the appellants under case
number HC8111/19. The order basically declared that the three
appellants were the legitimate office holders entitled to run the
affairs of the first respondent without let or hindrance. On the
other hand, the order declared Ben Mambara to be an illegitimate
president of the first respondent. In short the judgment restored the
status
quo ante
prior to the appellants' dismissal from office. The judgment is now
a subject of appeal and it triggered a series of other appeals under
appeal case numbers SC27/2020, SC32/2020 and SC34/2020.
[13] Following
the restoration of the status quo
ante
by MUSHORE J's order the respondents were aggrieved by the manner
in which the appellants were handling the first respondent's funds.
Resultantly, the first respondent represented by Ben Mambara
approached the court a
quo
under
case number HC6844/19 seeking their removal from office as
signatories of its bank account. The first respondent was successful
in this respect. The current appeal challenges the judgment on the
basis that MUSHORE J's order had barred Ben Mambara and six others
from acting as the Union's officers. The appellants claim to have
been declared the legitimate signatories to the bank account by the
judgment which is still extant.
[14] Notwithstanding
the appeal, the first respondent sought leave of the court a
quo
to execute the order removing the appellants from being signatories
to its bank account under case number HC444/20. CHIKOWERO J dismissed
the application. Another application for the reactivation of the
Union's bank account was dismissed by MUSITU J on 15 September
2020.
DETERMINATION
OF THE COURT A
QUO
[15] The
court a
quo
found that Ben Mambara had the requisite authority to represent the
union. In coming to that conclusion the learned judge a
quo
reasoned that the union being a legal persona
could only be represented by a natural person duly authorised thereto
by a valid union resolution. Consequently, upon the removal of the
first appellant from office as Union President, the Union by
resolution dated 15 February 2019 replaced the first appellant with
Ben Mambara. The resolution also conferred him with authority to
represent the respondent in these proceedings.
[16]
The resolution reads in part:
“IT
WAS RESOLVED:
2.
That the President Ben Mambara shall sign documents and represent the
Union and at NEC level.
SIGNED
AT BULAWAYO this 15th
February 2019.
Signed
……………………………………
(SECRETARY).”
[17] Having
found that Ben Mambara was properly appointed as the Union President
and Union representative, the learned judge a
quo
proceeded to hold that the appellants were no longer Union officials.
That being the case, they could no longer continue to be signatories
to the Union's bank account. On the basis of such finding he
proceeded to issue the following order:
“IT
IS ORDERD THAT:
1.
The first respondent be and is hereby ordered to delete or remove
Shepard Mashingaidze, Wise Garira and Bayayi Bayayi from being
signatories of applicant's Account No. 6327897 held with the 1st
respondent.
2.
The 2nd
to 4th
Respondents
jointly and severally one paying the others to be absolved, pay costs
at the legal practitioner and client scale.”
[18] Counsel
for the first 1st respondent has not however sought to sustain and
enforce the above order. She has in fact implored the court to
exercise its review jurisdiction under section 25 of the Supreme
Court Act [Chapter
7:13]
on account of perceived irregularity. Wherefore she prayed for an
order in the following terms:
“Having
utilised the powers granted to it under section 25 of the Supreme
Court Act [7:13], the following is ordered:
(a)
Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be
and are hereby set consolidated.
(b)
The judgment of the High Court under HC8111/2019 granted by MUSHORE J
on 23rd
January 2020 be and is hereby set aside.
(c)
The judgment of the High Court under HC6844/20 by TAGU J on 20th
May 2020 be and is hereby set aside.
(d)
The judgment of the High Court under HC444/20 granted by CHIKOWERO J
on 8th
July 2020 be and is hereby set aside.
(e)
The judgment of the High Court under HC594/20 by MUSITHU J on 15th
September 200 be and is hereby set aside.
(f)
HC8111/19 is remitted back to the High Court for a hearing de
novo
before a different judge.
(g)
Pending
the determination of HC8111/19, 2nd
Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not
take any steps that will interfere with the operations of the 1st
Defendant. (Emphasis
provided)
2.
It is thus prayed.”
