REPORTABLE
(58)
Judgment
No S.C. 52\2002
Civil
Application No 260\98
AMOS
NGULUBE v (1) ZIMBABWE ELECTRICITY SUPPLY
AUTHORITY (2) THE MINISTER OF THE PUBLIC
SERVICE,
LABOUR AND SOCIAL WELFARE
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA, CHEDA JA, MALABA JA & GWAUNZA AJA
HARARE
JUNE 4 & SEPTEMBER 17, 2002
A.P.
de Bourbon S.C., for
the applicant
P.
Nherere,
for the first respondent
No
appearance for the second respondent
CHIDYAUSIKU
CJ: In this application, made in terms of s 24(1) of the
Constitution of Zimbabwe, the applicant seeks an order
in these
terms:-
It
is ordered that:-
A
rule
nisi
do issue calling upon the Minister of Labour and Social Welfare to
show cause why -
Section
45(1)(b)(i) and the proviso to s 23(1) of the Labour Relations Act
Cap 28:01 should not be declared to be in contravention
of s 21(1)
of the Constitution of Zimbabwe.
Section 21(1) of the Constitution
of Zimbabwe is contained in the Declaration of Rights and provides as
follows:-
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 his interests.
The
background to the matter is as follows:
In January 1995, the applicant
was engaged by the respondent as an Accounting Officer. This placed
him in the category of the respondents
employees referred to as
managerial. Some time later the applicant joined a workers
committee considered by the respondent
to be appropriate for
employees falling outside the category of managerial employees. For
this reason a letter (Annexure 1(a))
was written to the applicant, by
the respondents Area Manager, stating and directing as follows:-
As
you are a managerial employee you cannot serve as a workers
committee representative. Therefore you are advised to resign
from
the workers committee with immediate effect. Please send a copy
of your resignation letter to me by Wednesday 14th
May 1997.
Because
the applicant disputed that he held the position of a manager, he
refused to resign from the workers committee as directed.
He
was, as a result, suspended from his employment without pay and
benefits, with effect from 11th
July 1997. A disciplinary hearing was subsequently held, with the
applicant facing, among others, charges of contravening sections
of
the relevant Code of Conduct relating to disobeying lawful
instructions given by an immediate superior and wilfully failing,
neglecting, or refusing to comply with any of the Authoritys
(respondents) regulations, laid down policies or procedures,
written
standing instructions or rules.
The
Disciplinary Committee found the applicant guilty of a Charge D
offence, a circumstance that called for his dismissal with
effect
from his date of suspension. He was duly dismissed.
Although
the applicant instituted separate proceedings in the Labour Tribunal
challenging his dismissal, he contends, in the proceedings
before
this Court, that his right to freedom of assembly and association
guaranteed in s 21 of the Constitution, has been infringed
by s
45(1)(b) and by the proviso to s 23(1), of the Labour Relations Act
[Chapter 28:01].
The
application was opposed by both respondents, although only the first
respondent was represented at the hearing of this matter.
The
second respondent, despite filing heads of argument, did not make any
appearance.
Section
45(1)(b)(i) of the Labour Relations Act
I will deal first with the
applicants claim in relation to Section 45(1)(b)(i) of the Labour
Relations Tribunal Act.
The relevant part of this
section reads as follows:-
(1) In any determination of
the registration or certification of a trade union or employers
organisation or of the variation, suspension
or rescission thereof,
the Registrar shall -
ensure
compliance with the following requirements
a
trade union shall not represent employers or managerial employees
Mr
de Bourbon
for the applicant contends that by prohibiting a trade union
representing employers or managerial employees, the section
specifically
conflicts with the rights guaranteed in terms of s 21(1)
of the Constitution. That being the case, Mr de
Bourbon argues, the
contention of the first respondent that the applicant was, as a
managerial employee, not entitled to be a member of the
workers
committee, was in effect a contention that the applicant was not
entitled to be a member of a trade union.
