Opposed
Motion - Special Plea
MUHORE
J:
The
first plaintiff is the National Engineering Workers Union. The second
plaintiff is the elected President of the first plaintiff and the
third plaintiff is the Secretary General of the first plaintiff.
The
1st
defendant is the National Employment Council for the Engineering and
Iron and Steel Industry. The 2nd
defendant is the Engineering and Steel Association of Zimbabwe with
the 3rd defendant being the second defendants current President. The
4th
to 9th defendants are employees in the industry.
The
plaintiffs instituted a court action against the defendants in which
they sought the following order:
“THAT:
1.
It is hereby declared that the 4th to 9th defendants are not
legitimate members or holders of any office position in the 1st
plaintiff and/or 1st Defendant;
2.
It is hereby declared that 2nd to 9th
Defendants, or anyone claiming though them, have no locus standi to
act for or represent, in any capacity whatsoever, the 1st plaintiff
and/or the 1st Defendant or any institution/without the express
approval of the 1st Defendant;
3.
Defendants are hereby interdicted whatsoever in the
management/affairs in the 1st
Plaintiff or deciding who should represent the 1st plaintiff or
deciding who should represent the 1st
Plaintiff in the 1st defendant;
4.
It is hereby declared that the 2nd Plaintiff (or any person
succeeding him as President of the 1st Plaintiff) be allowed to chair
the proceedings/business of the 1st defendant up to the 31st of the
month of December that follows the lapse of a period of 12 calendar
months from the date of this court's order after which the
chairmanship of the 1st Defendant shall proceed on a rotational basis
and in terms of 1st Defendant's constitution.
5.
The 4th to 9th defendants (or anyone acting through them) are hereby
interdicted from entering the 1st plaintiff's property/premises or
using the 1st plaintiff's name, letterhead or logogram.
6.
The 1st, 2nd and 3rd defendants (or anyone acting through them) are
hereby ordered not to deny the Plaintiffs/1st Plaintiff's officials
full and unfettered access to all the premises/property and business
of the 1st
defendant.
7.
In respect of all acts, meetings, negotiations, decisions,
resolutions, building contracts, collective bargaining agreements,
payments or transactions conducted or executed by the Defendants (or
some or one of them) at/or in the name of the 1st Defendant or 1st
plaintiff, without the participation and approval of the plaintiffs
from 1st November 2018 to the date of this court's order, be and
are hereby declared null and void.
8.
The chairing of the meetings/business of the 1st defendant by the 3rd
defendant or any person who succeeds him before the grant of this
order is hereby declared null and void.
9.
The 1st defendant pay to the plaintiff the industrial outreach
monetary disbursements computed at 1% if the Engineering Monetary
Fund's monthly takings, plus 1% of the defendants' monthly
takings, with effect from the 1st November 2018 to the date of this
court order.
10.
Any monetary payments purportedly made to the 1st plaintiff through
the defendants or through modes/accounts other than 2nd plaintiff,
3rd
plaintiff or the 1st plaintiff's official bank accounts, are hereby
declared void.
11.
The 2nd to 9th defendants shall bear the costs of this suit on an
attorney and client scale.”
The
plaintiffs claims were met with a special plea being filed by the
defendants on 3 aspects:
(i)
The first aspect being a special plea on a lack of locus standi in
judicio by all three plaintiffs stating that the first plaintiff body
was a bogus union and a fabrication and that it belonged to the 2nd
and 3rd plaintiffs who had been ousted by the entire engineering
industry.
Further
it was specially pleaded that the 2nd and 3rd plaintiffs were no
longer office bearers in the genuine workers union and that they had
been dismissed from employment and therefore the 2nd and 3rd
plaintiffs had no capacity to sue on behalf of the National Workers
Engineering Union.
(ii)
The second special plea was that the matter was pending in another
court (lis alibi pendens) under case number HC8051/19; in which the
defendants claim was to cause the 2nd and 3rd plaintiffs to be barred
from instituting proceedings from filing suits in the name of the 1st
plaintiff.