[19]
It is plain that the above relief sought is premised on the
ill-conceived assumption that the court would grant the request for
consolidation. Paragraph 'g' of the draft order however, seems to
have some merits because it seeks to protect the bank account from
abuse by persons who are for the time being no longer its officials
pending the final determination of the parties' competing rights.
[20] The
Court having dismissed the prayer for consolidation, paras (a) to (f)
of the first respondent's prayer cannot stand as they are premised
on the envisaged consolidation which never materialised. For that
reason, the Court cannot interfere with appeals which are not before
it. I will therefore focus on the instant appeal before this Court.
No application for review can be brought in terms of section 25 of
the Act. The court acts mero
motu.
Thus Mrs Mabwe
was merely raising the court's attention to exercise its discretion
in this regard.
ANALYSIS
OF THE FACTS AND THE LAW
[21] It
is common cause that all the appellants were appointed as signatories
to the bank account by virtue of their status as Union officials in
their respective capacities as President, Secretary General and
Trustee. That being the case, common sense dictates that their status
as signatories to the bank account terminates upon cessation of
office. It stands to reason that when the reason for the appointment
falls away the appointments also fall away. The fundamental question
that the learned judge a
quo
had to answer was whether the appellants were still in office for
them to retain their status as signatories to the Union's bank
account. He answered that question in the negative. The correctness
or otherwise of that judgment is yet to be determined on appeal.
[22] The
difficulty with this case is that the appeal falls to be determined
on the basis of conflicting judgments emanating from the same court a
quo.
The position in our law is clear that judicial judgments are correct
until they have been pronounced otherwise by a higher court of
competent jurisdiction. In the South African case of Mkize
v Swemmer & Ors
1967 (1) SA 186 the court held that, “Judicial
decisions will ordinarily stand until set aside by way of appeal.”
Back home in the case of Williams
& Anor v Msipha NO & Ors
2010 (2) ZLR 552 (5) at p 567C, this Court held that, “Only
an appeal court has the right to say that a judicial decision is
wrong.”
[23] Given
the position of our law in this respect, the logical conclusion is
that all the conflicting judgments referred to in this case are
correct until this Court has resolved the conflicts. Before that no
one can authoritatively say that any of the impugned judgments are
wrong.
[24] Paragraph
(g) of the first respondent's prayer seeks to downgrade the order
granted by the court a
quo
in HC8111/20 to a temporary interdict pending the determination of
the main dispute on appeal. There is need to interrogate that
proposal on the merits.
[25] It
is common cause that first and second appellants were employed by the
Union. They were dismissed from employment following disciplinary
proceedings. They have since appealed against their dismissal. That
much is not in dispute. In terms of section 92E(2) of the Labour Act
[Chapter
28:01]
an appeal shall not suspend the decision appealed against.
[26] In
interpreting the section in CFI
Retail (Pvt) Ltd v Manyika
MALABA
DCJ as he then was observed that:
“Section
92E(2) provides that the noting of an appeal to the Labour Court
against a determination or decision does not have the effect of
suspending the operation of the determination or decision appealed
against. The purpose of the section is to provide for the effect of
the noting of an appeal in terms of the Act on the enforcement of the
determination or decision. The provision is the reversal of the
common law principle that the noting of an appeal against a judgment
or decision of a tribunal or lower court suspends the execution of
the judgment or decision pending the determination of an appeal”.
[27] The
same applies to appeals against the judgments or decisions of the
Labour Court. This is because there is no statutory provision for the
suspension of its judgments or decisions pending appeal. The common
law rule that an appeal suspends the decision appealed against only
applies to superior courts of inherent jurisdiction. In Founders
Building Society v Mazula
the court held that:
“The
rule that an appeal suspends the operation of the decision appealed
against applies only to superior courts. It does not apply to other
tribunals unless the relevant statute so provides.”
[28] In
the absence of statutory authorisation the common law rule that an
appeal suspends the judgment or decision appealed against does not
apply to any appeals in terms of the Labour Act. Had the appellants
wanted to remain in office despite their dismissal from employment,
they should have successfully applied for an interim order staying
execution pending appeal in terms of section 92E(3) of the Act. See
Greenland
v Zimbabwe Community Health Intervention Research Project
(ZICHIRE).