While
the latter part of Mr de
Bourbons contention
may, in practical terms, be true, I am not persuaded that the
interest of the first respondent in barring the applicant
from
belonging to the workers committee in question was to prevent him
from becoming a member of a trade union. There is nothing
in the
evidence before the court to suggest such an intention. Rather, it
is evident the first respondent was interested primarily
if not
solely, in the composition of a workers committee that existed to
represent some of its workers. In that respect I find
the first
respondent was within its rights to attempt to ensure that the
proviso to s 23 (1) of the Labour Relations Act was enforced
within
its precincts. The applicant himself, in any case does not suggest
that he had joined the workers committee in question
simply to be
able to join a trade union. Such a suggestion would in any case not
have been tenable since the Labour Relations Act
does not require
that a worker should join a workers committee as a condition to
being able to belong to a trade union.
Therefore,
since the applicants competency or otherwise to join a trade union
has nothing to do with whether or not he belonged
to any workers
committee, I find there is nothing to justify his use of the action
taken by the first respondent (which relied
on the proviso to s 23(1)
of the Act) as a basis for challenging the constitutionality of a
different section i.e. s 45(1)(b)(i),
of the same Act.
Mr
Nherere
takes this argument further and contends that, because the first
respondents actions were not based on s 45(1)(b)(ii), but the
proviso to s 23(1), of the Labour Relations Act, this Court is not
obliged to rule on the constitutionality or otherwise of s
45(1)(b)(i).
I find this contention, which essentially is to the
effect that there must exist a dispute between the parties before the
court
can make a declaratory order of the type sought by the
applicant in casu,
not supported by case authority. Herbstein
and van
Winsen
note at page 1053 that even though in the past courts consistently
held that such an order could not be granted in the absence of
a
dispute, the learned judge in Ex
parte Nell
departed from this stance and held that an existing dispute was not a
prerequisite to the making of a declaratory order. On the
same
note, in Ex parte Chief
Immigration Officer, Zimbabwe,
GUBBAY CJ noted that in an application of this nature, there need not
be an opponent, and that the court may determine the applicants
rights without the necessity for it to pronounce upon the
respondents obligations. In Ex
parte Ginsberg,
cited with approval in Ex
parte Chief Immigration Officer, Zimbabwe, supra,
the court held that a declaration of rights could be granted on an ex
parte application.
These
authorities are particularly relevant in this case where the first
respondent is not, in the strictest sense, an opponent
in
relation to the applicants challenge to section 45(1)(b)(i) of the
Labour Relations Act, and where the second respondent, who
might
possibly have been an opponent, did not appear to argue its case.
In
the absence of a dispute, as in casu,
the authorities
are agreed that the requisites for the grant of such an order are:-
that
the applicant has an interest in an existing, future or
contingent right or obligation and, if the court is satisfied
on
that point,
that
the case is a proper one for the exercise of the courts decision.
It is within this context that
the other part of the applicants challenge to s 45(1)(b)(i) is to
be considered.
In that respect it is contended
as follows for the applicant:-
It is respectively submitted
that such a prohibition (that a trade union cannot represent
employees or managerial employees) specifically
conflicts with the
rights given in terms of section 21(1) of the Constitution. A law
cannot prevent managerial employees from forming
a trade union.
Whether it can prevent employers from forming a trade union is
another matter. But certainly managerial employees
cannot be
prevented from belonging to a trade union. It is to be noted that
section 45(1)(b) does not provide for any form of representation
by
way of a trade union for managerial employees. This is contrary to
the Constitution. Those managerial employees who wish to
form and
belong to a trade union are entitled to do so in terms of the
constitution.
