Opposed
Application
MAFUSIRE
J
[1] Applicants
1 to 10 are one faction of a trade union. Respondents 2 to 6 are the
other. The trade union is the first respondent. The seventh
respondent is the undertaking or industry in which the trade union is
established. It is the employer. It is cited as a nominal party. It
did not file any papers, electing to abide by the decision of the
court.
[2] Respondents
2 to 6 are members of the national executive committee of the trade
union. The applicants allege respondents 2, 3 and 4 are no longer
employees of the seventh respondent. For that reason, they allege,
these respondents are automatically disqualified from continuous
membership of the trade union. So the applicants seek two
inter-related orders as follows:
(i)
that respondents 2, 3 and 4 are no longer members of the trade union
by virtue of the termination of their contracts of employment with
the employer; and
(ii)
that respondents 2, 3 and 4 are disqualified from holding positions
in the trade union's national executive committee.
[3] The
applicants also seek two inter-related orders in respect of the trade
union. They want it to hold elections to choose members of its
national executive committee and to hold annual general meetings in
terms of its constitution.
[4] Costs
of suit are sought against respondents 2, 3 and 4 on an
attorney-client scale.
[5] The
applicants allege they derive their power to sue from their
membership of the trade union and in terms of its constitution.
[6] The
respondents, except the employer, have all vehemently opposed the
application. Their grounds are multiple and disparate. They are both
technical and substantive. Initially, the technical grounds, or
points in
limine,
were these:
(i)
that in effect there is only one applicant before the court, the
first applicant, all the others having filed defective affidavits in
their efforts to support the first applicant;
(ii)
that the matter is res
judicata,
allegedly this court having previously issued two orders, essentially
and among other things, recognising, among other members, respondents
2, 3 and 4 as legitimate members of the trade union, and therefore
capable of holding executive positions in it;
(iii)
that the applicants lack the requisite locus
standi in judicio
to move the court in the manner they have done; and
(iv)
that the applicants should be non-suited for failure to exhaust such
of the domestic remedies as are provided for in the constitution of
the trade union, for example, the right of any member to sponsor or
motivate a two-thirds majority of the other members for a general
meeting to vote anyone out of office.
[7] The
points in
limine
were patently bogus. A few moments into argument, and following
exchanges with the Bench, Counsel for the respondents abandoned all
of them. Argument ensued on the substantive ground of opposition.
This was that the loss of employment by members of a trade union did
not automatically translate into losing their membership of the trade
union, or becoming ineligible to hold positions in the national
executive committee.
[8] The
respondents expanded their argument on the substantive ground of
opposition above. They said membership to a trade union was not
confined to employees in the respective undertaking only. Continued
membership, or loss of it, depends on the wording of the constitution
of the trade union. Ex-employees can remain members of a trade union.
Even students can become members of a trade union. By custom and
precedence, members of this particular trade union who in the past
have lost their employment in the undertaking have continued with
their membership, especially where they have been challenging their
loss of employment and the case would be pending in the courts. With
respondents 2, 3 and 4 in particular, they are still challenging
their termination of their contracts of employment and therefore,
there is no basis for the applicants to pursue the orders they are
seeking.
[9] With
regards the non-holding of general elections, the respondents argue
that the issue has been relegated to the periphery owing to the
endless legal fights that have dogged the trade union. But plans are
underway to hold the general meetings.
[10] It
is common cause that respondents 2, 3 and 4 lost their employment
three years ago in 2016. However, they allege they are challenging
their dismissal and that their cases are pending at the Supreme
Court.
[11] The
substantive issue before me is whether the respondents 2, 3 and 4
forfeited their trade union membership upon their loss of employment.
Corollary to that, or concomitantly, did they become ineligible to
hold positions in the executive committee of the trade union? I have
dealt with a similar situation before in Makarudze
& Anor v Bungu & Ors 2015
(1) ZLR 15 (H). I held that employment in the relevant undertaking or
industry is a pre-requisite for membership by any person to a trade
union in that undertaking or industry.
[12] Mrs
Dzitiro,
for the respondents, argues that Makarudze's
case above is distinguishable in that the constitution of the trade
union in question excluded non-employees from becoming members of the
trade union. She says, in contrast, the constitution of the first
respondent in
casu,
is wide enough to accommodate as members anyone who may be prepared
to abide by its conditions of membership, more so, ex-employees who
may still be fighting against their dismissal.
[13] Mrs
Dzitiro
further argues that the applicants have sought to rely on clauses of
the trade union's constitution on eligibility of membership instead
of relying on those dealing with the termination of membership. She
says once someone becomes a member of the trade union, his or her
termination of that membership depends on those clauses dealing with
termination of membership and that termination of employment is not
one of the criteria.
[14] The
answer to this case lies in the wording of the constitution of the
first respondent and the Labour Act, Cap
28:01.
I find no material difference between the scenario in Makarudze's
case above and the present. The substantive provisions of the
constitution in that case dealing with the eligibility of membership
to a trade are similar to those of the constitution of the trade
union in
casu.
For example, in
casu,
clause 6.0 of the constitution says membership of the union shall be
open to non-managerial employees
in the sugar milling industry. Thus, first and foremost, one has to
be employed
in the sugar milling industry to be eligible for membership of the
first respondent.
[15] Mrs
Dzitiro
says clause 6.0 is irrelevant. She says it merely opens the door for
membership. It does not shut it up against anyone, especially those
that have already entered. She says the clauses dealing with shutting
the door against members are 10.6 and 10.7.
