BHUNU J: The applicant operates a farming enterprise
trading under the style of Buckingham Farm, North road, Marondera.
The first and second respondents are
trade unions in the agricultural industry whereas the third to fourth
respondents are their respective office bearers. The fifth to ninth respondents are its
employees and former members of the workers' committee.
The parties are embroiled in wage
disputes concerning the classification of their enterprise. The applicant accuses the respondents of
inciting its employees to engage in unlawful collective job action. In a bid to protect its business operations
it has now applied for a provisional order interdicting the respondents from
communicating in any manner whatsoever with its employees upon pain of imprisonment.
The respondents have challenged the
application on two cardinal preliminary legal points. Firstly, that this being a labour dispute,
this Court has no jurisdiction to hear and determine the matter. And secondly, that the order sought is
unlawful in so far as it seeks to violate the respondents' fundamental
constitutional right of freedom of association and assembly and is in breach of
s 4 of the Labour Act [Cap 28:01].
Section 21 of the Constitution
protects the subject's right of assembly and association. It reads:
“21 Protection of freedom of assembly and
association
(1)
Except with his own consent or by way of parental
discipline, no person shall be hindered in his freedom of assembly and
association, that is to say, his right to assemble freely and associate with other
persons and in particular to form or belong to political parties or trade
unions or other associations for the protection of interests.
(2)
The freedom referred to in subsection (1) shall include
the right not to be compelled to belong to an association.
(3)
Nothing contained in or done under the authority of any
law shall be held to be in contravention of subsection
(1)
to the extent that the law in question makes provision
–
(a)
in the interests of defence, public safety, public
order, public morality or public health;
(b)
for the purpose of protecting the rights or freedom of
other persons;
(c)
for the registration of companies, partnerships,
societies or other associations of persons, other than political parties, trade
unions or employers' organizations; or
(d)
that imposes restrictions upon public officers; except
so far as that provision or, as the case may be, the thing done under the
authority thereof is shown not to reasonably justifiable in a democratic
society.
(4)
The provisions of subsection (1) shall not be held to
confer on any person a right to exercise his freedom of assembly or association
in or any road, street, lane, path, pavement, sidewalk, thoroughfare or similar
place which exists for the free passage of persons or vehicles.”
Section 4 of the Labour Act provides
for the fundamental right of employees to belong to trade unions and workers'
committees of their choice. It provides
as follows:
“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, if he so desires, to be a member or an
officer of a trade union;
(b)
where he is a member or an officer of a trade, the
right to engage in the lawful activities of such trade union for the
advancement or protection of his interests;
(c)
the right to take part in the formation and
registration of a trade union;
(d)
the same rights, mutatis
mutandis, as are set out in paragraphs (a), (b), and (c) in relation to
workers committees.
(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 condition of membership.
(3)
No term or condition of employment and no offer of
employment shall include a requirement that an employee or prospective employee
shall undertake-
(a)
if he is a member or officer of a trade union or
workers committee, to relinguish his membership or office of such trade union
or workers committee; or
(b)
not to take part in the formation of a trade union or
workers committee; and any such requirement shall be void.
(4)
Without prejudice to any other remedy that may be
available to him in any competent court, any person who is aggrieved by any
infringement or threatened infringement of a right specified in subsection (1)
shall be entitled to apply under Part XII for either or both of the following
remedies-
(a)
an order directing the employer or other party
concerned to cease the infringement or threatened infringement, as the case may
be;
(b)
an order for damages for any loss or prospective loss
caused either directly or indirectly, as a result of the infringement or
threatened infringement, as the case may be.”
From the foregoing it is clear that
both the Constitution and the Labour Act confer on the employee the fundamental
universal rights of freedom of association and assembly which entail the right
to belong to a trade union and, or workers' committee of one's choice without
let or hindrance.
In the circumstances the court will
hesitate to divest the respondents of their constitutional and statutory rights
without a proper legal basis being laid down.
If the applicant's complaint is that the respondents are inciting its
employees to embark on illegal collective job action, this becomes essentially
a labour dispute subject to resolution in terms of the Labour Relations
Act. It is now settled law that the High
Court or any other Court for that matter has no jurisdiction to hear and
determine labour disputes which are subject to resolution in terms of the
Labour Act see Tuso v City of Harare 2004
(1) ZLR 1 and Border Timbers (Pvt) Ltd v
Export Processing Zones Labour Board and Others S – 46 – 09.
Section 106 of the Labour Act
provides elaborate procedures for the resolution of on going or threatened
illegal strikes in terms of the Act.
Resort to the High Court and the criminal law was therefore ill
conceived, inappropriate and incompetent.
That being the case the application
cannot succeed. It is accordingly
ordered that the application be and is hereby dismissed with costs.
Chikumbirike and Associates, the applicant's legal practitioners
Mwonzora and
Associates, the Respondents' legal practitioners
