Workers Committee, Trade Unions, Union Membership, Legal Representation and Obligations of Workers Representatives

SC88-05 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs CAUTION NHARARA
Ruled By: CHEDA JA, MALABA JA and GWAUNZA JA

In a judgment, No.LRT/H/238/2002, dated 26 September 2002, the Labour Relations Tribunal (now the Labour Court) made an order for the reinstatement of the respondent to his employment by the appellant. Part of the order read:“In the event that reinstatement is no longer an option, the respondent be and is ...

SC16-12 : CT BOLTS (PVT) LTD vs WORKERS COMMITTEE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

Section 23(1) of the Labour Act [Chapter 28:01] provides that employees employed by any one employer may appoint, or elect, a workers committee to represent their interests. On the functions of the workers committee, section 24 of the Labour Act [Chapter 28:01] provides, in subsection (1) as follows:“(1) A workers committee shall –(a) Subject to this ...

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
Ruled By: GWAUNZA JA

The respondent was employed by the appellant as manager of its Mutare branch. On 25 June 2002, a Mr G Good ("Mr Good"), who was the Director responsible for Sales and Marketing, addressed a letter to the respondent suspending him from duty with immediate effect without pay and benefits.

The suspension followed an investigation conducted at the instance of the appellant into the offences allegedly committed by the respondent. The offences essentially were dishonesty, theft of company property, and gross dereliction of duty.

Mr Good had considered both the findings of the investigation and the respondent's response to them, before suspending him. The letter of suspension referred to invited the respondent to report to the appellant's Mutare Branch for a disciplinary hearing on the 3rd of July 2002.

The hearing was to be held in terms of Step 2 of the "Disciplinary Structure and Levels of Authority", part of the appellant's Code of Conduct.

A day before that date, the respondent's legal practitioner addressed a letter to the appellant:

(a) Requesting a postponement of the hearing to 12 July 2002;

(b) Asking for confirmation that the respondent would be entitled to legal representation at the hearing; and

(c) Objecting to the respondent being represented at the hearing by a member of the Workers' Committee on the ground that, as a Branch Manager, he did not "belong" to the Workers' Committee. Also that, in any case, most of the allegations he was facing stemmed from his subordinates.

It would appear from the record that the request for legal representation of the respondent at the hearing, which was postponed to 10 July 2002, was denied.

The respondent's legal practitioners wrote again to the appellant on 9 July 2002, reiterating their argument that the respondent could not be represented by the Workers Committee at the disciplinary hearing. In the same letter the legal practitioners pointed out as follows:

"If indeed the idea of his being legal (sic) represented at the hearing is disagreeable, then we suggest that a mutually agreed managerial representative be appointed to represent him or alternatively the matter should be referred to the Ministry of Labour for adjudication.

Please note that under our advice Mr Gwekwerere will not be attending the hearing set for Wednesday the 10th July and will only attend a hearing which meets the minimum requirements of justice and fair play."

The disciplinary hearing was duly held, in the absence of the respondent, on 10 July 2002. He was found guilty as charged and dismissed from his employment.

SC04-14 : DAVID MOYO vs RURAL ELECTRIFICATION AGENCY
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

The appellant was employed by the respondent as an Accounting Officer.On 22 May 2009, he was handed a letter suspending him from his employment on charges of habitual and substantial neglect of duties in terms of section 4(g) of the Labour (National Employment Code of Conduct) Regulations, 2006 (“the Regulations”) ...

SC51-16 : ZESA TECHNICAL EMPLOYEES ASSOCIATION vs ZESA HOLDINGS (PRIVATE) LIMITED
Ruled By: MALABA DCJ

In Chambers in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975. It is opposed.The parties concluded a Collective Bargaining Agreement but did not register it. The respondent proceeded to pay salary and benefits to all managerial employees as provided for in the Collective Bargaining Agreement ...

In Chambers in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975.

It is opposed.

The parties concluded a Collective Bargaining Agreement but did not register it. The respondent proceeded to pay salary and benefits to all managerial employees as provided for in the Collective Bargaining Agreement for two months. After two months, the respondent changed course and reduced the salary and benefits.

The applicant was aggrieved by this move and approached an arbitrator who ruled in favour of the respondent.

The applicant appealed to the Labour Court which upheld the decision of the arbitrator to the effect that the Collective Bargaining Agreement entered between the parties was invalid and not binding. The Labour Court and the arbitrator arrived at that decision on the ground that a Collective Bargaining Agreement is a product of the application of the provisions of the Labour Act [Chapter 28:01], and, as such, can only come into existence and have binding force upon strict compliance with the statutory provisions.

The applicant, which, at that time, was a registered trade union, was dissatisfied with the Labour Court decision. It appealed against that decision to the Supreme Court. It however did not file a valid notice of appeal and the matter was struck off the roll with costs on 31 July 2015.

The applicant now seeks the indulgence of the court to appeal out of time.

The papers show…, that this application was made for what is called an 'application for condonation and reinstatement of an appeal on 2 November 2015' in the name of the applicant.

It is common cause that the applicant has since ceased to exist as a trade union. There was no disclosure in the founding affidavit of the fact that there was no longer an entity going by the name of the applicant. It only became apparent during the hearing of the application that the entity that had appeared before the Labour Court in the name of the applicant had ceased to exist.

Counsel for the respondent raised a number of objections to the application. The most important point taken by counsel for the respondent was that there was no proper application before the court because the entity seeking to invoke the protection of the law does not exist.

Counsel for the applicant, whilst conceding that the entity that appeared before the Labour Court no longer exists, indicated that there is, in existence a trade union going by the name National Energy Workers Union who took over the rights and obligations of the defunct entity which appeared before the Labour Court. Until counsel for the applicant disclosed the information in his address to the court there was no disclosure in the papers of the existence of the new trade union. No mention of it had been made in the founding affidavit.

Counsel for the respondent pointed out that there should have been an application by the new trade union for an order of substitution of the party to enable the new trade union to claim the rights and obligations of the former trade union in the proceedings. As matters stand the new trade union remains without any right to make any claim in the proceedings.

The issue before the Court is whether the application was validly made by a non-existing entity. The starting point here is section 29(2) of the Labour Act [Chapter 28:01] (“the Act”) which provides:

“Every trade union, employers organisation or federation shall, upon registration, become a body corporate and shall, in its corporate name, be capable of suing and being sued, of purchasing or otherwise acquiring, holding or alienating property, movable or immovable, and of doing any other act or thing which its constitution requires it to do, or which a body corporate may, by law, do.”…,.

It is clear from the reading of section 29(2) of the Labour Act [Chapter 28:01] that once a trade union is registered it becomes a body corporate, having the power to sue or be sued. It is also true that only an existing corporate body has the capacity to sue or be sued. Once an entity ceases to exist, it loses its capacity to sue or be sued. It ceases to enjoy any of the rights enjoyed by a registered body corporate. Upon dissolution, a trade union ceases to enjoy the rights enjoyed by registered trade unions, and, as such becomes a non-existing entity which lacks the capacity to institute proceedings and claim rights. No obligations can be enforced against a non-existent entity.

Although the Labour Act does not expressly provide for the effect of dissolution of a trade union, it can be noted from the reading of section 29(2) of the Labour Act [Chapter 28:01] that once a trade union is dissolved it ceases to be a body corporate and therefore it loses the rights which a registered trade union enjoys. These rights include the right to sue or be sued which rights can only be exercised by a body corporate.

The case of National Entitled Workers Union (NEWU) v Commission for Conciliation, Mediation and Arbitration and Others [2010] ZALC 155 is instructive on this issue. The court said the following:

“The other important principle from the CCMA's case, which has not been stated in so many words, is that the de-registration of a trade union does not dissolve that union as a voluntary association. This means a de-registered trade union is entitled to continue its existence in terms of the right to Freedom of Association. A de-registered trade union does, however; lose certain rights accorded to it by virtue of registration in terms of the LRA. One of the rights which a deregistered trade union loses due to de-registration is the right to represent its members before all the statutory dispute resolution bodies. In respect of the court, a de-registered trade union loses its right of appearance accorded to it in terms of s161 of the LRA.”…,.

C. WILFRED JENKS, in his book The International Protection of Trade Union Freedom…, has the following to say:

“In a case relating to New Zealand, the deregistration of a trade union has the effect of revoking privileges, such as legal recognition, the right to conclude legally enforceable collective agreements and the exclusive right to represent the workers at all stages of conciliation and arbitration procedure…,.”

From the above, it is clear that once a trade a union is dissolved it loses certain rights that a registered trade union, in terms of section 29(2) of the Labour Act [Chapter 28:01], enjoys. These rights include the right to sue or be sued.

The entity presented as the applicant lost the rights bestowed to it in terms of section 29(2) of the Labour Act [Chapter 28:01] the moment it was de-registered, and, as such, cannot bring proceedings before the Court.

SC42-17 : ZIMBABWE UNITED PASSENGERS COMPANY (ZUPCO) vs ONSON MASHINGA
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and UCHENA JA

The appellant was the respondent's employer. The respondent was, over and above being the appellant's Stores Clerk, the Harare Depot Chairman and National Chairman of the appellant's Workers' Committee. Below him, in the Workers' Committee, was the Chairman of Khami Depot Workers' Committee as well as the Harare Workers' Committee which he chaired. Issues ...

Issues from Depot workers' committees would be forwarded to him by the two workers' committees.

The appellant had, due to financial challenges, been unable to pay part of its employees' salaries for 2009 and 2010. It had also not paid their 2013 salary increases and was introducing cost cutting measures which affected employee's conditions of service. The workers, through their Depot workers' committees, instructed the respondent to refer their grievances to legal practitioners. The respondent obliged and engaged the services of Wintertons Legal Practitioners which wrote to the appellant about the workers' grievances threatening to institute legal action. The dispute between the appellant and its employees was reported in a local newspaper.

There is no allegation or evidence as to who leaked it to the press.

The appellant preferred the following misconduct charges against the respondent:

“1. It is alleged that you did not follow established procedures in that you did not follow the laid down grievances procedures to register your grievances but instead went direct to institute legal proceedings against the company as is evidenced by a letter from your lawyers Wintertons Legal Practitioners dated 30 July 2014.

2. Further to that, you did not follow standing instructions which state that whenever you wish to meet with the workers you write a letter to the Human Resources department seeking permission to hold the meeting. You held a meeting with 813 employees as evidenced by the document with 813 names attached to your legal representative's letter. You did not seek clearance from the HR Department before holding the meeting and the company was not advised of the agenda of the meeting.

3. You had no authority to represent all the employees cited in the paragraph above outside the company and your conduct in so doing was disruptive of the business instead of being productive. You did not furnish management with the resolution to institute proceedings.”…,.

In his response to the charges, the respondent said:

“With regard to the holding of (sic) general meeting with employees and reference of matter to our legal representative, I kindly refer you to the minutes of the last two Works Council meetings and;

With regard to caption of my name and 813 others, I hope you sincerely appreciate that I am the National Chairman of the workers' committee and that action is provided for in terms of section H. 7(a) of S. I. 67 of 2012.

As of misrepresentation, I have not received any one distancing themselves from the issues and request all workers' committee members to the last two Works Council meetings to be availed as witnesses on the hearing day.”…,.

A disciplinary hearing was subsequently held.

The panel of four members was divided with two finding that the respondent be found guilty as charged and two finding that the respondent should be acquitted. The case was referred to the appellant's Acting CEO who found the respondent guilty and dismissed him from employment.

The respondent appealed to the Labour Court which held that his appeal had merit and ordered his reinstatement without loss of salary and benefits from the date of dismissal.

The court a quo found that section 24 of the Labour Act does not require the respondent to obtain a petition or signatures of the employees for him to represent them. Section 24 of the Labour Act authorises members of a workers' committee to represent its members. In view of the provisions of section 24, the court a quo held that the respondent had authority to refer the dispute to legal practitioners on behalf of the workers and that the respondent, now appellant, did not dispute that workers were entitled to legal representation.

The Labour court also found that the penalty of dismissal should not have been imposed because the Code provides for two written warnings before dismissal can be imposed.

The appellant was aggrieved by the court a quo's decision. It appealed to this court on the following grounds:

1. The court a quo erred in law in tempering (sic) with the penalty imposed by the Disciplinary Committee without any legal basis to do so.

2. The court a quo erred in law in ordering that dismissal was not appropriate in circumstances where the misconduct committed by the respondent went to the root of the employment contract and the penalty of dismissal was the appropriate penalty.

3. The court a quo erred in finding that the respondent was dismissed for exercising his right as a trade union or worker's committee member when it was clear on the evidence before it that the respondent did not have the mandate to represent the cited employees; under the circumstances, such finding is outrageous and in clear defiance of logic a sensible court applying its mind to the law and the facts would not have made it.

4. Overally, the court a quo erred in law in ordering reinstatement or payment of damages in lieu of reinstatement in the circumstances.

The appellant's grounds of appeal raise two issues for determination by this court:

1. Whether or not the respondent committed an act of misconduct; and, if he did

2. Whether dismissal was the appropriate sentence.

Whether the respondent committed an act of misconduct

It is common cause that the appellant and its employees had a protracted dispute over outstanding wages and other grievances. This was discussed at National Council meetings held on 2, 11 and 15 July 2014 which the respondent attended in his capacity as the National Chairman of the Workers' Committee. At the meeting of 2 July, members of the workers' committee indicated that if the company remained adamant they were going to force it to pay the 2013 salary increase. At the 11 July meeting, members of the workers' committee complained about Management's failure to give them permission to meet workers. Management then granted the Northern Division's workers' committee enough time to go and meet the workers before they met again on 15 July. At the 15 July meeting, members of the workers' committee questioned the legality of sending workers on unpaid leave and threatened to approach the courts. The respondent, as the National Chairman of the worker's committee, subsequently referred the matter to Wintertons, Legal Practitioners.

That is the basis of the charges preferred against him.

There was, in my view, ample evidence that workers had genuine grievances which the appellant was not dealing with, with the seriousness they deserved.

The determinant issue in this case is whether or not the respondent committed an act of misconduct.

Counsel for the appellant said he did. The respondent said he did not. The court a quo agreed with the respondent. It on pages 3 to 4 of its cyclostyled judgment said:

“In casu, when it was apparent that there was no solution to the grievance by the Chief Executive, the matter was not referred to the NECTOI but to external lawyers, Wintertons, for it to engage Respondent. By a letter dated 30^th July, the legal practitioner engaged Respondent and indicated its intention to take legal action if the grievance is not resolved.

Filed of record are minutes dated 18^th July 2014 of a feedback meeting held on 11^th July 2014 in which the employees of both Khami and Kelvin Depots made the proposal to engage a private lawyer to solve their grievances. In view of this, did appellant require a petition or the signature of each and every employee to have the matter referred to lawyers?

I do not think so.

In terms of section 24 of the Labour Act [Chapter 28:01] a Workers' Committee, to which appellant was the Chairperson, has a right to represent employees in any matter affecting their rights and interests.

In view of the above, in the exercise of his mandate as Chairperson, it was not untoward for appellant to have the matter referred to some lawyers for them to handle it on behalf of the employees. I did not hear respondent argue that the Code prohibits this.”

The court a quo held that the respondent, as the National Chairman of the Workers' Committee, had authority to represent workers as provided by section 24(1)(a) of the Labour Act [Chapter 28:01] which states as follows:

“(1) A workers' committee shall –

(a) Subject to this Act, represent the employees concerned in any matter affecting their rights and interests; and

(b) Subject to subsection (3), be entitled to negotiate with the employer concerned a collective bargaining agreement relating to the terms and conditions of employment of the employees concerned; and

(d) Where a works council is or is to be constituted at any workplace, elect some of its members to represent employees on the works council.”

Section 24(1)(a) of the Labour Act [Chapter 28:01] mandates the workers' committee to represent employees in any matter affecting their rights and interests. That authority is given by the law and cannot be disputed.

I therefore agree with the court a quo that the respondent did not need a petition or signatures of each employee for him to represent them or to refer their grievances to legal practitioners. What was necessary was a mere indication by the majority of workers that the dispute be referred to legal practitioners. It is not in dispute that the respondent had such indication.

The allegation that the respondent had a meeting with 813 employees without Management's authority ignores the fact that there exists the Kelvin and Khami depots which report to him. There is no evidence that he personally met the 813 employees. What is clear on the record is that he received the views and wishes of the employees and used his mandate in terms of section 24(1)(a) of the Labour Act [Chapter 28:01].

If depots held meetings without approval, that would not be misconduct by the respondent.