[16] Clause
10.6 of the first respondent's constitution says a member of the
national executive committee vacates his seat upon resignation,
suspension or expulsion from membership of the trade union. He or she
also vacates his seat for absenteeism from any three consecutive
meetings without reasonable cause or on non-payment of subscriptions
for a period of more than three months. Clause 10.7 says any member
of the national executive committee may be removed from office if a
vote of no confidence is passed against them by a majority of members
at a general meeting. Undoubtedly, none of these provisions is
relevant to the respondents situation.
[17] But
Mrs Dzitiro's
argument is a ruse. In Makarudze
I said opening up membership of a trade union to anyone not employed
in the particular industry or undertaking is alien to trade unionism
in Zimbabwe. By virtue of section 4 of the Labour Act, the
entitlement to membership of a trade union and to hold any office in
it is that of someone called an employee. An employee is not just any
person. In terms of section 2 he or she is any person who performs
work or services for another person for remuneration or reward. A
non-employee or ex-employee is not an employee. In terms of section
27, the right to from trade unions is that of employees.
[18] Clauses
10.6 and 10.7 of the first respondent's constitution that form the
bedrock of Mrs Dzitiro's
argument are irrelevant. They are dealing with the wilful cessation
of office by a member of the national executive or upon breach by him
or her of some term or condition of the constitution or upon loss of
confidence in him or her by members. But before one gets to that one
has to have been qualified first to be a member of the trade union.
If he or she was not, but had got in anyway, that does not stop
disgruntled members like the applicants from challenging his or her
eligibility.
[19] At
all relevant times, respondents 2, 3 and 4 were not employees in the
sugar milling industry, or anywhere else for that matter. They were
ineligible to become or remain members of the first respondent. How
they might have lost their employment or that three years on they
were still fighting their dismissal, are issues of no moment.
Incidentally, the facts of the alleged appeal by the respondents have
not been ventilated before me. All that the respondents have said is
that the appeals for respondents 2 and 3 are pending at the Supreme
Court and that respondent 4 has lodged an application for leave to
appeal. But it is trite that an appeal against the decision of a
judicial body or quasi-judicial body that is not a superior court
does not suspend the decision. It is also trite that an application
for leave to appeal is not an appeal: Makarudze's
case, supra.
[20] Evidently,
as a last-ditch effort, Mrs Dzitiro
stitched together the argument that the
spirit
of the first respondent's constitution was such that a member's
loss of employment does not lead to an automatic cessation of
membership of the trade union. She pointed to clause 7.0 of the first
respondent's constitution. This clause says a member shall be
exempt from payment of subscriptions in respect of any particular
months during which he is unpaid (his salary) on account of
suspension without pay or is unemployed for two months. But even if
this argument had any semblance of probity, which it does not, the
cut-off period in terms of the clause is a maximum of two months. And
this is only in relation to the payment of subscriptions.
[21] Plainly,
the applicants have a right to be represented by genuine trade union
members. One who is not a member or one whose membership has lapsed
for one reason or other cannot hold a position on the first
respondent's national executive. Clearly the applicants are
entitled to relief as against respondents 2, 3 and 4.
[22] The
argument in respect of the relief sought against the first
respondent, relating to the holding of general meetings, has not been
fully developed. Both parties seem to have just ignored this aspect
of the case. The draft order on this aspect is open ended. An order
is sought directing the first respondent to hold elections to choose
members of the national executive committee. When should these
elections be held? The other relief sought is that the first
respondent should hold annual general meetings in terms of its
constitution. Again when? How many such annual general meetings?
[23] An
order of court is not a pious exhortation. It must be efficacious. It
must not be a brutum
fulmen.
Evidently, the energy and primary focus of the applicants have been
on the disqualification of respondents 2, 3 and 4, against whom costs
are sought on an attorney and client scale.
[24] However,
and be that as it may, given that the respondents have all but
admitted breach of the first respondent's constitution by not
holding general meetings as prescribed, I consider that even though
open ended, the remedies sought against the first respondent can also
be granted, albeit with slight modifications. Members elected to the
executive committee of the trade union must cause the holding of
general elections as prescribed by the trade union's constitution.
[25] But
even though the applicants have largely succeeded against respondents
2,3 and 4, I do not see anything warranting a penal order of costs
against them alone, especially given that the first respondent is
itself riddled with factionalism and has been embroiled in endless
litigation over the same issues for a long time. Furthermore, the
first respondent has opposed this application to the hilt. I find it
irrational that only respondents 2, 3 and 4 alone should be made to
bear the costs.
[26] In
the premises I make the following orders:
i/ The
second, third and fourth respondents ceased being members of the
first respondent upon the termination of their contracts of
employment with the seventh respondent.
ii/ By
reason of paragraph i/ above, the second, third and fourth
respondents are hereby disqualified from holding any positions in the
first respondent's national executive committee.
iii/ The
first respondent shall hold elections to choose members of the
national executive committee within sixty (60) days of the date of
this order, or within such other time frame as may be agreed upon.
iv/ The
first respondent shall hold an annual general meeting in terms of its
constitution by not later than the 31st
of December 2019.
v/ The
costs of this application shall be borne by the first, second, third
and fourth respondents, jointly and severally.
28
August 2019
Ndlovu
& Hwacha, applicants
legal practitioners
Mutumbwa
Mugabe & Partners,
first to sixth respondents legal practitioners