The
challenge, whatever its merits or demerits, is expressed in general
terms and not in relation to any specific action taken
or
contemplated by or against the applicant. This raises the question
of the applicants interest, a point upon which, on the
authority
of the cases cited above, the court must first satisfy itself, and
also given s 24(1) of the Constitution, which provides
that a person
may apply to the Supreme Court for redress if in that persons view
the Declaration of Rights has been, is being,
or is likely to be
contravened in relation
to him. (my
emphasis)
In
Family Benefit Society
v Commissioner for Inland Revenue
where the court considered the issue of interest it was stated:-
The interest must be a real
interest, not merely an abstract of intellectual interest.
Indeed
there is a plethora of authorities to the effect that courts will not
deal with abstract, hypothetical or academic questions
in proceedings
for a declaratory order.
In Adbro Investment
Co Ltd v Minister of the Interior and Others
the court stated that the plaintiff must not have a mere academic
interest in the right or obligation in question but that:-
some
tangible
and justifiable advantage in relation to the applicants position
with reference to an existing{,}future or contingent legal right
or
obligation must appear to flow from the grant of the declaratory
order sought. (my emphasis)
I
find these dicta
to be apposite in the present case. The applicant has not indicated
he has contemplated or even that he is at some future date
going to
contemplate or attempt, to join, form or register a trade union.
Trade unionism, by its nature pre-supposes a grouping
or groupings of
workers with similar interests, who associate for the purpose of
advocating and advancing their special interests.
Assuming his
interest were to form or register a trade union of managerial
employees, the applicant has not suggested that such
a group already
exists within his or other workplaces, nor that such a group, if it
existed, was interested in, was contemplating
or had contemplated,
forming or registering such a trade union. His argument, in effect,
is that should some undefined managerial
employees who include him,
wish at some future date to form, belong to or register a trade
union, they would find their way blocked
by s 45(1)(b)(i)of the Act.
Given
this context, I find the applicants to be no more than an idle
interest, not grounded in any past, present or future action
that he
may wish to take or that may be taken against him and/or the
undefined managerial employees on whose behalf he purports to
make
the present application. There is therefore nothing to suggest that
the ruling of the court, were it to be in his favour,
would result in
some tangible advantage to them, flowing from such ruling. In other
words there is no indication that such a ruling
would not end as a
purely academic exercise.
There
is also the requirement that the courts ruling should be binding
on those alleging an interest in the relief sought.
This
requirement is succinctly set out in Family
Benefit Friendly Society v Commissioner for Inland Revenue, supra,
as follows at page 125H-J:-
The court will not make a
declaration of rights unless there are interested persons upon whom
the declaration would be binding.
It follows that interested
persons against whom or in whose favour the declaration will operate
must be identifiable and must have
had an opportunity of being heard
in the matter. Ex
parte Van Schalkwyk NO and Hay NO
1952 SA 407 (A) at 411 C & D; Anglo-Transvaal
Collieries Ltd v South African Mutual Life Assurance Society
1977 (3) SA 63 (T) at 636 C-F and see 1977 (3) SA 642 A at 655 D.
The
applicant, it has already been noted, has not indicated whether he
has identified others in the category of managerial employee
either
within his own workplace or in others, who were desirous of forming,
joining or registering a trade union, or who had contemplated
or
attempted to do so. Nor is there any indication that such employees
can be identified. The order sought would therefore not
be binding
on the applicant (who on the papers has shown no intention of
exercising the right in question) nor on other managerial
employees
who, apart from being undefined, have not evinced an interest in the
relief sought. They have not been heard, nor, assuming
they share
the applicants interest, have they had an opportunity to explain,
for example, whether and why, they may not feel that
their needs are
adequately catered for by s 45(1)(b)(ii). This section provides
that an employers organisation shall not represent
employees other
than managerial employees. Therefore, the issue of whether or not
these employees may ever be interested in exercising
the right sought
by the applicant, is left to speculation.
When
all is said and done, I find, in the final analysis, that the
applicant has failed to prove that he has the requisite interest
in
the subject matter of the part of the application regarding s
45(1)(b)(i) of the Labour Relations Act. Without that interest,
the
authorities consulted suggest the applicant, may, further, not have
locus standi
in making the application in question.