At the meeting held on 11 July 2014, Management authorised the Northern Division's workers' committee to go and meet workers before the meeting which was scheduled for 15 July 2014. This proves that that meeting was authorised. At the meeting of 15 July, the workers threatened to approach the courts. This was a collective decision of the workers on the strength of which the respondent engaged legal practitioners.

In view of the provisions of section 24(1)(a) of the Labour Act [Chapter 28:01], the respondent did not need the signatures of employees to refer the case to legal practitioners. At the hearing of this appeal, counsel for the appellant agreed that the referral of a dispute to legal practitioners is not an act of misconduct. He conceded that workers have a constitutional right to be represented by a legal practitioner.

The concession was properly made. It is supported by the alleged offence not being on the list and definitions of offences in Annexure 1 of the Code of Conduct S.I.67 of 2012 and by the provisions of section 69(4) of the Constitution.

The acts of misconduct which can be committed under the Code (S.I.67 of 2012) are listed and defined in Annexure 1 of the Code. The Annexure does not include the offence of not following the laid down procedure or of engaging the services of a legal practitioner.

The respondent was therefore charged with an act which does not constitute an offence under the Code of Conduct.

Failure to follow the procedure under H.7(a) and (b) was not made an offence under the Code. H.7, which falls under Miscellaneous provisions provides as follows:

“In every case where the issue concerns a collective grievance, the following procedures shall apply -

(a) The Union or Workers Committee shall raise the issue as if they were the complainant's, and to be discussed at Works Council;

(b) If the decision of the Chief Executive does not resolve the issue satisfactorily, the matter shall be referred to NECTOI.”

These provisions do not, on their own, create an act of misconduct but merely spells out the procedure to be followed. H.7(a) reaffirms the mandate of the workers' committee to represent workers as provided by section 24(1)(a) of the Labour Act [Chapter 28:01]. H.7(b) provides for the procedure to be followed if the Chief Executive Officer fails to resolve the issue satisfactorily.

If the legal practitioners had carried out their threat to institute legal proceedings, and had not followed the procedure laid down in H.7, the failure could have been responded to by an objection based on failure to follow the laid down procedure and insistence that the correct procedure be followed. It is common cause that no litigation was instituted. It was merely threatened. The legal practitioners merely engaged the appellant.

Section 69(4) of the Constitution provides as follows:

“(4) Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”

The meaning of the word 'forum' is wide enough to include representation by a legal practitioner in engaging one's employer over non-payment of wages and other grievances. The Oxford Advanced Learners Dictionary defines 'forum' as “a place where people can exchange opinions and ideas on a particular issue; a meeting organised for this purpose.”

It thus can be representation at a meeting with the employer.

The legal practitioner certainly could represent the workers at tribunals and courts if the dispute was to progress that far.

The legal practitioner engaged the appellant on behalf of the workers. The discussions over the grievance therefore remained between the appellant and the workers - now represented by a legal practitioner. It cannot therefore be said that the respondent failed to follow the established grievance procedure. The dispute was still within the appellant's company though the workers were now speaking to it through a legal practitioner. The workers are entitled to engage the services of a legal practitioner. The appellant should have engaged them through their legal practitioners.

The charge preferred against the respondent alleges that he “instituted legal proceedings against the company as evidenced by a letter from your lawyers.”

That is not correct.

The letter from Wintertons, in relevant part, reads as follows:

“Pursuant to the above, we have been instructed to demand, as we hereby do, that you effect all payments due and owing to our clients within 7 days of your receipt of this letter failing which legal proceedings shall be instituted without further notice to yourselves. We hope you will comply with our clients' demand to avoid litigation in a matter that can be resolved amicably.”

It is clear that legal proceedings were not instituted but were threatened. It is also clear that the legal practitioners were addressing the appellant about the workers' grievances. They were therefore negotiating with the appellant on behalf of the workers in the hope of an amicable settlement as clearly stated in their letter. The discussion was to remain inhouse unless the appellant refused to comply with the workers' demand through their legal practitioners. The case could have been taken to the next stage by either party.

The court a quo commented on referrals to NECTOI an abbreviation for the (National Employment Council for The Transport Operating Industry) as follows:

“The Code provides that the matter be referred to NECTOI for a decision. The Code does not state who should or should not refer the matter to NECTOI.”

Either party is entitled to refer the dispute to the National Employment Council for The Transport Operating Industry. The employees were entitled to do so on their own or through their legal practitioner. That stage was not reached so nothing turns on the referral.

The misconduct was premised on the respondent's engagement of legal practitioners and sending a list with persons the appellant says could not have authorised him to refer the case to legal practitioners as they were late or had left employment.

Nothing turns on that too because the respondent got his mandate to represent the workers from his being the National Chairman of the appellant's workers' committees. Once his status is established, the law gives him the mandate to represent the workers - it is therefore of no consequence that former employees were included.

It seems to me that the respondent was merely presenting the list of employees whose grievances the legal practitioners had to represent. The letter from Wintertons includes grievances of non-payment of salaries for 2009 and 2010. That issue affects employees who died or left the appellant's employment after 2009 and 2010. If he erred by presenting a list with persons who were no longer the appellant's employees it is an error of including persons who were no longer interested parties if they had been paid their dues - not one of not being given a mandate by the majority of the employees.

The court a quo concluded with an apt observation regarding the issue of whether or not the respondent was guilty of misconduct by saying:

“The principle of Freedom of Association stipulates that:

'No person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities…,..'

See paragraph 748 of Freedom of Association - Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO 4^th Edition.”

The court a quo took the view that the respondent was wrongfully dismissed for referring the dispute to legal practitioners in his capacity as the representative of the appellant's workers.

I agree with that finding.

The evidence on record does not prove that he leaked the dispute to the press which seems to have irked the appellant. The appellant did not charge him for leaking the dispute to the press. It charged him for not following internal procedures which is not an offence under the applicable Code of Conduct. The court a quo correctly found that he followed the correct procedure but with the assistance of legal practitioners - at the instance of the workers.

This finding resolves what could have been the second issue. Once an employee is not guilty of misconduct he cannot be punished. Therefore, the issue of the appropriate punishment does not arise.

The appeal is dismissed with costs.

HH08-15 : JOHN MAKARUDZE and MAXWELL MUNONDO vs COSMOS BUNGU and THE EXECUTIVE COMMITTEE, HARARE MUNICIPAL WORKERS' UNION and THE HARARE MUNICIPAL WORKERS' UNION
Ruled By: MAFUSIRE J

The Constitution for the third defendant, Harare Municipal Workers Union (hereafter referred to as “the Union”), was registered with the then Industrial Registrar in 1962. It listed eleven objects. The first of these was to regulate the relations between members and their employers, and to protect and further the interests of members in relation to ...

The Constitution for the third defendant, Harare Municipal Workers Union (hereafter referred to as “the Union”), was registered with the then Industrial Registrar in 1962. It listed eleven objects. The first of these was to regulate the relations between members and their employers, and to protect and further the interests of members in relation to their employers. The membership clause was couched as follows:

“5. MEMBERSHIP

Membership of the Union shall be open to employees in Salisbury Municipality Undertaking who are employed in the occupations listed in the schedules 'A' and 'B'.”

Schedule 'A' had cashiers, health aides, constables, telephone attendants, messengers, assistant projectionists, welfare assistants and cooks. Schedule 'B' had labourers.

In terms of that Constitution, the second defendant, the Executive Committee of the Harare Municipal Workers Union (hereafter referred to as “Excom”) would constitute the governing body of the Union. The members of Excom would be elected at the Annual General Meeting and would serve for one year. They would be eligible for re-election. They could be removed from office on the decision of a General Meeting. General Meetings would be held once every three months. There were other ways in which members of the Executive Committee of the Harare Municipal Workers Union could vacate office. These were:

(i) Resignation.

(ii) Suspension.

(iii) Expulsion from the Union.

(iv) Absenteeism.

At all relevant times, the plaintiffs and the first defendant were all members of the Harare Municipal Workers Union. The first defendant was the Chairman of the Executive Committee of the Harare Municipal Workers Union. The first plaintiff was the Vice-Chairman. The second plaintiff was Chairman of one of the sub-committees of the Union. On 10 May 2011, the plaintiffs issued out a summons against the first defendant, the Executive Committee of the Harare Municipal Workers Union and Harare Municipal Workers Union. Apart from costs, they sought three declaratory orders and one directive. The three declaratory orders were these:

(a) That the Executive Committee of the Harare Municipal Workers Union's term of office had expired.

(b) That the 'seats' in the Executive Committee of the Harare Municipal Workers Union had become vacant.

(c) That the first defendant had “legally ceased” to be a member of the Harare Municipal Workers Union and was no longer entitled to hold any office in it.

The directive was this:

(d) That the Harare Municipal Workers Union had to hold elections for the Executive Committee of the Harare Municipal Workers Union within forty five days of the date of the court order.

The basis for seeking a declaratur that the Executive Committee of the Harare Municipal Workers Union's term of office had expired and that the 'seats' in it had become vacant was that it and the first defendant had been elected way back in February 2006 and yet neither any other elective General Meeting nor the triennial meetings had ever been held since then.

The basis for seeking the declaratur that the first defendant had 'legally ceased' to be a member of the Harare Municipal Workers Union, and that he was no longer eligible to hold any office in it, was that he had been dismissed from the employment of the Harare City Council, the employer, (hereafter referred to as “Council”). The plaintiffs' argument on that point was that membership of the Union was open to Council employees only. It was common cause that following the judgment of an independent arbitrator on 24 June 2012, the first defendant had been dismissed from Harare City Council's employment for absenteeism with effect from 2010.

The defendants contested the plaintiff's claims. Their defence was both on technical and substantive grounds. The first technical ground was that the plaintiffs, being mere members of the Union, had no locus standi to bring the action. In addition, the defendants contended that the plaintiffs themselves had been expelled from the membership of the Union. On this, the defendants relied on the first defendant's two letters to the plaintiffs, both dated 31 May 2011. He had signed them as 'Executive Chairman.'

The second technical ground relied upon by the defendants was that the plaintiffs had not exhausted their domestic remedies and that this court had no jurisdiction to entertain their case in such circumstances.

The full argument on this was that the election of members of the Executive Committee of the Harare Municipal Workers Union and their removal from office was something governed by the Constitution. Among other things, the defendants argued, the plaintiffs could themselves have motivated the calling and holding of the elective General Meetings and moved motions to remove from office those members of the Executive Committee of the Harare Municipal Workers Union whose terms of office would have expired. Having failed or neglected to do so, the plaintiffs were non-suited before this court.

With regards to the expiry of the Executive Committee of the Harare Municipal Workers Union's term of office, the declaration of vacancies, and the directive to hold elections within forty five days, the defendants' substantive defence on the merits was that there had been an elective General Meeting in 2012. A new Executive Committee of the Harare Municipal Workers Union had been incepted. The first defendant had been elected Executive Chairman. Therefore, the remedies sought by the plaintiffs in that regard had fallen away.

With regards the order that the first defendant had “legally ceased” to be a member of the Harare Municipal Workers Union and was no longer eligible to hold any office in it by reason of his dismissal from employment, the defendants' substantive defence on the merits was three-pronged;

(i) Firstly, they contended that the first defendant was appealing against that dismissal.

It seems that the first defendant had appealed to the Labour Court against the arbitrator's decision. But the Labour Court had dismissed that appeal. He had then filed an application for leave to appeal to the Supreme Court. At the time of the hearing before me that application was still pending. The first defendant's argument, though, was that an appeal to the Supreme Court against a decision of the Labour Court automatically suspends that decision. As such, the Labour Court's upholding of the arbitrator's decision ordering his dismissal from employment stood suspended. Therefore, he could continue in office with the Harare Municipal Workers Union.

(ii) Secondly, the defendants contended that a new Constitution of the Harare Municipal Workers Union had been registered in December 2013. It had amended the old Constitution in several ways. On membership, the new Constitution had opened up membership, not only to all employees, as before, but also to “…, any other person…,” who wished to abide by the requirements of the Constitution. The material portion of the new clause on that point read as follows:

“5. MEMBERSHIP AND THE ROLE OF MEMBERS

(a) Membership of the Union shall be open to all employees from Grade 5 to Grade 16 in Harare Municipal Undertaking who wish to abide by the requirements of this Constitution and conditions of membership other than Executive employees and any other person who wishes to abide by the requirements of this Constitution other than Executive employees who should be prepared to abide by this Constitution and the rules and conditions of membership.

(b) For the avoidance of doubt, membership of the Union being a fundamental Constitutional right to freedom of association, no employer or his/her agent shall interfere or question any individual's membership of the Union. The determination of membership shall be at the absolute and sole prerogative of the Union through its Executive Committee in terms of the HMWU Constitution.”

(iii) Thirdly, the defendants argued that in terms of the new Constitution, the position of Chairman of the Executive Committee of the Harare Municipal Workers Union had been turned into an Executive, full-time, and salaried one. The incumbent would be in charge of the day-to-day management of the Union. It was argued that it did not require that the incumbent be a member of the Union.

The plaintiffs denied that they had been expelled from the Union. They dismissed the first defendant's letters aforesaid. They said they had not been called to any hearing to answer any charges.

The plaintiffs argued that the new Constitution was not relevant to their case. The purported election of the first defendant as Executive Chairman was a nullity. Among other things, it had been done before the new Constitution had become operational. The new Constitution did not operate retrospectively.

Regarding the first defendant's alleged appeal to the Supreme Court and the argument that the Labour Court's decision had automatically been suspended, the plaintiffs challenged the defendants to produce the evidence of such an appeal.

They contended that an application for leave to appeal was not an appeal. Therefore, there had been no suspension of the Labour Court's decision by the mere application for leave.

Regarding the new Constitution allegedly opening up membership of the Harare Municipal Workers Union, not only to all employees of Harare City Council, but also to “…, any other person…,” who wished to abide by its requirements, the plaintiffs argued that this had to be read in context. The Harare Municipal Workers Union was a trade union to advance the interests of Harare City Council employees. Trade unions were governed by the Labour Act [Chapter 28:01]. Only employees in a particular undertaking could form, register, and become members of a trade union, not “…, any other person…,.”

Regarding the position of the Executive Chairman being a full-time and salaried office that did not require the incumbent to be a member of the Union first, let alone to be an employee of Council, the plaintiffs dismissed the defendants' contention as one that would lead to untold absurdities. Trade unions cannot be run by persons that are neither members nor employees of the undertaking to which the employees and the employers belong.

In a nutshell, that was the case before me.

The action had been referred to court as a Special Case in terms of Order 29 of the Rules of this Court. The issues, as agreed upon at the pre-trial conference, had been condensed to three, namely:

(a) Whether the High Court had jurisdiction to entertain the plaintiffs' action;

(b) Whether the plaintiffs had the locus standi to institute the proceedings; and

(c) Whether the first defendant was still eligible to be a member of the Harare Municipal Workers Union after his dismissal from employment.

I propose to deal with the question of plaintiffs' locus standi first. If they did not have the requisite locus standi in judicio to bring these proceedings, then that will be the end of their case….,.

Having disposed of their two technical objections in favour of the plaintiffs, I now deal with the defendants' substantive defence on the merits; namely, that the first defendant had not “legally ceased” to be a member of the Harare Municipal Workers Union, in that;

(i) Firstly, the new Constitution had opened up membership of the Harare Municipal Workers Union, not only to employees of Harare City Council, but also to “…, any other person…,” who wished to abide by it; and

(ii) Secondly, that, at any rate, the first defendant had appealed to the Supreme Court against his dismissal from employment and that such dismissal stood suspended.

3. That first defendant had 'legally ceased' to be a member of the Union by reason of his dismissal from employment

(i) That membership of the Harare Municipal Workers Union was open to “…, any other person…,.”

Just like employment codes of conduct, governing statutes of private bodies, such as the Constitution of the Harare Municipal Workers Union in casu, have to be interpreted sensibly. Furthermore, regard must be had to the provisions of the governing statute, in this case, the Labour Act (hereafter referred to as “the Act”).

In terms of the Labour Act, it is a fundamental right of an employee to be a member or an officer of a trade union. Specifically, section 4(1) of the Labour Act reads:

“4 Employees' entitlement to membership of trade unions and workers' committees

(1) Notwithstanding anything contained in any other enactment, every employee shall, as between himself and his employer, have the following rights -

(a) The right…, to be a member or an officer of a trade union;

(b)…,.

(c)…,.

(d)…,.

(2) Every employee shall have the right to be a member of a trade union which is registered for the undertaking or industry in which he is employed if he complies with the conditions of membership.”…,.

Sections 27 and 50 of the Labour Act provide for the rights of employees to form trade unions. Section 54 empowers a trade union to receive an employee's trade union dues directly from the employer. Thus, the scheme of the Labour Act is such that a trade union is an organisation for employees, not for just “…, any other person.”