(iii)
Lastly the defendants specially pleaded that matter had already been
determined in part (res judicata) in that some of the claims in the
declaration had already been determined and disposed of by the
Magistrates Court.
The
defendants sought a dismissal of the plaintiffs claims in their
entirety, if all or any of those special pleas were upheld.
Thereafter,
the defendants seemed to have abandoned taking the next procedural
steps in pursuing the determination of the special pleas immediately
as laid out under Order 20 Rule 138(a) and (b) of the High Court
Rules, 1971; in that they failed to set the matter down for the
hearing of their special pleas separately.
Order
21 Rule 138 reads as follows:
“138.
Procedure on filing special plea, exception or application to strike
out
When
a special plea, exception or application to strike out has been filed
—
(a)
the parties may consent within ten days of the filing to such special
plea, exception or application being set down for hearing in
accordance with subrule (2) of Rule 223;
(b)
failing consent either party may within a further period of four days
set the matter down for hearing in accordance with subrule (2) of
Rule 223;”
In
the result, the special pleas would be held over for determination at
the trial in this matter; but in the meantime and in terms of (c) the
defendants were required to have plead over the merits of their
respective cases in terms of Rule 138(c) which prescribes that:
“(c)
failing such consent and such application, the party pleading
specially, excepting or applying, shall within a further period of
four days plead over to the merits if he has not already done so and
the special plea, exception or application shall not be set down for
hearing before the trial.”
When
no pleas on the merits were forthcoming from the defendants, on the
17th January 2020 the plaintiffs filed a notice to plead and
intention to bar and served the same on the defendants.
The
defendants elected deliberately to withhold their pleas on the merits
and cited their reason for that decision as being that they had
pending special pleas which were yet to be disposed off by the court.
Such
an irreverent approach by the defendants resulted in the defendants
being barred from pleading and appearing in accordance with Order 12
Rule 83 which states:
“83.
Effect of Bar
While
a bar is in operation —
(a)
the registrar shall not accept for filing any pleading or other
document from the party barred; and
(b)
the party barred shall not be permitted to appear personally or by
legal practitioner in any subsequent proceedings in the action or
suit; except for the purpose of applying for the removal of the bar.”
Strictly
taken, the Registrar ought not have accepted any further pleadings
from the defendants; but assumedly the Registrar's office would
have been hard pressed to pick this up, given the voluminous court
filings which are processed in that office, and also because filings
on the defendants behalves were being done by registered legal
practitioners.
Be
that as it may, the matter ended up being enrolled on my opposed roll
for determination.
Strangely
the defendant's counsel audaciously appeared to argue their cases
and avoided informing the court that their clients had no right of
appearance in accordance with Order 12 Rule 83(b) supra.
The
defendants counsel ought to have been fully aware that they had no
right of audience with the court on the opposed roll of matters. See
General Leasing (Pvt) Ltd v Allied Timbers Zimbabwe (Pvt) Ltd HH76-15
at pages 2 and 3.
Furthermore,
none of the defendants filed Heads of Argument within the dies stated
in the rules, which further exacerbated their attempt at appearing to
argue the matter.
Also,
at the hearing of the matter the defendants represented that the
plaintiffs counsel had consented to waive the late filing of all the
defendants heads of argument.
However,
the indictment against counsel for the defendants was that they
avoided informing the court about the status of the bar pertaining to
their clients pleas; which I was already in effect.
The
latter issue was brought to my attention by the plaintiffs counsel
who then made an application for judgment to be entered in favour of
the plaintiffs, given that the defendants had not made the merits of
their respective cases known to the court.
The
court agreed with the plaintiffs submissions in that respect.
Accordingly,
I granted the plaintiffs judgment in their favour as prayed and as
elaborated above.
What
I did add to the order was a reference to the specific rules which
had guided my determination as is shown on the order which I granted
on the 23rd January 2020.
Ushewokunze
Law Chambers, plaintiffs legal practitioners
Caleb
Mucheche & Partners Law Chambers, 1st defendant's legal
practitioners
Lunga
Attorneys, 2nd
& 3rd defendants legal practitioners
Musoni
Masasire Law Chambers, 4th – 9th defendants legal practitioners
