WATER AUTHORITY WORKERS UNION                    

OF ZIMBABWE

versus

CITY OF HARARE

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE31 March and 1 April 2011

Urgent Chamber Application

A Mugandiwa, for the Applicant

C Kwaramba, for the Respondent

UCHENA J:   The applicant is a Workers Union representing Zimbabwe National Water Authority Workers. It is a registered trade union. It originally represented Zinwa employees, but now represents Zinwa employees, and former Zinwa employees who were transferred to Local Authorities when Zinwa’s water function in local authorities was transferred to local authorities.

The respondent is the City of Harare one of the local authorities to which Zinwa transferred some of its workers.

Disputes arouse between the applicant and respondent, the relevant one being the deduction of trade union dues through the check-off system by the respondent from its water employees and their submission to the applicant. The respondent threatened to discontinue the deductions. The applicant referred that dispute and others to compulsory arbitration in terms of s 98 (4) of the Labour Act [Cap 28:01] herein after called the Act. The Arbitrator in his award dated 23 July 2010 among other orders ordered the respondent to continue ducting union dues and submitting them to the applicant.

The respondent appealed against the Arbitrator’s award to the Labour Court. However an appeal against a decision of the Labour Court or that of an Arbitrator does not suspend the operation of the order granted. Thereafter the respondent has up to the filling of this application continued to deduct and remit dues to the applicant. On its part the applicant has in terms of s 98 (14) of the Act, applied to this court for the registration of the award. The appeal and the application for registration are pending.

The respondent on 23 March 2011 wrote to the applicant giving notice that it can no longer continue to deduct union dues for the applicant because, s 53 (1) and (2) of the Labour Act provides that-

“(1)      No employer shall, without the consent of the Minister, pay on behalf of any employee any union dues other than to a registered trade union.

(2)        Any employer who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.”

The dues are deducted at the end of each month, therefore those for the month of March 2011 will not be deducted if this court does not interdict the respondent from carrying out its threat The applicant filed this urgent application to avoid loss of income from its members who were transferred to the respondent’s water department. It seeks a provisional order to the following effect:

“Pending determination of matters in HC 283/2011 and LC/H/369/2010, the

applicant be and is hereby granted the following relief:

That the respondent be and is hereby interdicted from stopping the recovery of union dues payable to the applicant by means of a check-off system”

The respondent opposed the application and raised the following preliminary issues.

1. That the case is not urgent.
2. That it is improper for a legal practitioner who is representing the applicant to himself prepare and file the certificate of urgency
3. That the case being a labour dispute should have been filed in the Labour Court and therefore this court has no jurisdiction to hear this application.

Urgency

Mr Kwaramba for the respondent submitted that this case is not urgent because the same dispute is pending in the Labour Court to which the respondent has appealed against the arbitral award, and in this court to which the applicant has applied for the registration of the arbitral award, which the respondent is opposing. He argued that the applicant is seeking to enforce the award through this application before the registration of the award, and that this will have the effect of predetermining the application for registration.

MrMugandiwa for the applicant submitted that the respondent has since the transfer of Zinwa employees to itself, been making deduction and submitting them to the applicant. The respondent has been doing so for over eighteen months. He submitted that the respondent continued to make deductions and submitting them to the applicant after the arbitral award was granted. The applicant was surprised when the respondent by letter of 23 March 2011 advised it that it was going to stop deductions, because of its belief that its continuing to do so renders it open to prosecution for contravening s 53 (1) of the Labour Act. He therefore submitted that the urgency arises from the respondent’s letter of 23 March in which it threatened to stop deductions. He further explained that the order the applicant seeks does not seek to pre-empt the respondent’s appeal to the Labour Court and its own application for registration of the arbitral award. It seeks to maintain the status quo pending the determination of the appeal and the application for registration of the award.

I agree that if the respondent had not written its letter of 23 March this application would not have arisen. The urgency clearly arises from the respondent’s threats contained in that letter. All the applicant seeks is to stop the respondent from carrying out its threat until the dispute is determined by the application for registration of the arbitral award to this court and the appeal to the Labour Court. The urgency is premised on the applicant not getting deductions for the month of March which are due seven days from the date of the threat. I would therefore hold that the application is urgent, and dismiss the respondent’s preliminary issue on urgency.