The Harare Municipal Workers Union was a trade union. Therefore, that “…, any other person…,” who is not an employee can become a member of a trade union in a particular undertaking is a concept alien to trade unionism. It was also the same concept in both the old and the new Constitution of the Harare Municipal Workers Union. Membership was open to all employees in those grades as specified.

It is noted that in terms of section 28 of the Labour Act, every trade union is required to adopt a written Constitution and that such Constitution must provide for, among other things, the right of “…, any person…,” to membership if he is prepared to abide by the rules and conditions of membership.

Presumably, it is such wording as was adopted in the new Constitution of the Harare Municipal Workers Union. However, the reference to “…, any person…,” in section 28(1)(b)(ii) of the Labour Act is, in my view, a reference to any person as employed in that undertaking or industry. To open up membership of a trade union in a particular undertaking to “…, any other person…,” who may not be employed by some employer in that undertaking or industry, as the defendants contended, would lead to monstrous absurdities. For example, what would stop an air hostess employed by some airline anywhere in the world, or even some vagabond somewhere, coming forward to become a member of the Harare Municipal Workers Union, and even taking up positions in the Executive Committee of the Harare Municipal Workers Union, for as long as they wished to abide by the conditions of the Constitution?

Counsel for the defendants said the Executive Committee of the Harare Municipal Workers Union vets any prospective member and screens unqualified aspirants.

But using what qualifying criterion other than the fact of employment by Harare CityCouncil?

It could not have been the intention of the Legislature, in section 28 of the Labour Act, or the drafters of the Constitution of the Harare Municipal Workers Union, to open up membership of a trade union to all manner of people who may not be employed in the particular undertaking to which the trade union was formed.

The first defendant argued that the position of Executive Chairman, to which he was appointed, was a salaried one that did not require him to be a member of the Harare Municipal Workers Union.

However, that argument was fallacious.The position of Executive Chairman was created by the new Constitution. That Constitution was only registered in December 2013. Yet the first defendant's purported appointment had been in 2012.

It was a nullity.

At any rate, holistically, the scheme of both the Labour Act and the old Constitution of the Harare Municipal Workers Union, in general, but clause 10 in particular, was such that members of the Executive Committee of the Harare Municipal Workers Union were elected, not appointed, from the generality of the membership of the Harare Municipal Workers Union at an elective General Meeting. The Executive Committee of the Harare Municipal Workers Union consisted of the Chairman, his or her vice, and six members. Among other things, and as I highlighted at the beginning, a member whose subscriptions were three months in arrears, or was on suspension, would be ineligible to be elected a member of the Executive Committee of the Harare Municipal Workers Union. It would be such an anomaly that an important, influential, and central position, such as that of Chairman, could be occupied by an alien, who, among other things, would be naturally immune to all the disabilities that members might suffer from, such as, for example, ineligibility due to a failure or inability to pay subscriptions, or ineligibility due to suspension.

In the circumstances, I find that despite the seemingly open endedness of the Constitution of the Harare Municipal Workers Union, membership was restricted to employees of Harare CityCouncil. It follows that if the first defendant had been dismissed from Harare City Council employment, he lost the right to keep his membership, let alone to become an office bearer in the Executive Committee of the Harare Municipal Workers Union, unless he had been conferred with honorary membership in terms of clause 5(k) of the new Constitution - in which event he would have no right to hold office or to vote….,.

1….,.

2….,.

3. The first defendant is not eligible to be a substantive member of the Harare Municipal Workers' Union, let alone to be elected or appointed to any position in it.

4. The costs of this action shall be borne by the first and second defendants, jointly and severally.

SC43-18 : ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) vs KASIKAI MASHONGANYIKA
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

Section 92 of the Labour Act [Chapter 28:01] (“the Act”) provides as follows: “A party to a matter before the Labour Court may appear in person or be represented by: (a) A legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07]; (b) An official or employee of a registered trade union or employer's organization of which the party is a ...

HB151-16 : CHRISTOPER MABHUNU vs THE COMMISSIONER GENERAL OF POLICE
Ruled By: MAKONESE J

Under section 69(4) of the Constitution of Zimbabwe Amendment (No.20) 2013, the applicant's right to a fair hearing is asserted in the following terms: “Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.” The question of legal representation was considered in the following cases:- Dladla ...

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

This matter raises issues that have been canvassed in such cases as Benson Samudzimu v Dairibord Holdings (Pvt) Ltd HH204-10; Sibangilizwe Dhlodhlo v Deputy Sheriff of Marondera & Ors HH76-11; Ericson Mvududu v Agricultural and Development Authority HH286-11; and Gaylord Baudi v Kenmark Builders (Pvt) Ltd HH04-12.

In the present matter, the Works Council, consisting of management and workers committee members of the respondent met on 6 June 2011. Present as observers were also two representatives of the National Education Union of Zimbabwe. The Collective Bargaining Agreement reached was, inter alia, to pay a proportion of the money set aside for housing and car purchasing loans as housing allowance. This aspect of the agreement was not implemented.

The matter was referred to conciliation and arbitration in terms of section 93 the Labour Act [Chapter 28:01].

On 15 November 2011, an arbitrator appointed in terms of the Labour Act made an arbitral award directing the Works Council to convene, within 10 days of the order, and agree on appropriation of a proportion of US$420,000 Housing Loan Fund as housing allowance failing which they were to reset the matter before him for quantification.

In the arbitration proceedings, the present applicant was the claimant and the present respondent was the respondent.

The parties did not meet.

The respondent appealed the order while the applicant applied for quantification. The applicant set out a Statement of Claim amounting to US$397,381=80 duly divided amongst the applicant by grade. On 12 January 2012, after considering the written submissions of the parties, the arbitrator granted the applicants relief in terms of its Statement of Claim.

On 20 February 2012, the applicant applied to this court, in terms of section 92B(3) as read with 98(14) of the Labour Act, for the registration of the quantification of 12 January 2012 and costs of suit.

The application was opposed on 29 February 2012.

The respondent raised a number of preliminary issues.

(i) The first was that the applicant was not a legal persona and could not register a judgment in that name.

(ii) It also averred that the Workers Committee that authorised the deponent to its founding affidavit was not a legal persona and thus lacked legal standing to authorize registration of the award.

(iii) It further averred that the award in the record was not the original or a certified copy of the original order as contemplated by Article 35(2) of the Arbitration Act [Chapter 7:15].

(iv) Lastly, it averred that the award was appealed against both before quantification and after quantification in LC/H/28/12.

On the merits, the respondent contended that it was against public policy of Zimbabwe to award an amount calculated by non-managerial employees, which was no longer available, and would cause a huge financial loss.

The answering affidavit dealt with the preliminary points on locus standi and disputed inability to pay averring that the Works Council agreed on the utilization of the Housing Loan Fund that was available.

The arbitrator noted their availability on the date of the Collective Bargaining Agreement and refused to reward the respondent for attempting to deliberately place them beyond the reach of the Works Council after the Collective Bargaining Agreement had been reached.

It seems to me that the present application flounders on the rock of the first preliminary issue raised.

The question of legal persona of a workers committee was conclusively dealt with by the Supreme Court in CT Bolts (Pvt) Ltd v Workers Committee SC16-12.

In that case, GARWE JA, with the concurrence of ORMEJEE and GOWORA AAJA, surveyed the provisions section 23 and 24 of the Labour Act that provide for the institution and functions of a workers committee. He noted that the Labour Act did not make provision for the workers committee to operate as a legal persona. It had not provided for the adoption of a Constitution or acquisition of assets by the workers committee in contrast to section 28 and 29 of the Labour Act that instituted every trade union, employer's organisation or federation into a corporate body on registration.

The learned Judge of Appeal confirmed the correctness of the sentiments expressed by KAMOCHA J in CSC Co. National Workers Committee v CSC Co. Ltd 2002 (1) ZLR 133 (H)…, that “the legislature did not give the workers committee the right to sue or to be sued like it did to the employment council.”

He stated at page 2 of the judgment that:

“The issue of the legal status of the respondent assumes greater significance in a case as this one where there could be issues of costs involved. Under the common law, an unincorporated association, not being a legal persona, cannot, as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons.

A universitas, on the other hand, has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligations. The position is also established that a body corporate that has no Constitution is not a universitas for it is the Constitution that determines whether an association is or is not a universitas.”

See also Privatisation Agency of Zimbabwe & Anor v Ukubambana Kubatana Investments (Pvt) Ltd & Anor 2003 (1) ZLR 433 (S)…, on the four constituent elements of a universitas.

At page 3, GARWE JA held that:

“The respondent, not being a legal persona, is not properly before this Court. The proceedings before the Labour Court, and, prior to that, the arbitrator, were similarly void.”

It is conceded, in the answering affidavit, by the deponent to the founding affidavit, that the citation of the applicant as ZIMSEC EMPLOYEES was wrong. The deponent averred, and counsel for the applicant contended, that the citation was a technicality that had been dismissed by the arbitrator on the basis of the 147 names and signatures on page 45 to 48 of the record of proceedings who constituted a portion of 245 employees who comprise the applicant.

The basis for the citation of the applicant before the arbitrator, and in the present application, in this format was based on convenience.

The citation of a Workers Committee as a party in proceedings is replete in our jurisdiction. It is found in such cases as Thomas Meikles Centre (Pvt) Ltd v TM National Workers Committee & Ors SC77-02; Olivine Industries (Pvt) Ltd v Olivine Workers Committee 2002 (2) ZLR 200 (S); and Sagittarian (Pvt) Ltd v Workers Committee, Sagittarian (Pvt) Ltd 2006 (1) ZLR 115 (S).

At page 3 of CT Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA was aware that the Supreme Court had in those cases “proceeded on the basis that the workers committee cited in the appeal proceedings was properly before it and that the issue of the legal status of the workers committee had not, however, been raised, and, consequently a determination of the legal status of the workers committee never became necessary.”

It is apparent from the concessions made by the deponent to the applicant's affidavit, and from its counsel, that ZIMSEC EMPLOYEES is not a universitas. It was a convenient appellation of 245 employees in Grade 2 to 8 of the first respondent. The list of names and signatures fall short of an affidavit of collegiality as defined and applied by BERE J in Mabvadya v Chegutu Rural District Council & Ors HH34-05…, and SMITH J in Olive Mazvita Gudza v University of Zimbabwe HH85-95.

The applicant is not a juristic person. It thus lacked capacity to represent the 245 employees before the arbitrator and this Court. It is not properly before this court. Its proceedings in that name before the arbitrator, and before this Court, are void.

On the basis of the above finding, it is not necessary to determine the other preliminary issues raised and the merits of the application. As the applicant is not a juristic person, an order that there be no order of costs would meet the justice of this case.

Accordingly, the proceedings are struck off the roll with no order as to costs.

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court, which upheld the decision of the Appeals Board of the National Employment Council Banking ("NEC") to the effect that the charge preferred against the respondent was inappropriate and that he had been unfairly dismissed.FACTUAL BACKGROUNDThe respondent was employed ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as an Administrative Clerk and was also the chairperson of the workers committee. The management of the appellant and the workers' committee had been in a dispute over salary increments of the employees for some time. In August 2010, the dispute was referred to a conciliator, who, in September 2010, issued a Certificate of No Settlement.

Thereafter, between 8 and 15 September 2010, the respondent sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees' salaries. He also stated that the workers' committee had decided to embark on a collective job action to press their interests. The emails were sent through the appellant's IT facility to more than ten recipients at a time.

On 23 September 2010, the respondent was charged with misconduct for contravening section 11(1) of S.I.273 of 2000 (“the Code"), it being alleged that he had acted in a manner which was inconsistent with the fulfilment of the express or implied conditions of his contract.

The basis of the charge was that the respondent had generated offensive emails to a group of staff members against the Bank's standing policy contained in its Information Security Management Policy Document (“IT Policy Document”), particularly sections 4.4 and 4.4.1.

It was also alleged that the contents of the emails were inflammatory and contained confidential information. Further, that the responses that the e-mails generated from staff members who received them ended up congesting the network, thus, interrupting normal business communication in the Bank.

A disciplinary hearing was held in October 2010.

The respondent was found guilty of the misconduct with which he was charged and dismissed from his employment. He appealed to the Grievance and Disciplinary Committee whose proceedings ended in a deadlock. The matter was then referred to a second Grievance and Disciplinary Committee which also ended in a stalemate.

Thereafter, the matter was placed before the National Employment Council Banking Appeals Board, which held that the conduct complained of did not constitute an offence in terms of the charge that had been preferred against the respondent. Accordingly, it held that the charge preferred against the respondent was inappropriate. It stated, further, that although the respondent exceeded the limit of the number of emails allowed by the respondent's IT Policy Document, thereby breaching the appellant's standing policy, the e-mails were neither inflammatory nor offensive, and that no confidentiality had been breached.

It also stressed that the respondent's conduct was in pursuit of a right to represent workers and that the emails were meant to call for collective job action, or, at least, put pressure on the appellant to accede to the workers' wage demands. Consequently, the National Employment Council Banking (NEC) Appeals Board ordered that the respondent be reinstated to his former employment without loss of salary or benefits.

Significantly, it did not order an alternative of damages in lieu of reinstatement in terms of section 89(2)(c) of the Labour Act [Chapter 28:01].

Aggrieved by the decision of the National Employment Council Banking (NEC) Appeals Board, the appellant appealed to the Labour Court. It averred that the Appeals Board erred in failing to find that a Category D offence had been committed, that the penalty of dismissal was appropriate in the circumstances, and that, alternatively, and in any event, it erred in failing to afford to the appellant any alternative to reinstatement.

Per contra, the respondent submitted that the appellant had failed to establish the conduct that allegedly constituted the offence in question. He also contended that the National Employment Council Banking (NEC) Appeals Board was not mandated to give an alternative for damages in lieu of reinstatement. Further, that it was not bound by section 89(2)(c) of the Labour Act because that provision only relates to the Labour Court in the exercise of its functions and not internal structures such as the National Employment Council Banking (NEC) Appeals Board.

The court a quo took the view that as the employees were considering going on strike over the wage dispute, the respondent acted within the bounds of his official duties as the chairman of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court however stated that although the respondent may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal.

Consequently, the appellant 's appeal was dismissed.

The appellant was aggrieved by the decision of the court a quo and appealed to this Court on the following grounds, viz:-

1. Having come to the conclusion that the respondent's conduct was in breach of the appellant's IT policy, in that he had sent emails to more than the maximum permissible number of recipients at a time, the court a quo erred in concluding that such conduct did not amount to a dismissable misconduct;

2. The court a quo erred in failing to appreciate that the respondent's conduct, in violating the standing regulation, was a breach of his privileges as the representative of the workers' committee and could therefore not be excused;

3. Having come to the faulty conclusion that the respondent was to be reinstated, the court a quo erred in not providing for an alternative of damages as is required under the statute.

I will now consider the grounds of appeal in light of the evidence before the court.

Whether the court a quo erred in concluding that the misconduct, of sending emails to more than the maximum permissible number of recipients at a time, did not amount to dismissable misconduct

It is pertinent, in order to determine this issue, to consider the charges preferred against the respondent.

He was charged with contravening section 11(1) of S.I. 273/2000, namely:

"Any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract where such is not provided for under Category 'A', 'B' or 'C'."

The particulars of the charge were stated as follows:-

"Between 8 and 15 September 2010, you generated some offensive emails to a group of staff members against the Bank's standing policy on Information Security Management Policy document section 4.4 and 4.4.1. Besides the contents of the email being inflammatory and confidential, the responses you asked from staff members ended up congesting the network affecting normal business communication in the process."

The first ground of appeal addresses the finding of the National Employment Council Banking (NEC) Appeals Board, expressed thus in its judgment:-

"The Appellant obviously exceeded the limit of number of recipients allowed by the bank IT policy. The limit was 10 people per email."

This finding was upheld by the Labour Court which described the respondent's conduct in this respect as amounting to him having "gone overboard by breaching (the) Respondent's standing policy."

Counsel for the appellant took the view that having found that the respondent exceeded the maximum number of 10 emails at a go, the National Employment Council Banking (NEC) Appeals Board, and the court a quo, erred in not finding him guilty.

Counsel for the respondent, on the other hand, submitted that the particulars of the charge did not speak to exceeding the permitted number of e-mails to be sent at a time. Accordingly, he contends further, the respondent could not have been found guilty of a charge that had not been preferred against him.

In response, it was the appellant's submission that charges are crafted by lay persons and not lawyers. To this end, he contended that the respondent ought not to be spared a conviction on the basis of what was in effect a technicality, given that labour matters generally ought not to be determined on the basis of technicalities.

