1

HH 74-16

HC 177/16

TRIANGLE LIMITED

and

HIPPO VALLEY ESTATES LIMITED

and

MKWASINE ESTATE

and

THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION

(PVT) LIMITED

versus

ZIMBABWE SUGAR MILLING INDUSTRY WORKERS’ UNION

and

THE MINISTER OF PUBLIC SERVICE LABOUR AND SOCIAL WELFARE

and

THE PROVISIONAL ADMINISTRATOR OF ZSMIWU MR P.Z.DZVITI (N.O.)

and

SUGAR PRODUCTION MILLING ALLIED WORKERS UNION OF ZIMBABWE

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 20 & 21 January 2016

Urgent chamber application

A Rutanhura with E Moyo, for the applicants

T Magwaliba, for the 1st respondent

H Madangure, for the 2nd respondent

J Bamu, for the 4th respondent

            MAKONI J: The applicants approached this court seeking a provisional order in the following terms:

            “TERMS OF FINAL ORDER SOUGHT

            That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.
2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.
2. Should any member of the 1st respondent resort to the said collective job action, such action shall be lawful and the applicants shall have the right to bring such member before a disciplinary hearing.
3. The 2nd respondent shall within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.
4. That leave is hereby granted to the applicants’ legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

            The background to the matter is that the first respondent embarked on a collective job action             sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent, the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015. I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

            The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into. The first respondent then wrote advising the applicants that it was resuming the collective job action. The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on collective job action.

            It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

            The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

            The application was opposed by the first and fourth respondents. I will deal with the position of the fourth respondent first.

            The fourth respondent contended that it does not have any interest in this matter and had been wrongly joined as a party. No relief is being claimed against it. It had been unnecessarily dragged to defend this matter in which it had no real interest. It prayed for costs on a higher scale.

            The applicants contend that it was made clear in the applicants’ papers that no order was being sought against the fourth respondent. It had been cited as an interested party. The fourth respondent had in the past demanded that it be made part of the 2015 wage negotiation process. It had been cited out of an abundance of caution.

            It is trite that a party who has a direct or substantial interest in the result of any litigation and whose interest might be prejudicially affected thereby must be afforded the opportunity to be joined as a party. See Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd and Others HH 108/06. See also Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H) at 442 D-E.

            In casu the issue is whether or not the first respondent had a direct and substantial; interest in the subject matter of the action, i.e. legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.

            The only reference to the fourth respondents in the applicant’s founding papers is in para 10, 18 and 19. In para 10 the fourth respondent is identified. In paras 18 and 19 the fourth respondent is mentioned, in passing, as a rival union to the first respondent and that the unions have clashed over the membership of the applicants’ employees. A perusal of the Provisional Order will reflect that no relief is being sought by the respondent.

            There is no averment in the applicants’ as submitted, papers that no order is being sought against the fourth respondent and that it had been cited an interested party. It is clear from the above that the fourth respondent has no direct and substantial legal interest in the subject matter of the judgement that this court might make. The applicants can carry into effect, the judgement, without adversely affecting the position of the fourth respondent. This is a typical case of misjoinder where a party who is not necessary is joined to proceedings.

            The applicants cannot escape an order to indemnity the fourth respondent, for the expenses to which he has been put through having to defend this application. This could have been avoided by averring in the founding papers that no relief was being sought against the fourth respondent and has been cited as an interested party. The fourth respondent would not have filed papers in opposition. The point in limine is upheld and the applicants are to pay the fourth respondents costs.

            The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

            Mr Magwaliba contended that in terms of s 89 (6) of the Act the Labour Court was given exclusive jurisdiction to entertain labor disputes. In terms of s 104 of the Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of s 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of s 107. It further contended that in terms of s 106 (2) (b), the second respondent can issue interim orders which include suspension of the collective job action.

            The applicants seek to interdict the fourth respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of s 104.

            Mr Magwaliba further submitted that the relief that the applicants seek is available in the Labour Court. Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief. In para 3 they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Act.

            Mr Magwaliba further submitted that the applicants had not exhausted the available domestic remedies. They could appeal in the Labour Court in terms of s 110 (1). The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties. Why should they then bring this issue before this court.

            He further contended that whilst the court has residual powers to grant declarators and interdicts, in casu, show cause orders are specifically provided for in the Act.

            On his part, Mr Rutanhira submitted the this Act does not confer on the Labour Court the power to grant interdicts. The applicants sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather the second respondent came up with a parrarel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

            He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amount to a disposal order.

            He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed off. He made reference of s 4 (1) of Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority. He contended that s 110 of the Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH 125/15 where Mathonsi J fond that s 171 (a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by s 89 (6) of the Act.

Jurisdiction

            Section 89 (6) provides as:

“No court, other than the Labour Court shall have jurisdiction in the first instance to hear and determine an application, appeal or matter referred to in subsection (1).”