Certification of urgency

Mr Kwaramba for the respondent submitted that the applicant is not properly before the court because Mr Mugandiwa who is representing the applicant certified the urgency of the application. He relied on the case of Chafanza v Edgars Stores 2005 (1) ZLR 299 (H), @ 300 G- 301 A where CHEDA J with the concurrence of NDOU J said:

“To my mind it is totally undesirable for a legal practitioner to either attest to an affidavit or sign an urgent certificate for and on behalf of a client, who is being represented at his firm as such lawyer clearly has an interest in the matter at hand. Legal practitioners are therefore guided accordingly.”

Mr Mugandiwa in response argued that a legal practitioner does not have an interest in a case he or his law firm is representing. He relied on the case of Route Toute BV & Ors v Susnspun Bananas (Pvt) Ltd & Anor HH 27-10, in which CHATUKUTA J at p 3 of the cyclostyled judgment, said:

“I am persuaded by Mr Chikumbirike’s submissions that the rules do not prescribe that a legal practitioner who signs an urgent certificate must not be from the same firm that represents the applicant in that matter. Rule 242 (2) simply prescribes that where an applicant is legally represented in an urgent chamber application, the application, must be accompanied by a certificate from a legal practitioner supporting the urgency of the application. As Mr Mlotshwa conceded, the decision in the Chafanza case is not binding. It is my view that there is no conflict of interest”

Legal practitioners are in the main complying with Justice Cheda’s judgment. Since the Chafanza case (supra) the majority of legal practitioners, whose urgent applications have appeared before me, are referring their cases for certification of urgency by a legal practitioner outside their law firm. A few are however still certifying the urgency of cases from their own firms. Their defence as was advanced by Mr Mugandiwa is they are doing what has been approved by some subsequent judgments of this court which specifically disagree with the decision in Chafanza (supra) and held that there is no conflict of interest.

The difference of opinion between judges of this court, and the confusion it is causing to legal practitioners, calls for flexibility on whether or not the principle enunciated by CHEDA J should be followed before the Supreme Court makes a decision on that issue. After all CHEDA J merely said it was totally undesirable for a legal practitioner to certify as urgent a case being handled by his own law-firm, but proceeded to deal with that case on an urgent basis, but urging legal practitioners to be guided accordingly. This in my view demonstrates that he was being flexible to allow the principle he enunciated to take root. The principle has however been challenged by other judgments of this court which clearly state that there is nothing wrong with a legal practitioner certifying the urgency of a case being handled by his law-firm.  It would be wrong in my view to penalize a party for doing what some judgments of this court say is correct. I would therefore without adding to the confusing situation by pronouncing my own view on the matter, accept the certificate of urgency by Mr Mugandiwa as valid. The respondent’s preliminary issue on the certification of urgency is therefore dismissed.

Jurisdiction

Mr Kwaramba for the respondent submitted that this court should not hear this application as the Labour Court has jurisdiction to hear such applications. He relied on the cases of Medical Investments v Pedzisai HH 26-10 and DHC v Madzikanda HH 51-10, in which it was held that where there is concurrent jurisdiction between the High Court and the Labour Court the special jurisdiction of the Labour Court should prevail.

Mr Mugandiwa on the other hand submitted that the Labour Court does not have jurisdiction to hear applications for an interdict. He relied on the cases of National Railways of Zimbabwe v Zimbabwe Railway Artisan’s Union & Ors 2005 (1) ZLR 341 (S) at 347 D-E and UZ–UCSF Collaborative Research Programme In Women’s Health v David Shamhuyarira SC 10/10 at p 3, which clearly support his submission.

I am satisfied that the applicant is seeking an order interdicting the respondent from stopping deduction of dues from its members, until the respondent’s appeal to the Labour Court and the applicant’s application for the registration of the arbitral award to this court are determined. As the Labour Court does not have jurisdiction to hear such an application the applicant’s application is properly before this court. The respondent’s preliminary issue on jurisdiction is therefore dismissed.

The Merits

On the merits Mr Mugandiwa submitted that the applicant is merely seeking an interdict to restrain the respondent from carrying out what it threatened to do in its letter of 23 March 2011. He submitted that the applicant has a prima facie right to the deductions by virtue of the arbitral award which ordered that they continue to be made, and by virtue of the respondent having been making those deductions and submitting them to it for over eighteen months, including a period of eight months after the arbitral award. He submitted that for an application for an interdict to succeed the applicant must have a prima facie right which can even be open to doubt. He argued that court orders must be obeyed until they are set aside. He said an arbitral award has the force of a court order and that it can be registered as an order of this court.