I am persuaded by the respondent's submissions.

He clearly was not charged with violating any standing policy forbidding the dispatch of more than 10 emails at a time using the appellant's server. As correctly contended for him, the appellant's IT Policy Document specifically provides for this infraction in its clause 4.4.5.

A closer look at the relevant portions of the clauses which the respondent was accused of breaching, that is 4.4 and 4.4.1 is instructive.

Clause 4.4 proscribes the accessing or distribution of inappropriate or offensive material which may harm the reputation of ZB Financial Holdings Ltd "both internally and externally.”

Clause 4.4.1 underlines the fact that its communications systems are for business purposes only, and states that any employee found abusing such facilities would be subjected to disciplinary action in accordance with the applicable Code of Conduct.

These provisions, and the charges based on their alleged violation by the respondent, clearly do not speak to the specific issue of dispatching more than 10 emails at a time.

While it may conceivably be argued that sending more than 10 e-mails at a time amounts to abuse of the appellant's electronic communication system, the fact that the latter saw it fit to remove this particular conduct from the ambit of abuse in general, in my view, evinces the intention to keep the two offences separate and distinct.

Clearly, therefore, the National Employment Council Banking (NEC) Appeals Board determined this aspect of the dispute on the basis of a matter not properly before it.

The respondent could not be found guilty of sending an email to more than 10 people at a time as that was not the charge that had been preferred against him, nor did it form the particulars of the charge the respondent was called upon to answer.

This finding stands notwithstanding that the respondent may, and appears to have, indeed acted contrary to the instruction as provided under 4.4.5 of the Information Security Policy.

That, however, was not the charge that he was facing. It was therefore not open to the National Employment Council Banking (NEC) Appeals Board to substitute the charge put to the respondent with another charge.

The National Employment Council Banking (NEC) Appeals Board therefore misdirected itself.

In its turn, the Labour Court, by upholding the same finding by the Appeals Board, also fell into error.

The law is clear, that, it is not open to the court or a tribunal to substitute a charge laid against an employee with another one and proceed to make a determination based thereon.

There is authority that places this type of action outside the realm of what may be termed a technicality on the basis of which a labour matter should not be determined.

The remarks of the learned judge in Zimasco (Pvt) Ltd v Chizema 07-SC-038-2007 (2) ZLR 314 (S) (SC38-07) are apposite.

In that case, the court had occasion to deal with the question as to whether the failure by the court to alter a charge amounted to deciding the matter on a legal technicality.

It held as follows at para 10 and at 317A-C;

"It should be noted that it clearly was not the responsibility of the Labour Court to 'amend the charge sheet' in this matter by substituting the charge preferred against the Respondent with another one. The court is not there to formulate charges or cases for litigants. In cases of this nature the court's brief is to determine, on the basis of evidence placed before it, whether or not a case has been proved against the Respondent."…,.

The same point was stressed in Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd 13-SC-031 (SC31-13)…, and 2019 (2) ZLR 10 (S) where the court stated as follows…,:-

"It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged.

The reason for this is obvious, viz:

The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence. In this context, notwithstanding the provisions of section 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence. Any such action would constitute a blatant miscarriage of justice."…,.

The above remarks are instructive in this matter, and, by parity of reasoning, apply equally to a case where one is acquitted of an offence with which they were not charged.

The decision of the court a quo, that the appellant could not be dismissed for misconduct that in fact did not form the basis of the charge levelled against him, is, therefore, of no force or effect.

It follows from the foregoing that the appellant's first ground of appeal lacks merit on two fronts:

(i) Firstly, it seeks to sanitise the improper substitution by the court a quo of the charges that the appellant brought against the respondent with a new charge.

(ii) Secondly, the ground of appeal purports to impugn a decision of the court a quo, that, as I have determined, was improper and of no force or effect.

The first ground of appeal is accordingly dismissed.

Whether the court a quo erred in failing to appreciate that the Respondent's conduct, in violating the standing regulations, was a breach of his privileges as the representative of the Workers' Committee and could therefore not be excused

Counsel for the appellant correctly does not dispute that the respondent, as chairman of the Workers' Committee, had a right to champion the cause of the workers by, among other means, communicating with them through use of requisite media.

Nothing, therefore, turns on the respondent's citation of various statutory and Constitutional provisions that protect and emphasize the importance of workers' rights being championed by and through their chosen representatives.

Counsel for the appellant contends, however, that in exercising this entitlement, the respondent did not have the right to breach the law - in this case the standing policy in question.

There is merit in this contention.

The right to champion workers rights is, in my view, not exercised in a vacuum, as it were, but should be exercised within the confines of the law as dictated: in this case, by the relevant Code of Conduct. This would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained.

It falls to reason, therefore, that the respondent would not be able to hide behind his position as the chairperson of the workers' committee should the conduct alleged against him be proved.

In upholding the National Employment Council Banking (NEC) Appeal Board's ruling on this point, the court a quo took the view that the respondent did not abuse the appellant's facilities for personal gain but did so because he had a right, indeed a duty, to communicate to fellow employees the developments on the wage dispute. Accordingly, his actions, albeit violating standing instructions, did not merit the harsh penalty of dismissal.

The court found no fault with the respondent's use of the appellant's email facility, stating that he had, in the past, used the same medium of communication. Accordingly, in the court a quo's view, the respondent's conduct, as alleged, was proper.

The view taken by the court a quo does not find support in the law, however.

In Chidembo v Bindura Nickel Corporation 2015 (2) ZLR 25 (S), an employee who had disclosed confidential information sought to argue that although the information had been unlawfully obtained, the disclosure was lawful as he was the chairperson of the Workers Committee.

The court, in rejecting this submission, reasoned as follows…,:-

“The disclosure of confidential information, without the requisite authority of the employer, remained an unlawful act in terms of the Respondent's code.

The fact that the Appellant committed the misconduct while performing his role as the workers committee chairperson is of no moment. This is because his status as a workers' committee chairperson did not turn what was unlawful into a lawful act. It became unlawful the moment he disclosed the information without the authority of the Respondent.

An employer is perfectly within its right to put in place measures that will protect confidential and sensitive information relating to its employees and operations against unlawful disclosure. Employee salary scales fall into this category of information. Given that the Code of Conduct in casu expressly provides that it is only the employer who can authorise any disclosure by any employee of such information, the words of CHIDYAUSIKU CJ, in the case of Zimbabwe Electricity Supply Authority v Moses Mare 05-SC-043, SC43-05, are apposite:

'In my view, members of the Workers' Committee are not a law unto themselves…,. In defending the rights of the workers, a member of the workers committee is enjoined to observe due process.'"…,.

These remarks are, in my view, entirely apposite in casu.

The view taken by the court a quo, that a workers' committee member is at liberty to violate the employer's Code of Conduct as long as he does so in his exercise of the right to champion the workers rights, is clearly wrong and not sustainable at law.

What is to be determined next, therefore, is whether or not the respondent did violate the specified standing policies?

Further, whether if he did so, such conduct constituted the dismissible misconduct that he was charged with?

Earlier on in this judgment I paraphrased the import of relevant portions of the clauses which the respondent was accused of breaching.

Clause 4.4 of the IT Policy Document proscribes the accessing or distribution of inappropriate or offensive material which may harm the reputation of ZB Financial Holdings Ltd both internally and externally. Clause 4.4.1 stresses that the appellant's communications systems are for business purposes only, and, that abusing them was a punishable offense in accordance with the applicable Code of Conduct. Examples of such abuse are indicated in the clause as including, but not limited to, the transmission by email of information considered "highly confidential” such as confidential personal data of any member of staff; private business activities; and transmission of any such material that may be deemed offensive or abusive.

My reading of the letter setting out the acts or conduct that formed the basis of the misconduct charge levelled against the respondent, (set out above), is that these were:

(i) Firstly, the generation and dispatch, by him, to “a group of employees”, of emails that contained confidential material, in addition to being offensive and inflammatory.

While the considerable number of addressees of the e-mails is evident from the record, the appellant asserts, and is not challenged on it, that the recipients totalled 378.

(ii) Secondly, the appellant took issue with part of the content of such emails, which successfully solicited responses that ended up congesting the network and affected normal business communication within the Bank.

It is not disputed that the respondent sent the emails in question. Nor does the respondent deny that he did not seek the authority of the appellant before doing so. He in fact conceded as much during the disciplinary hearing.

The appellant charges that the emails, among other content, disclosed confidential information relating to the salaries earned by fellow employees.

The respondent however disputes that he sent information that could be classified as confidential since the table that he sent, filed on p170 of the record, did not specify the names of the senior staff managers who benefitted from defined levels of salary increments indicated in the table.

In any case, the respondent argues further in his heads of argument, the recipients of the information had a "legitimate interest in knowing the salary scales” pertaining at the appellant's business.

The court a quo was persuaded by the respondent's submissions and took the view that no evidence was placed before the court to substantiate this allegation. The appellant, on the other hand, contends that a glance at the table on p170 of the record would easily enable the recipients of the email concerned to identify the affected senior employees.

I am persuaded by the appellant's submissions in this respect.

It would not be unreasonable to assume, as the appellant contends, that the recipients of the information contained in the table in question would know who of the junior and senior managers fell into which grade and would therefore be earning the respective salaries specified therein.

The appellant submits, in this respect, correctly in my view, that the respondent could have made the point that certain increases had been effected, and even relied on the percentages quoted, without divulging the actual salaries of fellow employees.

Against this background, I find, contrary to the view taken by the court a quo, that the appellant did place before the court evidence substantiating the charge that the respondent abused its IT systems and disclosed confidential information relating to the salaries of certain employees, in violation of clause 4.4.1 of its IT Policy Document.

The appellant alleged that the emails generated by the respondent were considered by it to be, in addition, inflammatory and offensive. The court a quo opined that the particular e-mails or the exact phrases that were alleged to be offensive or inflammatory were not specified in the letter containing the charges. Further, that no evidence was placed before the court to substantiate these allegations.

The court's observations, in my view, cannot be faulted, particularly if regard is had to the respondent's accurate assertion that this particular matter has not been pursued by the appellant in this appeal.

I will, accordingly, give no further consideration to this charge.

The appellant, in its heads of argument, has not expanded on aspects of the charges relating to the alleged abuse by the respondent of the appellant's IT policy for private business nor has anything further been said about the alleged clogging of the appellant's electronic communication system.

Paragraph 4.4.1 of the policy document creates the special misconduct of abuse, by an employee, of its company-facilitated communication media and services. It further provides that any employee found abusing the services in question shall be subject to disciplinary action in accordance with the Code of Conduct. The misconduct is clearly characterised as one of commission.

I take the view that, in the circumstances at hand, there is a conceptual difference between doing an act that contravenes a laid down policy of the employer and failing to obey a standing instruction or order of the same employer.

I find, therefore, that the act with which the respondent was charged was not provided for under Categories 'A' 'B' or 'C' of the appellant's Code of Conduct.

What falls to be determined next is whether the conduct complained of was properly characterised as "serious” and inconsistent with the terms of the respondent's contract of employment.

In Wala v Freda Rebecca Gold Mine SC56-16, the court had occasion to define the terms "serious act of misconduct.” It stated as follows…,:-

“In Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S), McNALLY JA approved of the dictum by LORD JAMES of Hereford in the case of Clouston & Co Ltd v Corry [1906] AC 122 before going on, at 218H-219A, to say:

'I consider that the seriousness of the misconduct is to be measured by whether it is inconsistent with the fulfilment of the express or implied conditions of his contract. If it is, then it is serious enough, prima facie, to warrant summary dismissal. Then, it is up to the employee to show that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted.'

The seriousness of a misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the Appellant was found guilty of went to the root of the contract of employment, in that it had the effect of eroding the trust the employer reposed in him, as found by the arbitrator, could it still be said that the misconduct was trivial to warrant a penalty of dismissal?

The Appellant worked against company policy.

It is a serious act of misconduct for an employee to deliberately act against the employer's policies to advance personal interests."…,.

It is argued for the appellant –

(i) Firstly, that the conduct in question went to the root of the respondent's contract of employment, and, not least, because the respondent had breached a confidentiality arrangement that he had entered into with the appellant.

(ii) Secondly, it is argued that compliance with the IT policy of the appellant that the respondent breached was cast in peremptory terms. Accordingly, the policy had to be obeyed without reservation: see Messenger of the Magistrates' Court, Durban v Pillay 1952 (3) SA 678 (A).

I find that there is merit in the appellant's submissions.

The appellant proved that the respondent worked against company policy by abusing its company-facilitated communication media and services.

As properly highlighted in Chidembo v Bindura Nickel Corporation 2015 (2) ZLR 25 (S), an employer is perfectly within its right to put in place measures that will protect confidential and sensitive information relating to its employees and operations against unlawful disclosure.

Employee salary scales are confidential information and should not easily be disclosed.

The respondent therefore disclosed other employees' salaries through abuse of the appellant's communications media and services.

I find, accordingly, that this particular misconduct was both serious and inconsistent with the fulfilment of his contract of employment. The same misconduct also properly fell within Category 'D' of the appellant's Code of Conduct.

I will now consider the propriety of the penalty of dismissal that was imposed on the respondent.

The appellant argues, in this respect, that the decision to dismiss the respondent was properly reached on the basis that the appellant, as his employer, took a serious view of the misconduct in question. Further, that the appellant, in taking such a serious view of the misconduct, was not shown to have acted unreasonably.

Accordingly, there was no cause to interfere with the decision that flowed from the view taken by the appellant.

The appellant relies for this argument on the case of Circle Cement (Pvt) Ltd v Nyawasha 03-SC-060 (SC60-03) where the following is stated…,:-

"Once the employer had taken a serious view of the act of misconduct committed by the employee, to the extent that it considered it to be a repudiation of the contract which it accepted, by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee."…,.

The appellant argues, lastly, that the penalty of dismissal was competent since it was provided under, and in terms of the Code of Conduct.

I find merit in these submissions.

The respondent, as submitted for the appellant, abused its communications media and services in order to disclose, not just the salary scales of the junior and senior employees falling into the categories listed, but also the actual salaries awarded for each grade. This was in addition to an indication of the percentages by which the salaries of employees in the grades listed were raised.

As the appellant correctly contends, the respondent could have simply shown these percentages and not the actual salaries of the affected employees. There is therefore merit in the submission by the appellant that the respondent breached his privileges as a workers committee representative through conduct that violated the IT policy of the appellant.

Clearly, his being a workers' committee representative did not convert an unlawful act into a lawful one.

The respondent, in any case, has not shown that his misconduct, though technically inconsistent with the fulfilment of the conditions of his contract, was so trivial, so inadvertent, so aberrant, or otherwise so excusable, that the remedy of summary dismissal was not warranted: see Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S).

No basis has, accordingly, been established for interfering with the penalty of dismissal.

The appellant's second ground of appeal therefore has merit and is hereby upheld.

This finding renders the appellant's last ground of appeal irrelevant to the determination of this appeal.

DISPOSITION

In light of the foregoing, I find that the appeal has merit and ought to succeed.

In the result, it is ordered as follows:-

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:-

“(a) The appeal is allowed with costs;

(b) The Respondent shall stand dismissed from his employment with the Appellant with effect from 26 October 2010, the date of his initial dismissal."

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...

The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He was dismissed from employment for disclosing confidential information during conciliation proceedings. He challenged his dismissal on the basis that it was an unfair dismissal and noted an appeal to the Labour Court. The Labour Court dismissed the appeal on the main ground that the appellant did violate the respondent's Code of Conduct in that he did not follow the laid down procedures on the obtaining and disclosure of confidential information.

The appellant was aggrieved by the decision of the Labour Court and has approached this Court on the grounds summarised below;

1. The court a quo misdirected itself and erred at law entirely in not finding that the disciplinary procedures set down in the Code of Conduct of the respondent were not followed thereby rendering the dismissal both substantively and procedurally wrong.

2. The court a quo further erred in rejecting the appellant's defence that the disclosure of the company information was not in breach of section 3(4) of Schedule 1 of the Employment Code of Conduct for the respondent as read with Part C 10.2.

3. The court a quo erred and misdirected itself at law in finding that the appellant was not unfairly dismissed....,.

Whether the appellant's conduct violated the respondent's Code of Conduct

The appellant was charged with un-authorised disclosure of company secrets as outlined in section 3.4 Schedule 1(12) as read with Part C 10.2 of the respondent's Code of Conduct. The relevant part of the Code reads as follows:

“Information with respect to any confidential product, plan or business transaction of the Group, or personal information regarding employees, including their salaries, or any business information must not be disclosed by any employee unless and until proper authorisation for such disclosure has been obtained.”…,.