            It was settled position in our law that the High Court or any other court has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Act. See Tuso v City of Harare 2004 (1) ZLR, and Border Timbers (Pvt) Ltd v Export Processing Zones labour Board and Others SC46/09. This was the position until the Confederation of Zimbabwe Industries (supra)judgment wherein Mathonsi J expressed the view that s 171 (1) of the Constitution re-instated the jurisdiction of the High  Court over labour matters.

            In Stanley Machote v Zimbabwe Manpower Development Fund HH 813/15, Tsanga J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to the Confederation of Zimbabwe Industries case (supra).

            At p 4 of the cyclostyled judgment she had this to say:

      “As stated, when a court has original jurisdiction this refers to its standing and right to           hear     a case as the first court of first instance. Constitutionally, the High Court has indeed    been conferred with unfettered power to exercise original jurisdiction in all civil and         criminal matters as argued by the respondent. Such original jurisdiction is exercisable    even in matters            regulated by statute. However, whilst s 171(1) (a) does confer upon the        High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe,             this overall authority also has to take into account other applicable constitutional             provisions        as well as legislation force that in reality places some breaks or limits on its exercise of             original jurisdiction in specific instances.

      Thus, s 172 (2) of the Constitution gives the Labour Court “jurisdiction over labour matters             as conferred by an Act of Parliament”. The applicable Act of Parliament in labour        matters             is the Labour Act [Chapter 28:01]. As stated, its s 89 (6) clearly confers on the      Labour Court   jurisdiction in the first instance jurisdiction to hear and determine any           applications, appeals or           other matters stipulated in that Act. The Labour Act is thus a       delegated piece of legislation in           labour matters in terms of which it is empowered to determine all labour matters as a court             of first instance and as also as a court of appeal.

            It can be said that at least in labour matters there is express legislative exclusion by an       Act of Parliament of the High Court’s original jurisdiction that is envisaged by s 171.       In the face of what is tantamount to legislative exclusion of the High Court’s original       jurisdiction in labour matters, there would have to be a powerful “need” for upsetting    the implied exclusion of the High Court’s original jurisdiction in labour matters. It is     not the             intention of in granting the High Court original jurisdiction to create             unwarranted conflict   with legislation in force.

I agree entirely with the sentiments expressed by Tsanga J. Provisions of the Constitution cannot be read in isolation. If s 171 (1) is read with s 172 it becomes clear that “all matters” in s 171 (1) excludes matters over which a specialized court, such as the Labour Court is established. The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court. This would render the establishment of specialized courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is labour dispute subject to resolution by the Labour court. The parties are agreed that the dispute between them viz the threat to go on a collective job action, is labour dispute, can be dealt with in terms of the Act by the Labour Court.

Section 104 (1) of the Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in s 104 (2).

Section 106 provides:

            “106 Show cause orders

1. Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a “responsible person”) threatens, recommends, encourages, incites, organises engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an “unlawful collective 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 action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto:

Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

1. A show cause order-

1. Shall specify-

1. The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and
2. The order or action desired or proposed;

1. May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed or suspended.”

In terms of s 107 the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of s 106 and the second respondent has not determined the mater. They contend that the second respondent has failed to offer an alternative effective remedy. They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of s 4 of the Administrative Justice Act. That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief. I agree with Mr Rutanhira that they cannot proceed in terms of s 110 of the Act as the second respondent has not made a determination. Section 4 of the Administration Act provides:

“4. Relief against administrative authorities

1. Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.
2. Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate-

1. confirm or set aside the decision concerned;
2. refer the matter back to the administrative authority concerned doe consideration or reconsideration;
3. direct the administrative authority to take administrative action within the relevant period specified by law or if no such period is specified, within a period fixed by the High Court;
4. direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;
5. give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

1. Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.
2. The High Court may at any time vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu, to comply with the provisions of s 3.

Section 3 provides:

“3. Duty of administrative authority

1. An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall-

1. act lawfully, reasonably and in a fair manner; and
2. act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and
3. where it has taken action, supply written reasons therefor within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in s 4 (2). This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of s 4 (2), (c) and (e). The matter could have then proceeded in terms of s 106 of the Act. In terms of s 106 (2) (b) the second respondent has power to issue interim measures such as the termination, postponement and suspension of the collective job action. The applicants chose to go along with the parallel process adopted by the second respondent and adandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts, in casu, show cause orders are specifically provided for in the Act and  can provide the same remedies that the applicants seek in this court.

In any event asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of s 104.

In para 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result I will make the following order

1. The fourth respondent
2. The application is dismissed.
3. The applicants to pay the costs of the first respondent and the fourth respondent. 

Scalen & Holderness, applicants’ legal practitioners

Mangwana & Partners, 1st respondent’s legal practitioners

Civil Division, 2nd respondent’s legal practitioners

Tamuka Moyo Attorneys, 4th respondent’s legal practitioners