URGENT
CHAMBER APPLICATION
WAMAMBO
J:
The
applicants filed an Urgent Chamber Application on 26th
September, 2019. The first to seventh respondents filed opposing
papers on the date of the hearing.
The
8th
to 14th
respondents did not file any papers and their position is that they
do not oppose the application, if the terms thereof are broadened to
encapsulate their interests.
Mr
K. Shamuyarira
a
trade unionist representing the 15th
respondent is opposed to the application. He also did not file
opposing papers.
The
relief sought was amended at the eleventh hour.
The
1st
to 7th
respondents opposing papers were predicated upon the original relief
sought. The relief that is now sought reads as follows;
“1.
INTERIM
RELIEF SOUGHT
1.1
It is ordered that pending the final resolution of this matter either
in the court of first instance or an appeal;
(a)
The applicants are to deposit the 'Trade Union Dues' for the
Zimbabwe Sugar Milling Industry Workers Union into the Master of the
High Court Trust Account until the final resolution of SC518/19.
2.
FINAL TERMS OF THE PROVISIONAL ORDER
2.1
The interim order is confirmed.
2.2
The 1st
to 14th
respondents shall pay costs of suit on an Attorney and client scale.”
The
background of the matter can be traced back to a matter adjudicated
upon by MAFUSIRE J in HMA38/19 referred to as Zvanyanya
and Others v ZISMIWU and Others.
This
matter was heard on 23 May 2019 and 27 June 2019 and the date of
written reasons is 28 August, 2019.
In
HMA38/19 the applicants therein who are members of a faction of a
trade union sought to have three respondents (namely 2nd,
3rd
and 4th
respondents) to be disqualified from membership of the trade union
and flowing therefrom to be disqualified from holding positions in
the trade unions national executive committee. The applicants in
HMA38/19 also sought an order to hold elections to choose members of
the national executive committee and to hold annual general meetings
in terms of its Constitution.
MAFUSIRE
J resolved the issues by way of an order which reads as follows;
“(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 respondents 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 no later than the 31st
December, 2019.
(v)
The costs of this application shall be borne by the first, second,
third and fourth respondents, jointly and severally.”
The
first to sixth respondents have since appealed against the whole,
final and definitive judgment under HMA38/19 to the Supreme Court.
The appeal appears under cover of SC518/19.
It
would appear that specifically because of the order under HMA38/19
and the developments thereafter the acrimony between the parties
intensified.
It
may be necessary to identify the parties at this stage.
The
1st
and second applicants are the employers.
The
1st
respondent is a registered trade union in terms of the laws of
Zimbabwe.
The
2nd
to 7th
respondents are members of a faction of 1st
respondent while the 8th
to 14th
respondents are members of the second faction.
The
two factions are involved in a fierce battle to control the 1st
respondent.
The
15th
respondent is ostensibly the mother body of 1st
respondent while the 14th
respondent is cited in her official capacity.
The
employer is by virtue of the law enjoined to transmit union dues to
the 1st
respondent.
The
situation has been complicated by the fights and disagreements
between the two factions set on wrestling and winning control over
the 1st
respondent.
The
applicant is of the view that in order to safeguard the union dues
they should be transmitted to a trustworthy and secure institution
namely the Master of the High Court. This is to prevent the funds
being misused or to stop or prevent the various warring factions
seeking to apportion a slice of the cake to themselves.
As
is usual in such applications points in
limine
were raised.
Some
of the points in
limine
seem to have been abandoned while others were seemingly overtaken by
events.
Points
in
limine
raised by 1st
to 7th
respondents were;
(i)
Firstly that the matter is not urgent.
Mrs
Dzitiro
referred to principles on urgency and various case law. She pointed
out that applicant filed heads of argument on 30 September, 2019 as
well as an amended draft order. These two sets of documents were only
served on her as counsel for 1st
to 7th
respondents ten minutes before the scheduled time for the hearing of
this application. No warning was given of the amended draft order.
Mr
Dzitiro
avers that in HMA38/19 the applicants chose to abide by the decision
of the Court. She sought to demonstrate that the various cases relied
upon by the applicants are either misplaced irrelevant or
misunderstood. She averred that applicants should not have approached
the court without notifying all the parties.
In
a long line of cases the issue of urgency has been defined and
traversed. Among other cases see: Kuvarega
v Registrar General and Another
1988 (1) ZLR 188 (HC); Shandong
Taishon Sunlight Investments Limited v Yunnan Linkun Investments
Group Company Limited & Others
HH6/16
at pages 6–7; Triple
C Pigs (Partnership and Colcom Foods Limited) v The Commissioner
General of Zimbabwe Revenue Authority
HH7/2007
at pages 4–5; Document
Support Centre (Private) Limited v T.F. Mapuvire
HH117/2006
at pages 3–4.