This
they did not do. What this means is that whether or not they have
appealed against their dismissals in terms of the Labour Act, it does
not matter whether or not the dismissals were correct at law. It is
therefore an exercise in futility for both appellants at this stage
to impugn or cast aspersions on the decision of the inferior tribunal
that dismissed them from employment. They stand dismissed from
employment until their respective appeals have been reversed on
appeal. As regards the third appellant, it is common cause that he
was appointed as Trustee by Union resolution and was removed from
office by Union resolution on account of the expiration of his term
of office. Following his removal from office he is de
facto
out of office.
[29] The
net result is that all the three appellants are de
facto
out of office as Union officials. Although they have appealed
against their removal from office, in the interim the balance of
convenience favours the respondents. It is highly undesirable and a
recipe for disaster and irreparable harm that a person dismissed from
office whether rightly or wrongly continues to be a signatory to
his/her principal's bank account pending appeal.
[30]
Having come to the unassailable conclusion that the appellants are
currently no longer officials of the first respondent, the court a
quo
cannot be faulted for holding that the appellants are unsuited to be
signatories to the first respondent's bank account as things stand.
The court a
quo
however fell into error in making a final order before the parties
competing rights have been conclusively determined on appeal.
[31] The
mere fact that there were numerous conflicting decisions on the same
matter emanating from the same court on various aspects of the matter
meant that there was uncertainty on the appellants prospects of
success on appeal. Despite that knowledge they chose not to obey
judicial and administrative processes that removed them from office
and ultimately from being signatories to the first respondent's
bank account. It is always wrong for a person to insist on being a
signatory to another's bank account without that person's
consent. Even assuming for one moment that the appellants had been
wrongfully removed from office, they had no right to fasten onto
being signatories to the Union's bank account without its consent.
[32] Given
the unsavoury chaotic state of affairs created by the various
conflicting judgments emanating from the court a
quo,
this is in my view an appropriate case where the Court must resort to
its inherent jurisdiction to restore order pending appeal. In
Williams
and another v Msipha N.O and Ors (supra)
this
court held that:
“Once
the Supreme Court is seized with a matter, it has inherent
jurisdiction to control its process. That jurisdiction includes the
power to control the process of the court, including the prevention
of execution of a judgment pending the hearing of an application. It
thus has the power to restrain the magistrate and the
Attorney-General from relying on the magistrate's decision…”
[33] What
this means is that the court in this case can achieve justice without
recourse to its review jurisdiction as requested by Mrs Mabwe. In my
view, it is always preferable for the Court to use its original
inherent jurisdiction where it is possible to do justice without
recourse to borrowed jurisdiction under section 25 of the Supreme
Court Act. I say borrowed jurisdiction because the section clothes
this court with the jurisdiction of the High court where there is a
lacuna in its own jurisdiction.
COSTS
[32] The
courts always frown upon failure to obey court orders. The appellants
moral turpitude in this case was however ameliorated by the fact that
theirs was not a naked disobedience of a court order as they appear
to have been ill-advised to act on the basis of a court order that
had been overtaken by events. For that reason, punitive costs were
not warranted. The fact however stands that TAGU J's order being a
later order to that of MUSHORE J's order ought to have been obeyed.
This is however not to detract from the fact that there is need to
preserve order and the bank account from abuse pending the final
determination of the dispute on appeal.
DISPOSAL
[33]
In the result, it is ordered that:
1.
The appeal partially succeeds with each party bearing its own costs.
2.
The order of the court a
quo
is set aside and substituted with:
“(a)
Pending the determination of HC8111/19, 2nd,
3rd
plaintiff and 3rd
to 9th
defendants shall not take any steps that will interfere with the
operations of the first respondent pending.
(b)
The applicants shall bear the costs of the application jointly and
severally the one paying and the other to be absolved.”
GUVAVA
JA:
I agree
KUDYA
AJA: I
agree
Ushewokunze
Legal Practitioners,
the
1st
to 3rd
appellants legal practitioners
Makuru
& Partners,
the
1st
respondent's legal practitioners
1.
SC8/16 at p4
2.
2000 (1) ZLR 529
3.
HH93/13