It is not in dispute that in the course of conciliation proceedings attended by both employer (respondent in casu) and employee representatives, a request was made to the appellant who was present as the workers' committee chairman, for a list, if he had it, of employees affected by alleged salary anomalies. The appellant duly submitted the list - except that it showed employees salaries, in addition to their names.

The respondent alleged as follows in respect of how the appellant secured this confidential information (see respondent's heads of argument in the Labour Court):

“It is common cause that salaries information was downloaded by one S. Mamina and sent by e-mail to one W. Muyenza, who, in turn, emailed it to the appellant. Equipped with this information, the appellant did not simply email it to the next colleague: instead, he changed the label of the file and instructed it to be printed.” (sic)….,.

The resultant print-out is what the appellant disclosed before the conciliation proceedings, leading to the charges in question.

The appellant does not deny disclosing the information in question. Nor does he deny that he did so without any authority.

His defence was that the information in question “was disclosed during a lawful conciliation hearing and in the appellant's capacity as a worker representative, not as an employee…,: this was done as a bona fide step to prove the worker's case. It was not an act done in the normal course and scope of the contract of employment of the appellant.” (paragraphs 2 and 7 of the appellant's heads of argument).

The appellant further contends that since the disclosure of the list in question was “clearly” done in the pursuit of employees' interest, it was lawful. He relies for this contention on the following excerpt taken from MUNYARADZI GWISAI's “Labour and Employment Law in Zimbabwe”…,:

“In circumstances involving trade unions or workers committee, the duty of confidentiality on employees not to divulge confidential information has to be read with the workers' fundamental right to democracy at the workplace under section 7 and to conduct workers committee or trade union business in terms of sections 4 and 8 of the Labour Act. Divulsion of information in one capacity as a worker representative and within the pursuit of lawful objects of such organisations or giving information to such organisation in the pursuit of lawfully pursuing an employees interest, is not in breach of such duty.”

The distinction between confidential information required by an individual worker and that required by a worker's representative is, in my view, a useful and indeed critical one.

However, I entertain some doubt concerning the above excerpt's correctness when it suggests that such divulsion of information would nevertheless be lawful - even if it is done in blatant violation of an express provision of the Code of Conduct.

In fact, it would appear that a worker representative has a greater opportunity of lawfully accessing confidential information than an ordinary employee, by, for example, formally discovering such information at negotiating fora or requesting adjudicating bodies to order the production of such information. This to be compared, for instance, with section 5 of the Income Tax Act [Chapter 23:06] which allows tax department employees, who have sworn an oath of secrecy regarding tax matters, to break such oath where they are ordered by a competent court to disclose the required information.

Where confidential information is unreasonably withheld, a worker representative may invoke unfair labour practice provisions in the Labour Act.

Ultimately, employees are better advised to negotiate for easier access to information provisions in employment codes of conduct than to blatantly violate the law as is implicit in the excerpt cited above.

The respondent, in its heads of argument, in my view, correctly counters this excerpt by stating thus:

“The disclosure of the information in violation of section 3.4 of Schedule 1 of the Code as read with section 10.2 of Part C of the Code is permissible subject to the appellant seeking authority from the employer to do so…,. If such authority was sought, but, nonetheless unreasonably withheld, appellant might have been justified to access the information as he did and proceed to disclose it anyway within the spirit of the labour law jurisprudence emoted by the learned author.”

The appellant's position seems to be that even though the information was obtained by him unlawfully from the workplace, through use of the employer's resources, and in his capacity as a worker, the disclosure that followed was lawful. He justifies this on the basis that by then he had shed his “worker” mantle, and, figuratively, replaced it with that of “chairman of the workers committee.”

In other words, it was perfectly in order for him to use his status as a worker in order to access confidential information that he fully knew he would disclose as a worker's committee chairman.

I find this reasoning to be flawed in two main respects:

(i) First and foremost, the appellant was an employee of the respondent, to whom, at all times, he bore the duty of trust and loyalty. His conduct in relation to the respondent was regulated and governed by the requisite Code of Conduct, in this case S.I.379 of 1990.

As correctly averred by the respondent, the appellant remained accountable to his employer irrespective of the position he assumed as the worker's committee chairman.

(ii) Secondly, I am satisfied that an act of misconduct committed by a worker outside the workplace, and, in his also work-related capacity as a workers' committee member, is unlawful as long as it impacts directly on the employer's private interests, and, in addition, constitutes a violation of the employer's Code of Conduct.

This Court has effectively ruled as much in cases where workers committee members, purporting to advance or protect workers' rights, have engaged in unlawful job actions: see in this respect, Shadreck Moyo & 13 Others v Central African Batteries (Pvt) Ltd v Boniface Mwonzora, 23 Ors SC09-09.

The workers found that their status, as workers committee members, did not clothe them with a cloak of immunity against misconduct charges.

The central issue being the fact that if the conduct in question is outlawed under the Code of Conduct, it remains unlawful irrespective of the “hat” that the offending worker may be wearing at the time the misconduct is committed.

Likewise in casu.

The disclosure of confidential information, without the requisite authority of the employer, remained an unlawful act in terms of the respondent's Code. The fact that the appellant committed the misconduct while performing this role as the worker's committee chairperson is of no moment. This is because his status, as a workers committee chairperson, did not turn what was unlawful into a lawful act. It became unlawful the moment he disclosed the information without the authority of the respondent.

An employer is perfectly within its right to put in place measures that will protect confidential and sensitive information, relating to its employees and operations, against unlawful disclosure.

Employee salary scales fall into this category of information.

Given that the Code of Conduct in casu expressly provides that it is only the employer who can authorise any disclosure by any employee of such information, the words of CHIDYAUSIKU CJ, in the case of Zimbabwe Electricity Supply Authority v Moses Mare SC43-05, are apposite;

“In my view, members of the Workers Committee are not a law unto themselves…,. In defending the rights of the workers, a member of the workers committee is enjoined to observe due process.”

The appellant not only failed to follow the “due process” that would have allowed him to lawfully disclose the information in question, he openly expressed disdain for such process by stating as follows (honography notes in the Labour Court…,.):

“I did not do wrong…,. I did not need to get any authorisation from anywhere.”

His case might have been different had he sought, and been denied, the requisite authorization.

The respondent, I find, is correct in its contention that these assertions were a direct infringement of the provisions of section 10.2 of Part C of the Code of Conduct, and also misplaced in view of the sentiments in Zimbabwe Electricity Supply Authority v Moses Mare SC43-05 cited above.

In view of all that has been said above, I find that the respondent (and the Labour Court in upholding the decision) properly charged, convicted, and dismissed the appellant.

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

This is an appeal from a judgment of the Labour Court upholding a decision of an arbitrator setting aside the dismissal of the appellant's employees who had been found guilty of an act or conduct inconsistent with the fulfilment of express or implied conditions of contracts of employment in that they had taken part in an unlawful collective job action.

The appellant's employees were members of the respondent. They engaged in an unlawful collective job action from 4 to 23 October 2006. It is common cause that at the time the employees engaged in the collective job action, on 4 October 2006, they had not given the fourteen days written notice of their intent to resort to such action on that day. They had not satisfied the other matters required under section 104(2) of the Labour Relations Act [Chapter 28:01] (“the Act”).

After the unlawful collective job action ended, the appellant commenced disciplinary proceedings against each employee who had taken part in the collective job action.

On 8 December 2006, the employees were individually charged with conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in the unlawful collective job action. The allegation was that the employees had contravened section 12B(2)(b)(1) of the Labour Relations Act [Chapter 28:01].

The disciplinary hearings were conducted in terms of section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 (“the Regulations”).

The employees were found guilty of the misconduct charge and dismissed from employment.

The respondent took up the case of the dismissal of the employees with a Labour Officer on the ground that the dismissal constituted an unfair labour practice.

The contention was that the appellant should not have charged the employees individually with conduct they committed collectively as a group. The argument was that disciplinary proceedings ought to have been commenced against the employees as a group on the ground that they took part in an unlawful collective job action in terms of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The appellant accepted that the employees had taken part in an unlawful collective job action. It denied the accusation that, in instituting disciplinary proceedings against each employee on the charge that he had committed an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment in that he had taken part in an unlawful collective job action, it committed an unfair labour practice.

The argument was that there was no provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee for having taken part in an unlawful collective job action can only do so in disciplinary proceedings commenced against the employees who took part in such action as a group.

The Labour Officer failed to conciliate the dispute and referred the case for arbitration in terms of section 93(5) of the Labour Relations Act [Chapter 28:01].

The arbitrator heard the case and determined that the appellant ought to have proceeded in terms of sections 106 and 107 of the Labour Relations Act and charged the employees as a group with having taken part in an unlawful collective job action. The dismissal of the employees was adjudged an unfair labour practice. It was set aside and an order of reinstatement or payment of damages in lieu thereof made.

On appeal to the Labour Court, the decision of the arbitrator was upheld hence the appeal to this Court.

The question that falls for determination is whether there is a provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee who took part in an unlawful collective job action must institute disciplinary proceedings against all the employees involved in such action and charge them with having taken part in an unlawful collective job action.

The contention that the appellant ought to have charged the employees, as a group, with having taken part in an unlawful collective job action and proceeded in terms of the provisions of Part XIII of the Labour Relations Act was based on the interpretation of section 8 of Category 4 of the appellant's employment Code (“the Code”).

A list of what is considered to be serious acts of misconduct is given under Category 4 of the Code. In section 8 the following is stated:

“8. Instigating and/or taking part in an unlawful job action – to be handled in terms of Labour Relations Act [Cap. 28:01].”

There is, of course, no specific reference to Part XIII of the Labour Relations Act in section 8 of Category 4 of the Code.

Even if the appellant had decided to charge the employees with having taken part in an unlawful collective job action there would have been nothing in the provisions of section 8 compelling it to conduct the disciplinary proceedings in terms of the provisions of Part XIII of the Labour Relations Act.

Part XIII of the Labour Relations Act is headed “Collective Job Action”. It contains sections 102 to 112, the provisions of which deal with matters relating to or arising from a collective job action.

The sections said to contain the provisions which the appellant was found to have unlawfully failed to observe are sections 104, 106 and 107.

Section 104(1) gives all employees, workers committees, and trade unions the right to resort to collective job action to resolve disputes of interest. The right is given subject to specific conditions of its exercise prescribed under subsection (2).

A collective job action resorted to without the mandatory requirements for a lawful exercise of the right prescribed under sub-section (2) of section 104 having been strictly satisfied is an unlawful collective job action.

Specific procedures and remedies for the protection of the rights for the parties affected by the unlawful collective job action are provided under sections 106 and 107.

Section 106 provides that when a workers' committee or trade union, for example, “threatens, recommends, encourages, incites, organizes or engages” in an unlawful collective job action, the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective job action, may issue an order calling upon the workers' committee or trade union concerned (“the responsible person”) to appear before the Labour Court to show cause why a Disposal Order should not be made in relation to the unlawful collective job action.

The Show Cause Order must specify the date, time and place at which the responsible person must appear before the Labour Court. The order may direct that pending the issuance of the Disposal Order, the unlawful collective job action concerned be terminated, postponed, or suspended.

Section 107 provides that on the return day, the Labour Court must inquire into the matter, and may, after the inquiry, issue a Disposal Order directing that the unlawful collective job action be terminated, postponed, or suspended….,.

Section 107(3) provides that the Disposal Order may provide for the employer, in his discretion, to dismiss, summarily, specified employees or categories of employees engaged in the unlawful collective job action or provide for the dismissal of specified employees or categories of employees engaged in the unlawful collective job action.

The inquiry the Labour Court is required to carry out before issuing a Disposal Order, as well as the right it may give to the employer to dismiss employees found to be threatening or engaging in an unlawful collective job action, implies that the Show Cause Order may take the place of a charge of misconduct in disciplinary proceedings and the inquiry the hearing thereof.

The disciplinary action which the Labour Court may order or may authorize the employer to take against the employees is not the primary object of the provisions of sections 106 and 107 of the Labour Relations Act. The primary purpose of the provisions of sections 106 and 107 is to provide procedures and remedies for the disposal of an unlawful collective job action.

The right given to an employer, under section 107(3) of the Labour Relations Act, to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action, is dependent upon the discretionary remedies. It is up to the Labour Court to decide whether to provide, under the Disposal Order, for the dismissal of specified employees or categories of employees. It is also up to the Labour Court to decide whether to give the employer, under the Disposal Order, the right to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action.

The right to dismiss is dependent upon the exercise of discretion by the Labour Court.

Without the initiation of the procedure leading to the issuance of the Disposal Order, and the exercise of discretion by the Labour Court in his favour, an employer would have no right to dismiss employees who threaten or engage in an unlawful collective job action in terms of any of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The procedure and remedies under sections 106 and 107 of the Labour Relations Act, are, in my view, applicable to the disposal of an unlawful collective job action being threatened or engaged in at the time the Show Cause Order is made.

There is nothing in the language of the relevant provisions of the Labour Relations Act to show that the intention of the legislature is that the procedure and remedies prescribed thereunder be applied to an unlawful collective job action which has ended on its own without a Disposal Order having been issued in respect of it.

One can hardly think of such action which ceased on its own being made a subject of a Show Cause Order or Disposal Order directing that it be terminated, postponed, or suspended.

The unlawful collective job action engaged in by the appellant's employees ended on 23 October 2006 - without a Show Cause Order having been issued in terms of section 106 of the Labour Relations Act.

The disciplinary proceedings against the employees commenced on 8 December.

The provisions of sections 106 and 107 of the Labour Relations Act were clearly not applicable to the determination of the appellant's right to dismiss the employees concerned.

Where then did the appellant derive the right to dismiss the employees?

The appellant did not charge the employees with having taken part in the unlawful collective job action. It charged each employee with an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in an unlawful collective job action.

The charge was in terms of section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 which recognize the common law right of an employer to charge an employee with such conduct.

Section 12B of the Labour Relations Act provides that:

“(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) If, in the absence of an employment code, the employer fails to show that when dismissing the employee he had good cause to believe that the employee was guilty of –

(i) Any act, conduct, or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(ii)…,.”

Subsection (3) of section 12B of the Labour Relations Act [Chapter 28:01] makes provision for cases of constructive dismissal.

Section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 provides that:

“(2) For the avoidance of doubt, it is declared that no employer shall summarily or otherwise terminate a contract of employment with an employee unless –

(a) The termination is in terms of an employment code which is registered in terms of section 101 of the Act; or

(b)…,.; or

(c)…,; or

(d) The employee is dismissed on any of the grounds specified in para (b) of section 12B of the Act.”

The employment Code did not have a section prohibiting, as an act of misconduct, an act or conduct inconsistent with the fulfilment of the express or implied conditions of the employee's contract of employment.

For an employer to have good cause to believe that an employee is guilty of the act or conduct specified in section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] he has to charge the employee with having committed that act or conduct, give him an opportunity to answer the charge, hold a disciplinary hearing, and make a finding of facts on which he believes the employee is guilty as charged.

The contention advanced by counsel for the respondent was not that participating in an unlawful collective job action was wrongly found to be an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of each employee charged with that act of misconduct.

I agree with counsel for the appellant, that, taking part in an unlawful collective job action could not be a valid defence to the charge preferred against each of the employees.

The act of misconduct alleged against each employee in the charge was proved following a full hearing of evidence. At the time the employer dismissed each employee it had good cause to believe that he was guilty of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

The appellant had the right, under section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01], as read with section 2 of the of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003, to dismiss the employees.

Counsel for the appellant relied on the case of Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05.

Net-One, like the appellant, is a successor company to the Posts and Telecommunications Corporation. It was using the same employment Code as the appellant at the time its employees embarked on an unlawful collective job action. The employees in the Net-One case were charged, individually, with having been absent from work for a period of five or more working days without leave or reasonable cause. The employment Code had section 2 of Category 4 which made it an offence for an employee to be absent from work for a period of five or more working days without reasonable cause. In charging the employees, Net-One cited section 12B(2)(b)(v) of the Labour Relations Act. A full disciplinary hearing was conducted, at the end of which each employee was found guilty as charged and dismissed from employment.

It was contended, on appeal, that, in charging the employees under section 12B(2)(b)(v) of the Labour Relations Act, and not section 2 of the Code, Net-One had committed an unfair labour practice.

At p8 of the cyclostyled judgment, CHIDYAUSIKU CJ said that participating in an illegal collective job action could not have been a defence to the charge faced by the employees. He went on to say the following:

“The appellant charged the employees, individually, with absence from work for five consecutive days without reasonable excuse or cause.