He further submitted that the applicant will suffer irreparable harm if the interdict is not granted as the respondent will carry out its threat and not deduct dues for March 2011. He submitted that will cripple the applicant’s operations as the applicant will not have funds to carry out its mandate of representing its members in the litigation already filed in the courts. He submitted that the balance of convenience favours the granting of the interdict as the respondent has already been making deductions and remitting them to the applicant. He submitted that there is no adequate alternative remedy, as the day of deductions was fast approaching and having to resort to members making direct payments would not be an adequate alternative as it may not succeed especially at short notice, and it will result in the applicant incurring expenses in collecting money directly from members. It would also lead to delays in collecting the dues.

Mr Kwaramba for the respondent submitted that the applicant does not have a prima facie right to the dues as it is not a trade union registered with the respondent. He further submitted that the arbitral award, does not give the applicant a prima facie right as it does not have the force of a court order. He argued that the applicant will not suffer irreparable harm as it can collect the dues directly from its members. He submitted that the balance of convenience does not favour the applicant, but favours the respondent who will be laid open to prosecution for contravening s 53 (1) of the Act, if it continues to deduct the dues for the applicant which is not a registered trade union. He argued that the applicant has an adequate alternative remedy as it can directly collect the dues from its members.

I am satisfied that the applicant has a prima facie right even if it is made open to doubt by how s 53 (1) of the Act may be interpreted by the Labour Court in the appeal pending before it, and by this court in the application for registration pending before it. The prima facie right is established by the applicant being a registered trade union. The doubt may arise from the nature of its registration. However that doubt does not disentitle the applicant, as the prima facie right which entitles an applicant to an interdict, need not be free from doubt. I do not agree with Mr Kwaramba that an arbitral award under the Labour Act does not have the force of a court order. It is a court order with the same force and effect as an order of the Labour court. Section 98 (9), provides that:

“In hearing and determining any dispute an arbitrator shall have the same powers as the Labour Court”

That in my view means the decision of the arbitrator should be of equal force and effect as that of a President of the Labour Court which is undoubtedly a court of law whose decision has the force of law.

I am also satisfied that the applicant’s apprehension of irreparable harm is reasonable because the respondent’s threat was given on 23 March 2011, a few days before its members’ were to be paid their salaries for March 2011. This means even if the applicant can make direct collections of dues from its members it may not succeed fully because of the short notice. It will have to put the new system in place. Failure to collect dues will obviously disadvantage it in financing its operations and in the prosecuting of litigations pending before the courts.

The intention of the Legislature tilts the balance of convenience in favour of the applicant. The Legislature found the deduction of dues by check off system efficient and appropriate. It recognised the need to deduct through the members employer. The applicant’s apprehension of irreparable harm is therefore supported by Legislation. This also tilts the balance of convenience in favour of the applicant.

The wording of s 53 (1) of the Labour Act would have tilted the balance of convenience in the respondent’s favour if it had been worded in a manner which made the making of the deductions clearly unlawful. In this case it prohibits the making of deductions without the Minister’s permission “on behalf of any employee any union dues other than to a registered trade union”. The use of the words “other than to a registered trade union”, makes the question of whether or not the applicant is committing an offence debatable, as the applicant is a registered trade union. I will not go into the interpretation of ss 52 and 53 (1) as that issue will be determined by the courts before, which, that dispute is pending. For the purposes of determining this application it is sufficient to observe that the alleged commission of the offence is not obvious because of the status of the applicant as a registered trade union.

The issue of the absence of an adequate alternative remedy has already been dealt with under the disadvantages the applicant may suffer if it has to rely on direct collection of dues from members. The alternative suggested by the respondent has been found inadequate by the legislature which found it necessary to legislate for the deduction, and remittal of dues through the employers of members of trade unions.

In the result I find that the applicant has satisfied all the requirements for the granting of the interdict it applied for.

IT IS ORDERED AS FOLLOWS:

Pending determination of matters in HC 283/2011 and LC/H/369/2010, the applicant be and is hereby granted the following relief:

That the respondent be and is hereby interdicted from stopping the recovery of union dues payable to the applicant by means of a check-off system.

Wintertons, applicant’s legal practitioners

Mbidzo Muchadehama & Makoni, respondent’s legal practitioners.

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