Ms
Dzitiro
also avers that the order sought is final in nature contrary to
principles established in Brian
Andrew Cawood v Elasto Madzingira
HMA12/2017.
Mr
Rutanhira
for the applicants argued that the matter is indeed urgent. He
strongly based his argument on the fact that applicants are enjoined
at law to disburse union dues to the trade union every month lest
they face civil or criminal liabilities.
He
further pointed out that there has been a lot of infighting between
the two faction is of 1st
respondent. To that end the two factions are battling through the
employer and either faction is demanding union dues from the
applicants.
A
lot more was traversed by Mr
Rutanhira
which spoke more to the merits of the case.
I
am however of the view that urgency has been proved.
There
is clear acrimony between the alleged factions. Pursuant to the
judgment in HMA38/19 the fighting for control of 1st
respondent intensified. The appeal launched against the decision did
not help matters either. The legal obligation of the applicants to
disburse union dues to the 1st
respondent is common cause. The need to clarify how the disbursement
and to whom it should be made is clearly an urgent matter.
I
am satisfied that when the need to act arose the applicants did act
expeditiously in the circumstances of this case.
I
am not with Ms
Dzitiro
on her argument that the draft order is final in nature.
The
draft order is firstly clearly aimed at release of the trade union
dues to the Master of High Court Trust Account pending the resolution
of SC518/19.
The
final terms of the provisional order pertains the confirmation of the
said interim order which interim order is predicated upon a
resolution of SC518/19.
The
facts of Brian
Andrew Cawood v Elasto Madzinga
are clearly distinguishable from this case. It is important to give
proper notice to other parties of any amendments sought timeously and
to serve them with the application.
In
this case there was an adjournment on the hearing date from 10:00hrs
to 14:00hrs. This was an attempt to accommodate Advocate
Zhuwarara
at Mr
Rutanhira's
behest.
Advocate
Zhuwarara
was
said to be busy at the Supreme Court with another matter.
Advocate
Zhuwarara
did not make it at the end and Mr
Rutanhira
decided to proceed representing the applicants.
I
am of the view that the adjournment to some extent mitigated the
delayed notification to the other parties of the amendments to the
draft order.
Ms
Dzitiro
though partially disadvantaged because of receiving the applicants
papers late in the day, appeared to rise to the occasion in the
circumstances.
I
have given deep thought to the various points in
limine
raised and am of the view that they are not meritorious.
On
the merits I should point out what has been pointed out elsewhere
that the parties are involved in various cases wherein their battles
appear unabated.
The
point is made that pursuant to the judgment in HMA38/19 there are
only 2 executive members of the 1st
respondent remaining.
The
question posed is what will happen it there is a deadlock.
Ms
Dzitiro
argues that upon the appeal being lodged the position reverses to
that before the appeal.
Ms
Dzitiro
made further submissions as follows;
(i)
Applicants are the ones manufacturing the confusion.
(ii)
Applicants created the problem by participating in a meeting of 13
July, 2019.
(iii)
Applicants seek to cripple the 1st
respondent and only want to place their favourite candidates in 1st
respondent's executive committee before they can transmit dues to
1st
respondent.
While
there is clearly a tug of war between the parties, there is need for
a resolution one way or the other. There may also be some truth as to
the interests of applicants in the matter.
But
is the best resolution to continue paying union dues to 1st
respondent in the current situation bedevilled by division and
factual fighting?
While
there may be other avenues or solutions to the problem I am
determining the matter with an eye on the relief sought.
Justification
has been given of the need for a neutral party to receive the union
dues pending the Supreme Court resolution of the appeal.
I
find that the Trust Fund of the Master of the High Court is a secure
account to deposit the union dues in the face of various efforts to
control 1st
respondent.
To
some extent not having access to the dues by either faction may knock
sense into the various factions to put their houses in order so that
normality prevails.
I
am mindful of Mr
Ndhlovu's
submissions on behalf of 8th
to 14th
respondents on the merits. It appears however that he was principally
not opposed to the application.
He
had concerns on broadening the relief sought.
Mr
Shamuyarira
pointed out that 1st
respondent is their affiliate.
I
have to mention that that position is not shared by all – see
Annexure 'K' at page 62 of the 1st
to 7th
respondents notice of opposition.
In
the circumstances I find that the application has merit.
It
is hereby ordered that the application be and is hereby granted in
terms of the draft order.
Scanlen
and Holderness,
applicants legal practitioners
Mutumbwa,
Mugabe and Partners,
1st
to 7th
respondents legal practitioners
Ndlovu
and Hwacha,
8th
to 14th
respondents legal practitioners
Zimbabwe
Federation of Trade Unions,
15th
respondent's representatives