I pause to point out that the employees were not charged with taking part in or inciting an unlawful collective job action, a charge that falls squarely under clause 8 of the Code. The employees were charged with absence from work for more than five consecutive days an offence under clause 2 of the Code and section 12B of the Act.

Disciplinary hearings were conducted in respect of each individual employee.

At the conclusion of the disciplinary hearing each of the fifty-six employees was found guilty and dismissed. It was not in dispute that due process was followed in respect of each of the employees. In this regard, the appellant, however, purported to act in terms of section 12B of the Act as read with Statutory Instrument 130/2003.”

The learned Chief Justice held that in citing section 12B(2)(b)(v) of the Labour Relations Act instead of clause 2 of the Code in charging the employees, Net-One was not guilty of unfair labour practice as due process was nonetheless followed in the dismissal of the employees.

The unlawful collective job action in which the employees in Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05 had taken part had ended without a Show Cause Order having been made in terms of section 106 of the Labour Relations Act at the time disciplinary proceedings were commenced against individual employees.

The case supports the contention that the provisions of Part XIII of the Labour Relations Act [Chapter 28:01] do not, in the circumstances, preclude an employer wishing to take disciplinary action against employees who took part in an unlawful collective job action from charging them individually with acts of misconduct connected with or arising from the collective job action.

In this case, the offence of an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment could be established in respect of each employee by proving that he took part in an unlawful collective job action.

There was no similar offence under the employment Code.

As the unlawful collective job action had ended at the time disciplinary proceedings were commenced, the appellant could not have acted in terms of any of the provisions of Part XIII of the Labour Relations Act.

The appellant derived the right to dismiss the employees from the disciplinary proceedings it conducted in terms of section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003.

The appeal succeeds with costs.

The judgment of the court a quo is set aside and substituted with the following order -

“The appeal against the decision of the arbitrator succeeds with costs. The decision is set aside.”

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

On the date set for its hearing, the said appeal was postponed sine die by the Supreme Court. The postponement was apparently due to issues that arose regarding the citation and/or representation of the parties, which issues were to be sorted out during the period of the postponement. The issues apparently arose due to misunderstandings that developed between the applicants and the second respondent.

The applicants thus instituted the instant application with the anticipation that their success in this application will enable their participation, in their individual capacities, in the appeal in SC570/14, which appeal is expected to be re-set down for hearing after the determination of this application.

SUBMISSIONS IN CHAMBERS BY THE APPLICANTS

Counsel for the applicants moved for the granting of the order sought on a number of bases:

He submitted, that, the applicants are the individuals whose contracts were summarily varied and that it is these same contracts that have been the subject matter of the dispute since 2012. He submitted, that, contrary to what the first respondent contended in its opposing papers, this is not an application for joinder but one for substitution of the second respondent by the applicants. He further submitted, that, whilst the workers' committee has no legal persona and therefore cannot represent workers, a trade union can do so as it has statutory ability to represent workers. He also submitted, that, in any event, as the appeal by the first respondent in SC570/14 deals with a procedural and not a substantive issue, there could be no prejudice to the respondents.

Counsel for the applicants went on to submit, that, in any event, if the applicants are successful in SC570/14, the matter will be remitted to the Labour Court where the first respondent can make another complaint about or raise the issue of the representation of the parties, if they so wish.

Furthermore, that the cause of action or justification for this application was the fact, that, the relationship between the applicants and the second respondent had become discordant.

He submitted, that, the applicants' position is that if there are other employees (former employees) who want to continue to be represented by the second respondent they may continue to be so represented, but they (the 34) now want to ventilate their cause without the second respondent.

It was also counsel for the applicant's submission, that, the second respondent has always acted in a representative capacity and did not at any time supplicate for its own rights. There has thus never been any confusion as to who the parties were.

He submitted that section 29(4)(d) of the Labour Act put to rest the question whether or not the applicants (and others) in their collective complaint, could be represented by the second respondent.

Counsel for the applicants also submitted, that, the application is not one for joinder as it does not seek the joining of a party who was not a party before. It is rather the “unpacking” of the real respondents in that matter that is sought.

There has not been any dispute, he submitted, that these 34 applicants had their contracts unilaterally varied or that they are former employees of the first respondent. They cannot, therefore, be said not to have sufficient interest in the matter.

The applicants want the opportunity to respond to the first respondent's appeal in which it is appealing against the striking off of their appeal in the Labour Court.

In the applicants' view, the first respondent has adopted the wrong procedure by appealing against the striking off of their appeal by the Labour Court.

It was also his further submission, that, the applicants want to be substituted because they were already part of the proceedings but they now want to extricate themselves from the one who was representing them.

The substitution, he submitted, is in terms of the common law, and, section 85 of the High Court Rules, referred to by the respondent, does not and cannot apply. He cited Zimbank Ltd & Anor v Consolidated Piping & Fitting 2000 (1) ZLR 672…, as the guideline in the determination of this application.

RESPONDENT'S SUBMISSIONS

In response, counsel for the first respondent made submissions to the following effect:

From an examination of the draft order sought, it is clear, that, what is being sought is not substitution but joinder. The High Court Rules relating to substitution must therefore come into play as the Supreme Court Rules do not provide for such an application.

Rules 85 and 85A of the High Court Rules ought to apply to the instant application.

An examination of the stated Rules will show, that, the application is defective as the order sought does not provide for the removal of a party and the replacement thereof with another, but, instead, seeks joinder of the applicants to the parties already cited in SC570/14.

The application is vague and embarrassing and bad at law and ought to be dismissed. The case of Trop v SA Bank 1992 (3) SA 208…, was cited in support of the submission.

It was also submitted, that, in terms of sections 29 and 30 of the Labour Act, a trade union has the ability and capacity to represent its members in legal proceedings.

However, that must be distinguished from being a party to the proceedings. The sections do not provide that a trade union becomes party in proceedings in which they represent their members.

In addition, the parties who appeared before the Labour Officer for conciliation are the same parties cited in SC570/14 and the applicants were not cited as parties thereto.

It was also submitted, that, as the applicants were not parties in pertinent proceedings before the Labour Officer, the arbitrator, the Labour Court, and, finally, the Supreme Court where an appeal is pending, it does not make sense for them to now, at this stage, seek to be made parties to the litigation.

Counsel for the first respondent further highlighted, that, when the first respondent raised the issue of the second respondent's locus standi before the arbitrator no action was taken to have the applicants joined at that stage, yet, the applicants now want to be parties to an appeal whose origin was birthed in those proceedings.

Neither the arbitrator's award nor the Labour Court judgement cite or speak of the applicants.

He submitted, that, the law does not countenance this as this would be tantamount to allowing them to enter the proceedings through the back door.

Counsel for the first respondent quoted remarks, though obiter, made in TelOne (Pvt) Ltd Communications & Allied Services Workers Union 2006 (2) ZLR 136…, where CHIDYAUSIKU CJ stated:

“…,. Mr Hwacha's contention is that a party that was not privy to the original proceedings cannot apply for the review of such proceedings. I recognise the cogency of this submission. The proposition that only parties to the proceedings can challenge, on review or appeal, the outcome of such proceedings admits of little doubt.”

He submitted, that, applied in reverse, quoted remarks buttress his argument.

He described the applicants' quest as an “ambush” of the point of law that had been raised by the first respondent in the earlier proceedings. He prayed for the dismissal of the application.

WHAT IS THE NATURE OF THIS APPLICATION?

The applicants have labelled it an application for substitution. The respondents, on the other hand, argue, that, it is in effect an application for joinder.

The Concise Oxford English Dictionary of Current English 7ed, 1982 provides the following, amongst others, definition for the word 'substitute':

“(person or thing) acting in place of another; make (person or thing) fill a place or discharge a function for or for another; put in exchange (for).”

For 'joinder' it provides:

“joining, union.”

The import of paragraph 2 of the order sought is, that, while the second respondent remains, as is the case already, a respondent in SC570/14, the applicants are also made additional respondents.

The effect of the order, if granted, would be to alter the numbering order, with the previously lone respondent becoming the first respondent while the applicants become the second to the 35th respondents.

Thus, the applicants do not seek to substitute the second respondent. Rather, they wish to be added as co-respondents. There is no removal of one party and replacement with another, as should happen in a substitution.

On the face of it, this is a clear case in which joinder, and not substitution, is being sought.

On the other hand, counsel for the applicants repeated and categorical submission, in which he maintained that the relief sought by the applicants in not joinder but substitution, is contradictory of the terms of the order that is being sought before me.

For that reason, the applicants' papers do not seek to meet the requirements of an application for joinder and they do not do so. In the same breath, the effect of the terms of the order sought is in effect a joinder and not substitution.

In these circumstances, the aptness of counsel for the first respondent's citation of the case of Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, becomes self-evident. Importantly, the Appeal Court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

Counsel for the first respondent's submission, that, at the arbitration proceedings, the first respondent raised the issue of the second respondent's locus standi but no action was taken then to have the applicants joined at that stage, was not disputed by counsel for the applicants.

Counsel for the applicants submission, in response, was merely, that, the applicants were only praying for an order to be granted in their favour only in relation to the appeal in SC540/14 and not to any other case.

This stance, in my view, tends to lend credence to counsel for the first respondent's argument, that, the applicants seem to want to want to circumvent a legal point earlier raised by seeking to now individually enter the fray at this stage.

This court, not being a court of first instance, is not the proper forum for such an application.

In any event, for reasons discussed above, the applicants seek to participate in the appeal in SC570/14 by way of an application that defies a specific description recognised at law.

The nature of the application before me is unascertainable by reason of the pleadings filed being vague and embarrassing.

THE LAW

The aptness of the case of Tel One (Pvt) Ltd v Communications & Allied Services Workers' Union 2006 (2) ZLR 136 (S)…, also cited by counsel for the first respondent, comes to the fore.

As a party who was not privy to the original proceedings cannot appeal against or challenge, on review, those earlier proceedings, it is only logical that a party who was not privy to the original proceedings cannot become a party to the appeal emanating from those proceedings in the manner sought by the applicants.

In casu, the second respondent substituted itself for the applicants and other employees entirely. It did not cite itself in a representative capacity. There was no reference at all to the applicants and the other employees. This is so despite the fact, that, the rights that may accrue when the fairness or otherwise of their dismissals is finally determined would affect them individually.

The effect of the non-citation or the lack of reference to the applicants is that the award by the arbitrator ordered that there be negotiations between the employer and the Trade Union in circumstances where the contracts to be entered into would be between the employer and the individual employees.

This is an untenable result. I daresay it is an incompetent order.

It is trite, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgement of the court, such party should be cited: see Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15…,.

It is also trite, that, a judgment may not be made affecting a person or entity that was not a party to the proceedings: see Mashingaidze v Chipunza & Ors HH688-15; Women & Law in Southern Africa Research & Education Trust v Shongwe & Others HH202-03.

The application in casu is bad at law. It is vague and embarrassing.

In addition, on the facts of this matter, whether it be an application for substitution or for joinder, this court is not the proper forum before which to make it. It cannot therefore succeed.

It is accordingly ordered as follows:-

“The application is dismissed with costs.”

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

The fact that the Zimbabwe Flight Crew Association (the Association) might have influenced the salaries of its members does not necessarily make them a party to the individual employment contracts between the defendant and the association's members or the plaintiffs.

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

FACTUAL BACKGROUND

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

PROCEEDINGS IN THE COURT A QUO

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement....,.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation....,.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits....,.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

SC107-21 : METALLON GOLD ZIMBABWE (PVT) LTD and OTHERS vs SHATIRWA INVESTMENTS (PVT) LTD and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE and MASTER OF THE HIGH COURT and REGISTRAR OF COMPANIES
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

This is an appeal against the decision of the High Court (“the court a quo”) which placed the first (Metallon Gold Zimbabwe (Pvt) Ltd), the second (Goldfields of Shamva (Pvt) Ltd) and the third (Goldfields of Mazowe (Pvt) Ltd) appellants under corporate rescue proceedings in terms of section 124(1)(a) of the Insolvency Act [Chapter 6:07] (“the Insolvency Act”).

The judgment of the High Court dealt with two separate applications, numbers HC2619/19 and HC2696/19, which were consolidated for the purposes of hearing them.

The Court holds, that, the respondents did not comply with the mandatory provisions of section 124 of the Insolvency Act, which required them to notify each affected party of the application by standard notice.

The respondents failed to notify each affected party by “standard notice” as is prescribed by section 2 of the Insolvency Act.

Such non-compliance with peremptory provisions of the Insolvency Act rendered the application for corporate rescue fatally defective.

This Court finds, that, the second respondent (Associated Mine Workers Union of Zimbabwe), being the only respondent before this Court, had no locus standi to make the application for corporate rescue as it does not meet the definition of “affected person” in terms of section 120 of the Insolvency Act [Chapter 6:07].

The second respondent is a registered trade union representing employees in the mining industry and not a registered trade union representing employees of the company as envisaged by section 120 as read with section 124 of the Insolvency Act.

Further, the second respondent (Associated Mine Workers Union of Zimbabwe) fails to meet the criteria of a creditor, as the judgment it relied upon is not against the first appellant but against a different party.

It bears mentioning, that, the first respondent was in default at the hearing of the appeal as it realised it could not possibly defend the judgement of the court a quo.

FACTUAL BACKGROUND

The first respondent (Shatirwa Investments (Pvt) Ltd) (being a creditor of the appellant companies) and the second respondent (Associated Mine Workers Union of Zimbabwe) (being a registered trade union in the mining industry) sought an order in the court a quo that the appellants (Metallon Gold Zimbabwe (Pvt) Ltd, Goldfields of Shamva (Pvt) Ltd, Goldfields of Mazowe (Pvt) Ltd) and Mazowe Mining Company (Pvt) Ltd) be placed under corporate rescue in terms of section 124(1) of the Insolvency Act [Chapter 6:07].

They alleged, that, the appellants were failing to pay creditors and that it was very likely that the appellants would become insolvent within the immediately ensuing six months, making them worthy candidates for corporate rescue.

The first respondent, armed with an order against the appellants for US$6,394,232 issued in case HC6197/18, made the application for corporate rescue as an “affected person” being a creditor of the appellants, in terms of section 121(1)(a)(i) of the Insolvency Act.

The second respondent (Associated Mine Workers Union of Zimbabwe), in making its application, averred that it was an “affected person” in that it was a registered trade union in the industry.

The second respondent further stated, that, it also derived its locus standi from its status as a creditor of the second (Goldfields of Shamva (Pvt) Ltd) and the fourth (Mazowe Mining Company (Pvt) Ltd) appellants.

No judgment against the second and the fourth appellants was attached to the founding affidavit before the court a quo to support the claim of locus standi. It attached a copy of a judgment obtained against the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) but no claim was made against the first appellant in the court a quo on the basis of that judgement.

In defending the matter, the appellants raised a number of points in limine.

In case HC2619/19 the locus standi of the first respondent (Shatirwa Investments (Pvt) Ltd) was disputed, on the basis that its creditor status was compromised as the parties had entered into agreements for the settlement of the debt.

The first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) further raised the point, that, the first respondent had failed to comply with the requirements of section 124(2)(b) of the Insolvency Act requiring an applicant for a corporate rescue order to notify each affected person of the application by standard notice.

At the hearing of the applications, the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) raised the preliminary objection that the first respondent (Shatirwa Investments (Pvt) Ltd) did not serve the Master of the High Court and the Registrar of Deeds with the applications.

The first appellant argued, that, the Master of the High Court had to be served with the applications as he was required to provide a report.

Pertaining to case HC2696/19, the appellants raised the preliminary objection that the application was not served on the fourth appellant (Mazowe Mining Company (Pvt) Ltd).

They further argued, that, the second appellant (Goldfields of Shamva (Pvt) Ltd) was a non-existent entity as it had changed its name from Gold-Fields of Shamva (Pvt) Ltd to Shamva Mining Company (Pvt) Ltd.

The second respondent (Associated Mine Workers Union of Zimbabwe), however, filed a notice of withdrawal in relation to the second appellant.

The appellants also raised the point, that, the second respondent (Associated Mine Workers Union of Zimbabwe) did not comply with the peremptory statutory requirement to notify all “affected persons” as envisaged in section 124(2)(b) of the Insolvency Act.

Subsequent to the hearing of the consolidated applications, the appellants filed two applications, in terms of Rule 235 of the High Court Rules 1971, for leave to file a further affidavit.

The appellants intended to file an affidavit conveying to the court, that, they had managed to raise $39,129,459=03. The contention was that they were now in a position to settle their debts with their creditors and provide working capital to revive the operations of the mines.

The court a quo dismissed all the points in limine raised by the appellants.

The court a quo found, that, section 124(2)(b) of the Insolvency Act [Chapter 6:07] did not provide for the manner or form of notification of “affected persons.”

The court a quo found, that, the respondents had effected proper notice on the appellants by publication in a local newspaper. The court a quo held that such notification was sufficient compliance with the requirements of the statute in the absence of knowledge of all “affected persons.”

Regarding the issue of the failure to serve the Master of the High Court with the application, the court a quo relied on the principle that what is not denied is deemed to be accepted.

Therefore, since the appellants did not raise the issue of non-service in their notice of opposition, they were deemed to have accepted that the Master of the High Court was duly notified.

In relation to the merits of the matter, the court a quo took into consideration the supporting affidavit filed by the appellants in terms of Rule 235. The court found, that, the said affidavit corroborated the case for corporate rescue, as the position taken in the additional affidavit contradicted the positions taken in the opposing affidavits.

The court expressed the view, that, in case HC2619/19, the appellants admitted indebtedness to the first respondent, but, argued that they had entered into a settlement agreement, the consummation of which was being stalled by the delay in retrieving a mining lease. They further averred that they were not in financial distress so as to warrant corporate rescue as their assets exceeded liabilities.

The finding was that no evidence was produced to support the averments.

The court also found, that, the appellants had not been open and candid with the court as they had not disclosed their production plans, projections, estimates, and financial status. The finding was that it would be impossible for the court to project that the appellants positions, in both matters, could reasonably be expected to change for the better within six months.

The court further found, that, the appellants did not present evidence to show that they were not financially distressed. They failed to place information before the court from which it could determine that in the ensuing six months the companies would be able to pay off their debts. The court also found, that, no revival plans were placed before it.

Consequently, the court a quo granted the application for corporate rescue, setting out the corporate rescue practitioners to be engaged.

Aggrieved by the decision of the court a quo, the appellants noted the present appeal.

SUBMISSIONS BEFORE THE COURT

The appellants submissions

Counsel for the appellants submitted, that, there is a very specific procedure to be followed when commencing corporate rescue proceedings. He argued, that, the respondents failed to comply with section 124(2)(b) of the Insolvency Act [Chapter 6:07] which requires an applicant for corporate rescue to notify each “affected person” of the application by 'standard notice.'

He rightly stated, that, the court a quo erred in finding that neither the manner of notification nor the form or content of “standard notice” was defined in the Insolvency Act.

Counsel for the appellants argued, that, the court a quo erred in applying a purposive interpretation of the statute, when the ordinary grammatical meaning of the words was clear and unambiguous.

He further submitted, that, the respondents could not hide behind the assertion that they did not have information of all “affected persons” as they could have obtained such information from the appellants had they requested for it.

Counsel for the appellants contended, that, an assessment of whether or not a company is in financial distress can only be effectively conducted when the creditors of the company are known. Thus, he queried how the respondents could determine that the appellants were in financial distress without having obtained information of their debts and creditors.

He stated, that, the advertisement published by the respondents in a local paper could not possibly be deemed to have notified all “affected persons” as it was beyond the reach of foreign creditors.

Counsel for the appellants also submitted, that, the second respondent (Associated Mine Workers Union of Zimbabwe) had no locus standi to institute an application for corporate rescue.

He argued, that, in terms of the Insolvency Act, only an “affected person” could institute such proceedings.

He argued, that, the second respondent (Associated Mine Workers Union of Zimbabwe) was not a registered trade union representing the employees of the appellants, as prescribed by section 121(1)(a)(ii) of the Insolvency Act. It was a registered trade union in the mining industry.

Counsel for the appellants further argued, that, the second respondent could also not derive legal standing from the provisions of section 121(1)(a)(i) of the Insolvency Act as it was not a creditor of the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd).

He submitted, that, the court order from which the second respondent (Associated Mine Workers Union of Zimbabwe) claimed to derive locus standi was not against the first appellant but another company known as Metallon Gold.

Counsel for the appellants argued, that, the Legislature painstakingly laid down the procedures to be followed in corporate rescue proceedings as the process has dire consequences, in that the mere institution of proceedings initiates the process of corporate rescue.

The second respondent's submissions

Counsel for the second respondent (Associated Mine Workers Union of Zimbabwe) submitted, that, the appellants preliminary objection a quo was not raised in respect of a particular creditor who was not notified. He said the objection was raised as a bald allegation on the invalidity of the service of notice. He argued, that, the respondents served notice on creditors and attached e-mails to that effect. It was through an abundance of caution that the respondents caused the further publication of the notice in the newspaper.

In respect to the issue of locus standi, counsel for the second respondent argued, that, the appellants failed to raise that issue before the court a quo in the opposing papers. He argued, that, the principle that what is not disputed is deemed to be admitted ought to be applied against the appellants.

He further argued, that, in terms of section 29 of the Labour Act [Chapter 28:01], a trade union represents employees in an industry, whereas a workers committee represents employees at the workplace. The contention was that the second respondent (Associated Mine Workers Union of Zimbabwe) enjoyed legal standing to institute corporate rescue proceedings against the appellants in the court a quo....,.

THE PROCEDURE AND EFFECT OF CORPORATE RESCUE

The Insolvency Act [Chapter 6:07] provides two ways of commencing corporate rescue proceedings:

(i) The first procedure is in terms of section 122(1) of the Insolvency Act, which provides that the Board of a company, or, its shareholders, can make a resolution to institute corporate rescue proceedings.

This procedure is voluntary and does not require the company to approach a court.

The resolution placing the company under supervision can only be taken if the company is financially distressed, in that, it is unable to pay its debts and there appears to be reasonable prospects of rescuing the company.

For the resolution to be effective, it must be filed with the Master of the High Court, the Registrar of Companies, and the Registrar of Co-operative Societies, in the case of a co operative society.

The company must, within five business days after filing the resolution, notify every “affected person” and appoint a corporate rescue practitioner who satisfies the requirements of section 131 of the Insolvency Act.

The responsibility of the corporate rescue practitioner is to oversee management of the company during the corporate rescue proceedings.

(ii) The second procedure, which is the procedure adopted in this matter, is made by way of an application to court for an order commencing corporate rescue proceedings.

The procedure to be followed, in terms of section 124 of the Insolvency Act [Chapter 6:07], is as follows:

“(1) Unless a company has adopted a resolution contemplated in section 122, an affected person may apply to a Court, at any time, for an order placing the company under supervision and commencing corporate rescue proceedings.

(2) An applicant, in terms of subsection (1), must —

(a) Serve a copy of the application on the company, the Master, and the Registrar of Companies; and

(b) Notify each affected person of the application by standard notice.

(3) Each affected person has a right to participate in the hearing of an application in terms of this section.

(4) After considering an application in terms of subsection (1), the Court may —

(a) Make an order placing the company under supervision and commencing corporate rescue proceedings, if the Court is satisfied that —

(i) The company is financially distressed; or

(ii) The company has failed to pay over any amount in terms of an obligation under or in terms of a public regulation, or contract, with respect to employment-related matters; or

(iii) It is otherwise just and equitable to do so for financial reasons; and there is a reasonable prospect for rescuing the company; or

(b) Dismissing the application, together with any further necessary and appropriate order, including an order placing the company under liquidation.”

The application for corporate rescue is filed before the High Court by any affected person.

Section 121(1)(a) of the Insolvency Act defines “affected person” as follows:

“(i) A shareholder or creditor of the company; and

(ii) Any registered trade union representing employees of the company; and

(iii) If any of the employees of the company are not represented by a registered trade union, each of those employees or their respective representatives.”...,.

APPLICATION OF THE LAW TO THE FACTS

It appears to the Court, that, this matter can be disposed of by answering one pertinent issue, which is: whether or not the failure to comply with the mandatory provisions of the Insolvency Act rendered the application a nullity.

It has already been established, that, section 124 of the Insolvency Act provides for the procedure to be followed when approaching the court for an order of corporate rescue. Section 124(1) of the Insolvency Act [Chapter 6:07] provides that:

“124 Court order to commence corporate rescue proceedings

(1) Unless a company has adopted a resolution contemplated in section 122, an affected person may apply to a court, at any time, for an order placing the company under supervision and commencing corporate rescue proceedings.”

The statute is specific in relation to the appropriate applicant who is entitled to make an application for corporate rescue.

The statute is specific so as to curb the abuse of the process by parties who may not have a substantial interest in the rehabilitation of a company as well as parties who may only be interested in their personal financial gain and not the rehabilitation of the company.

In terms of the Insolvency Act, there is no ambiguity as to whom an affected person is.

It is either a shareholder, a creditor of the company, a registered trade union representing the employees of the company, or the employees of the company who are not represented by a registered trade union.

An applicant for corporate rescue is therefore confined to such persons.

In casu, the second respondent (Associated Mine Workers Union of Zimbabwe) cannot be held to be an affected person in terms of the Insolvency Act. It was never alleged by the second respondent that it was a shareholder. Therefore, it cannot qualify in terms of the first criterion set out in section 121(1)(a)(i) of the Insolvency Act.

Instead, the second respondent (Associated Mine Workers Union of Zimbabwe) alleged that it was a creditor because it was in possession of a judgment against the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd).

It is apparent from the record that the judgement which the second respondent relied on is a judgment, not against the first appellant, but another company identified as Metallon Gold, that is based in the United Kingdom. The judgement does not establish that the second respondent was a creditor of any of the appellants.

In the absence of any other evidence to prove that indeed the second respondent was a creditor of any of the appellants, the Court cannot possibly clothe the second respondent with creditor status.

The second respondent further alleged, that, it qualified as an affected person in terms of section 121(1)(a)(ii) of the Insolvency Act, in that it was a registered trade union in the mining industry.

The Insolvency Act does not provide for a registered trade union in the industry but specifically provides for a “registered trade union representing the employees of the company.”

Lastly, the second respondent does not qualify as an employee of the company in terms of section 121(1)(a)(iii) of the Insolvency Act.

As such, the second respondent does not meet the requirements of an affected person, and, therefore, had no locus standi to institute corporate rescue proceedings against the appellants.

There is no reason to deviate from the definition of “affected person” prescribed by the Insolvency Act.

The respondents failed to comply with the provisions of section 124(2) of the Insolvency Act, which made their application a nullity as they failed to comply with peremptory provisions of the statute.

Section 124(2) of the Insolvency Act [Chapter 6:07] provides that:

“(2) An applicant in terms of subsection (1) must —

(a) Serve a copy of the application on the company, the Master, and the Registrar of Companies; and

(b) Notify each affected person of the application by standard notice.”

Section 2 of the Insolvency Act provides that:

“'standard notice' means notice by registered mail, fax, e-mail or personal delivery.”

This provision shows, that, the court a quo misdirected itself when it found that neither the manner of notification nor the form or content of “standard notice” was defined in the Insolvency Act.

The court a quo went on to express the view, that, there was a lacuna in the law that needed to be addressed by the Legislature as it created confusion in the procedure.

The court a quo failed to appreciate the statutory definition of standard notice as set out in section 2 of the Insolvency Act [Chapter 6:07].

It is clear that standard notice can only be effected through registered mail, fax, email or personal delivery. Nowhere in the Insolvency Act is there a provision for standard notice to be by way of publication in a newspaper.

Such notice was a nullity which vitiated the entire proceedings.

Service by way of standard notice is a peremptory requirement as the Insolvency Act uses the word “must”. Deviation from peremptory requirements of the Insolvency Act render an application fatally defective.

It is imperative to conduct corporate rescue proceedings with the utmost diligence and care as they have far-reaching consequences, not only on the creditors, shareholders, and employees of a corporation but the society at large.

Corporate rescue is predicated on a broader social justice perspective unlike the old law of judicial management that was based on private corporate interest. Consequently, it is critical that the procedures laid down for corporate rescue be complied with to the letter.

In Top Trailers (Pty) Ltd and Anor v Kotze [2017] ZAGPPHC 1268 the court expressed the following sentiments in respect of notification of affected persons:

“How Kotze should have become aware of the business rescue proceedings is not explained by the applicants.

The applicants have the obligation to notify all affected persons of the resolution but have not done so and have not proffered any explanation for their breach. They are now approbating and reprobating, demanding that Kotze should perform miracles. The applicants themselves had not complied with the law, but are using the same legislation that they disregarded to achieve a perverted outcome. The Court will not allow itself to be a party to an illegality…,.

The main argument relied on by Kotze, at the proceedings before Justice Khumalo, was that the resolution placing Top Trailers under business rescue was a nullity because of the company's non-compliance with section 129(3) of the Companies Act.

From a reading of the affidavit filed by Kotze at the hearing before Justice Khumalo, it is clear that Kotze was attacking the resolution adopted by the Board of Directors. The attack was to the effect, that, because he, as an affected person, was not notified of the resolution, as provided for in section 129 of the Companies Act, the resolution stood to be set aside.

I cannot disagree with his reasoning on this score….,.

I find that Kotze, as an affected person, a creditor of the company, should have been notified of the resolution placing Top Trailers under business rescue but he was not notified. The fact that Kotze was not notified clearly infringes on his rights as an affected person and creditor of the company.”

It is apparent, that, the failure to notify affected persons is not only a breach of peremptory provisions, but it also prejudices affected persons who have a substantial and legitimate interest in the fate of the company as they are not afforded an opportunity to respond to the application.

Ultimately, the outcome of the application may prove to be adverse to them.

The effect of non-compliance by an applicant for corporate rescue with the provisions of the Insolvency Act, relating to notifying affected persons by standard notice, renders the application a nullity.

DISPOSITION

In the result, it is ordered as follows -

1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and substituted with the following –

“The applications for corporate rescue under HC2619/19 and HC2696/19 be and are hereby dismissed with costs.”

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

FACTUAL BACKGROUND

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

APPLICANTS SUBMISSIONS BEFORE THIS COURT

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

THIRD RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED

The Constitutional Court is a specialised court with limited jurisdiction. It only determines constitutional matters. As a result, direct access to the Court is an extraordinary procedure that is availed only in deserving cases that meet the requirements prescribed by the Constitution and the rules of the Constitutional Court.

Section 167(5) of the Constitution provides:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;

(b) To appeal directly to the Constitutional Court from any other court;

(c) To appear as a friend of the court.”

In turn, Rule 21(3) of the Constitutional Court Rules prescribes what ought to be contained in an application for direct access. It reads as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules goes on to provide:

“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

The primary task, therefore, is to determine whether it is in the interests of justice for direct access to be granted.

The main argument by the applicants is that the law that permits an employer to discipline an employee for acts done bona fide in the exercise by that employee of his or her duties and obligations as a worker or union representative violates a fundamental right and is an infringement of section 65(2) of the Constitution.

This section provides as follows:

“(2) Except for members of the security services, every person has the right to form and join trade unions and employee or employers organisations of their choice, and to participate in the lawful activities of those unions and organisations.”…,.

The applicants argue, that, the above section protects, in unequivocal terms, the actions of an employee in pursuit of the rights of the employees where such employee commits acts of misconduct bona fide in the pursuit of the rights of those he represents in the workplace. Therefore, so goes the argument, any law contained in codes of conduct that permits an employer to discipline an employee who acts bona fide and contrary to his contract of employment is an infringement of the right contained in section 65(2) of the Constitution above.

The applicants have not identified, with any specificity, the law that they intend to challenge.

In one breath they aver that they allege an infringement of section 65(2) of the Constitution by the law emerging from the interpretation by the Supreme Court of section 101 of the Labour Act. They contend, that, at the stage of the application for access to the Constitutional Court, the merits of the intended application are irrelevant.

They contend, that, by merely alleging an infringement of a constitutional right, they have shown that they are raising a constitutional matter for jurisdictional purposes.

They are mistaken.

It is now settled in this jurisdiction, that, in view of the position of the Constitutional Court as a specialized court, an applicant must show that it is in the interests of justice that access to the court be granted. One of the factors that a court may take into account is whether or not the application has prospects of success.

The locus classicus is Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, where the Constitutional Court stated:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:

(i) The first is that the applicant must state facts or grounds in the founding affidavit, the consideration of which would lead to the finding, that, it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

(ii) The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

The court holds, that, the applicants have failed to show that the application has prospects of success. The reasons for so holding are the following:

The application does not raise a constitutional matter for determination by the Constitutional Court. The relief being sought in the draft order is set out to be the following:

“1. That, it be and is hereby declared that it is an infringement of the fundamental right protected by section 65(2) of the Constitution of Zimbabwe 2013 for an employment code of conduct registered in terms of section 101 of the Labour Act [Chapter 28:01] to permit an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader.

2. That, for the avoidance of doubt, and arising from the order in para 1, it is declared that the current labour law of Zimbabwe, contained in section 101 of the Labour Act [Chapter 28:01], and as interpreted by the Supreme Court of Zimbabwe in judgments such as ZB Bank Limited v Tirivanhu Marimo (Judgment No. SC21-20), namely, that, an employer may be permitted by a registered code of conduct to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader, is inconsistent with the aforesaid section 65(2) of the Constitution and therefore invalid, null and void and of no force or effect.

ACCORDINGLY, IT IS ORDERED:

1. That, section 101 of the Labour Act [Chapter 28:01] must be interpreted in a way that makes it not contemplate (sic) a registered code of conduct that permits an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader....,.

2. There shall be no order as to costs.”

An analysis of the draft order does not lead to an order invalidating any law. The order sought seeks to create immunity for employees from disciplinary action within the workplace.

The Code of Conduct which, in this case, would be the offending law, has not been challenged.

It was conceded by the applicants counsel, that, the majority of codes of conduct are the product of negotiated collective bargaining agreements drawn up by the employers organisations and the employee organizations of the sector in respect of which the collective bargaining agreement relates to.

In my view, it is in the collective bargaining agreement that any immunity, if it is to be granted, must be provided for.

The contention by the applicants is that in a series of judgments, the last of which is ZB Bank Limited v Tirivanhu Marimo SC21-20, the Supreme Court has found that a union representative who commits an act of misconduct at his workplace, in an endeavour to further the interests of the membership of the union, is not immune from disciplinary proceedings. The applicants further contend, that, this position violates the right provided for in section 65(2) of the Constitution.

The right in the section is available to a person to participate in the lawful activities of a union.

My reading of the subsection does not suggest, by any stretch of the imagination, that employees are given carte blanche by the Constitution to breach their contracts of employment and provisions contained in codes of conduct and thus create havoc or anarchy within the workplace under the guise of furthering the interests of workers and the union.

The contention, that, the Supreme Court judgement cannot be subjected to scrutiny by the High Court is evidence of the argument by the third respondent that the intended application does not raise any constitutional issues and is, in point of fact, a disguised appeal.

In order to participate in the activities of a union, a person must be a member of such union.

The Constitution of the first applicant provides that “membership of the union shall be open to all employees in the financial services industry.”

It stands to reason, therefore, that one's route to union membership is firmly hinged on one's employment status. One must be an employee, but one must also be an employee in the relevant or appropriate employment sector. If one is not an employee one cannot be involved in union duties nor can one lawfully represent other employees in relation to labour rights.

Thus, the employer-employee relationship is the glue that connects an employee, on the one hand, and his capacity to act for a union within the industry, on the other.

The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.

The fact that an employee is a member of a trade union or is a workers representative does not sever the employment relationship. It does not qualify any of the obligations and duties that each owes the other under the contract of employment. The terms of the contract of employment define the ambit of the parties relationship. To place the employee's status as a union member or workers representative above that of the employment contract would be to subsume the contract of employment under such membership.

That cannot be a correct position of the law as it pertains to employment contracts.

Section 65(2) of the Constitution, upon which the applicants seek reliance for the alleged violation of the fundamental rights of employees in the workplace, does indeed protect the right of every person to form, join, and participate in the activities of a trade union or employer organisation.

The rider to the right is that such participation must be clothed with legality.

The applicants counsel was pressed on this issue and was constrained to concede that the activities protected under section 65(2) of the Constitution must be lawful.

It was pertinent to note, that, the applicants counsel admitted, that, the participation of the second applicant, or his colleagues, in an illegal strike would not be the lawful activities contemplated by the section for protection.

In my view, the concessions from counsel establish that the application does not enjoy prospects of success.

The employment relationship is a voluntary one and the employee is duty bound to honour it if he or she wishes to remain in the relationship.

Inherent in the contract of employment is the employer's right to discipline an employee for perceived acts of misconduct.

The applicants accept, that, codes of conduct that are registrable under section 101 of the Labour Act provide for disciplinary measures for misconduct in the workplace.

Thus, the Labour Act itself limits the right to engage in trade union activities unless such activities are lawful. The activities must be consistent with the law and the employer's interests.

The contention by the respondents, which contention finds favour with me, is that the applicants have not identified which law they seek to challenge.

They accept that disciplinary measures in the workplace are permitted in terms of section 101 of the Labour Act which not only provides for the registration of codes of conduct but sets out what a code of conduct may provide for.

They are not seeking to impugn this section.

What they suggest is that the proposition by the Supreme Court, to hold that an employee may be disciplined for those acts of misconduct done by an employee as a worker representative is in violation of section 65(2) of the Constitution.

The Constitution gives every person the right to participate in the “lawful activities” of a trade union. It does not give licence to members to breach the law. The right does not exist in a vacuum and the right must be balanced against the interests of the employer and taking into consideration the obligations that an employee owes his or her employer.

An argument raised by the third respondent, as a preliminary point, was to the effect, that, the intended application is a disguised appeal against the judgment of the Supreme Court, and that, for that reason, the application was not properly before the Court.

The argument by the applicants is that the Supreme Court is the highest court in relation to matters that do not raise a constitutional issue and no appeal lies against a decision of that court.

The additional argument made is that the order being sought is evidence of the nature of the application that they seek to bring.

It is correct, as contended by the third respondent, that, the Supreme Court is the highest court in this jurisdiction and that no appeal lies against its decisions unless the decision is on a constitutional matter.

However, it is settled that the law allows an attack against a judgment of the Supreme Court where certain requisites have been met on the premise of the attack.

In Denhere v Denhere CC09-19, the Constitutional Court set out the principle for an attack on a Supreme Court judgement in the following terms:

“In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Court noted at pp6-11 of the cyclostyled judgment that:

'Consideration of the relevant constitutional provisions supports the view, that, the validity of a decision of the Supreme Court, in proceedings involving non-constitutional matters, may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter 4 of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court, in the circumstances, is the Constitution itself. The right given to a litigant under section 85(1) of the Constitution, to approach the Court for appropriate relief on the allegation stated, is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority....,.

The scope of the right to approach the Court for appropriate relief under section 85(1) of the Constitution is not limited by specific objects against which the allegations of infringement of a fundamental right or freedom can be made. A constitutional complaint provided for under section 85(1) of the Constitution can be lodged against any act of public authority. A decision of the Supreme Court, in a case involving a non-constitutional issue, would fall within the category of acts, the constitutional validity of which may be challenged on the grounds prescribed under section 85(1) of the Constitution.'”

That the applicants enjoy the right described above is not in doubt.

The test for challenging a judgment of the Supreme Court was established in the case of Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18 as follows:

“The facts must show, that, there is a real likelihood of the Court finding that the Supreme Court infringed the applicant's right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.

The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.

Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under section 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.”

In the averments made by the applicants in this matter, there is no allegation that the Supreme Court failed to comply with the law.

Its compliance with the law is not only conceded - it is accepted.

It is in fact accused of complying with and upholding the provisions of codes of conduct in the workplace. There is thus no suggestion of arbitrariness on the part of the Supreme Court.

Further, there is no suggestion in the application itself that the decision of the Supreme Court is in any way inconsistent with the law thus justifying an attack on the decision on the basis that it has violated a fundamental right.

As stated by the Constitutional Court in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the remedy under section 85 of the Constitution is not for the protection of fundamental rights in the abstract. An applicant must show the breach of the fundamental right.

As contended by the third respondent, correctly in my view, the applicants have brought to the Constitutional Court an application that is, to all intent and purposes, a disguised appeal against the judgment of the Supreme Court in ZB Bank Limited v Tirivanhu Marimo SC21-20.

A selective comparison may be drawn from South Africa where section 14(4) of the Labour Relations Act 66 of 1995 provides, that, a trade union representative has the right to perform various functions at the request of an employee in the workplace. Furthermore, item 4(2) of Schedule 8 of the Labour Relations Act 66 of 1995, as amended, also provides, that, discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

In that context, the Labour Appeal Court said the following in BIFAWU & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 (LAC)...,:

“That an employee, even when he or she is representing a fellow employee at a disciplinary enquiry or arbitration hearing, owes certain duties to an employer cannot be doubted. Among these is the duty to act honestly....,. After all, when an employee represents a fellow employee at a disciplinary enquiry or arbitration hearing, he or she does so precisely in that capacity, of being a fellow employee.

The fellowship does not transubstantiate the continuing employment relationship between the employer and the representing employee.

…,. The right and duty to represent a fellow employee to the best of one's ability is not an unbridled licence; it is constrained by the duty to do so honestly. Without honesty on the part of the representatives of the parties, the system would be unviable.”

It is the Court's view, that, a workers representative's actions, bona fide or mala fide, and whether carried out in furtherance of his or her duties as a trade unionist or employees representative, ought not to undermine the employer/employee relationship.

This is because the employment relationship is intrinsically both co-operative and antagonistic.

It is cooperative in as much as employers and employees are mutually dependent on one another to secure their goals. At the same time, it is antagonistic because of the different interests that the parties may hold....,.

The Court holds, that, the applicants have failed to demonstrate, that, it is in the interests of justice to grant leave for direct access. This is because the right to participate in the activities of a trade union, or act as a workers representative, cannot be exercised to undermine the employer/employee relationship.

DISPOSITION

In the result, the application be and is hereby dismissed with no order as to costs.

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

Applicants 1 to 10 (Berrington Zvanyanya, Samuel Jinjika, Nyararai Dembo, Madhuvura Emmanuel, Madzuro Stiriki, Lovemore Muteurwa, Vengai Masungwini, Ngonidzashe Mabina Mudambanuki, Joe Gasva and Masacha Tapiwa) are one faction of a trade union.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are the other.

The trade union is the first respondent (Zimbabwe Sugar Milling Industry Workers Union).

The seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd) 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.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are members of the National Executive Committee of the trade union.

The applicants allege respondents 2, 3 and 4 (Godfrey Katerere, Brawl Chikandiwa and Tavanga Vandirai) are no longer employees of the seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd).

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.

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.

Costs of suit are sought against respondents 2, 3 and 4 on an attorney-client scale.

The applicants allege they derive their power to sue from their membership of the trade union and in terms of its Constitution.

The respondents, except the employer, have all vehemently opposed the application.

Their grounds are multiple and disparate. They are both technical and substantive....,.

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.

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.

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.

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.

The substantive issue before me is whether 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.

Counsel for the respondents argues that Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) 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, moreso, ex-employees who may still be fighting against their dismissal.

Counsel fort the respondents 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.

The answer to this case lies in the wording of the Constitution of the first respondent and the Labour Act [Chapter 28:01].

I find no material difference between the scenario in Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) 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.

Counsel for the respondents 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.

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.

But, counsel for the respondent's argument is a ruse.

In Makarudze & Anor v Bungu & Ors 2015 (1) ZLR 15 (H) 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 of the Labour Act, 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 of the Labour Act, the right to form trade unions is that of employees.

Clauses 10.6 and 10.7 of the first respondent's Constitution, that form the bedrock of counsel for the respondents 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.

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 & Anor v Bungu & Ors 2015 (1) ZLR 15 (H).

Evidently, as a last-ditch effort, counsel for the respondents 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.

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....,.

(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.

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

The applicants filed an Urgent Chamber Application on 26 September 2019. The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) filed opposing papers on the date of the hearing.

The 8th to 14th respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) 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 (Zimbabwe Federation of Trade Unions) is opposed to the application. He also did not file opposing papers.

The relief sought was amended at the eleventh hour.

The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) 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, Godfrey Katerere, Brawl Chikandiwa and Tavonga Vandirai)) 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 (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele and Nokhutula Dube) 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 first and second applicants (Triangle Ltd and Hippo Valley Estates Ltd) are the employers.

The first respondent (Zimbabwe Sugar Milling Industry Workers Union) is a registered trade union in terms of the laws of Zimbabwe.

The second to seventh respondents (Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) are members of a faction of the first respondent while the eigth to fourteenth respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) are members of the second faction.

The two factions are involved in a fierce battle to control the first respondent.

The fifteenth respondent (Zimbabwe Federation of Trade Unions) is ostensibly the mother body of the first respondent (Zimbabwe Sugar Milling Industry Workers Union) while the fourteenth respondent (Admore Hwarare) is cited in her official capacity.

The employer is, by virtue of the law, enjoined to transmit union dues to the first respondent.

The situation has been complicated by the fights and disagreements between the two factions set on wrestling and winning control over the first 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....,.

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 two (2) executive members of the first respondent remaining.

The question posed is: what will happen if there is a deadlock?

Counsel for the first to seventh respondents argues, that, upon the appeal being lodged, the position reverses to that before the appeal.

Counsel for the first to seventh respondents made further submissions as follows;

(i) The applicants are the ones manufacturing the confusion.

(ii) The applicants created the problem by participating in a meeting of 13 July 2019.

(iii) The applicants seek to cripple the first respondent and only want to place their favourite candidates in the first respondent's executive committee before they can transmit dues to the first 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 the applicants in the matter.

But, is the best resolution to continue paying union dues to the first 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 the first 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 counsel for the 8th to 14th respondents submissions 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, a trade unionist representing the fifteenth respondent (Zimbabwe Federation of Trade Unions) pointed out that the first respondent is their affiliate.

I have to mention, that, that position is not shared by all – see Annexure 'K'…, 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.

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Workers Committee, Trade Unions, Union Membership, Legal Representation and Obligations of Workers Representatives

SC88-05 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs CAUTION NHARARA Ruled By: CHEDA JA, MALABA JA and GWAUNZA JA

SC16-12 : CT BOLTS (PVT) LTD vs WORKERS COMMITTEE Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE Ruled By: GWAUNZA JA

SC04-14 : DAVID MOYO vs RURAL ELECTRIFICATION AGENCY Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC51-16 : ZESA TECHNICAL EMPLOYEES ASSOCIATION vs ZESA HOLDINGS (PRIVATE) LIMITED Ruled By: MALABA DCJ

SC42-17 : ZIMBABWE UNITED PASSENGERS COMPANY (ZUPCO) vs ONSON MASHINGA Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and UCHENA JA

HH08-15 : JOHN MAKARUDZE and MAXWELL MUNONDO vs COSMOS BUNGU and THE EXECUTIVE COMMITTEE, HARARE MUNICIPAL WORKERS' UNION and THE HARARE MUNICIPAL WORKERS' UNION Ruled By: MAFUSIRE J

SC43-18 : ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) vs KASIKAI MASHONGANYIKA Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HB151-16 : CHRISTOPER MABHUNU vs THE COMMISSIONER GENERAL OF POLICE Ruled By: MAKONESE J

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC Ruled By: KUDYA J

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD Ruled By: MTSHIYA J

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC107-21 : METALLON GOLD ZIMBABWE (PVT) LTD and OTHERS vs SHATIRWA INVESTMENTS (PVT) LTD and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE and MASTER OF THE HIGH COURT and REGISTRAR OF COMPANIES Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS Ruled By: MAFUSIRE J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS Ruled By: WAMAMBO J

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Zimbabwe

SC88-05 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs CAUTION NHARARA
Ruled By: CHEDA JA, MALABA JA and GWAUNZA JA

SC16-12 : CT BOLTS (PVT) LTD vs WORKERS COMMITTEE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC63-05 : OLIVINE INDUSTRIES (PVT) LIMITED vs DAVID GWEKWERERE
Ruled By: GWAUNZA JA

SC04-14 : DAVID MOYO vs RURAL ELECTRIFICATION AGENCY
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

SC51-16 : ZESA TECHNICAL EMPLOYEES ASSOCIATION vs ZESA HOLDINGS (PRIVATE) LIMITED
Ruled By: MALABA DCJ

SC42-17 : ZIMBABWE UNITED PASSENGERS COMPANY (ZUPCO) vs ONSON MASHINGA
Ruled By: ZIYAMBI JA, HLATSHWAYO JA, and UCHENA JA

HH08-15 : JOHN MAKARUDZE and MAXWELL MUNONDO vs COSMOS BUNGU and THE EXECUTIVE COMMITTEE, HARARE MUNICIPAL WORKERS' UNION and THE HARARE MUNICIPAL WORKERS' UNION
Ruled By: MAFUSIRE J

SC43-18 : ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) vs KASIKAI MASHONGANYIKA
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HB151-16 : CHRISTOPER MABHUNU vs THE COMMISSIONER GENERAL OF POLICE
Ruled By: MAKONESE J

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC107-21 : METALLON GOLD ZIMBABWE (PVT) LTD and OTHERS vs SHATIRWA INVESTMENTS (PVT) LTD and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE and MASTER OF THE HIGH COURT and REGISTRAR OF COMPANIES
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J