I
would therefore and in that respect, dismiss the application.
In
the light of this finding it is not necessary for me to go to the
second stage of the enquiry in matters like this, which is
whether or
not the case is a proper one for the exercise by the court of the
discretion conferred on it.
Section
23(1) of the Labour Relations Act
I
will now turn to the applicants application in relation to the
proviso to s 23(1) of the Act.
Mr
de Bourbon, for
the applicant, contends that the proviso is unconstitutional in as
much as it puts restrictions concerning who can associate within
a
(general) workers committee.
Section
23(1) reads as follows:-
employees employed by any one
employer may appoint or elect a workers committee to represent
their interests:
Provided
that no managerial employee shall be appointed or elected to a
workers committee, and nor shall a workers committee
represent
the interests of managerial employees unless such workers
committee is composed solely of managerial employees appointed
or
elected to represent their interests.
Mr
Nherere
for the first respondent contends, to the contrary, that the proviso
is not ultra vires
the Constitution. He advances the following arguments to support
this contention:-
that
the workers committee that the applicant, as a managerial
employee, is precluded from joining is a creature of statute,
which
does not include both managerial and non-managerial employees; and
that
even if it is held that the proviso to s 23(1) is inconsistent with
s 21(1) of the Constitution, it is still not unconstitutional
as it
comes within the ambit of the derogations permitted by s 21(3)(B) of
the Constitution in that it is designed for the purpose
of
protecting the rights of other persons.
In this latter respect Mr Nherere
asserts that the applicant is, in effect, seeking that the definition
of workers committee in the Act should do away with the
distinction between managerial and non-managerial employees. He
contends that the purpose of a workers committee is to represent
the rights and interests of the workers in dealings with the
employer. Where the latter is a juristic persona,
the employer would be represented by the management in negotiations
with the workers committee. Thus, Mr Nherere
contends, if managerial employees were to be allowed to join ordinary
workers committees, there might be a conflict of interest
with the
same member of the workers committee seeking to represent the
interests of both management and the workers, especially
in matters
relating to collective bargaining and recommendations for collective
job action. To the extent that the proviso to s
23(1) of the Act
was designed for the purpose of protecting the rights of both workers
and employers, Mr Nherere
contends, it was a derogation permissible in terms of s 21(3)(b) of
the Constitution. Such proviso was, therefore, reasonably
justifiable
in a democratic society. Mr Nherere
cited a number of authorities, including Nyambirai
v National Social Security Authority and Anor
where the court set
out the criteria to be considered in determining whether or not a
derogation from a constitutionally guaranteed
right is permissible in
the sense of not being shown to be arbitrary or excessive.
I
find much merit in Mr Nhereres
submissions.
The
applicant, in his papers, accepts that he is a managerial employee.
In other words he does not submit that he is a non-managerial
employee who has been denied the right to join a workers committee
whose purpose was to represent and advance the interests of
such
employees. His contention is, rather, that regardless of being a
managerial employee who is free, by virtue of the proviso
to s 23(1)
of the Labour Relations Act, to join a workers committee
consisting entirely of managerial employees, he should, nevertheless,
be allowed to join and be a member of a workers committee for
non-managerial employees.
The
applicant thus wants to remain a managerial employee yet participate
in the activities of a committee whose primary purpose
is to
represent the interests of non-managerial employees. By
implication, the applicant is saying management, whose interests
are
of necessity different from those of general workers, should be free
to join the latters workers committee. By the same
token and
further, that the reverse should also be allowed, that non-managerial
employees should be free to join a workers committee,
where it
exists, consisting of managerial employees.
I
am not persuaded that there is merit in this reasoning.
It is trite that in any work
situation there is a divide between managerial and non-managerial
employees not only in terms of responsibilities
but also interests
and rights. As correctly contended for the first respondent, this
demarcation is designed to ensure orderliness
in the running of the
business/operation concerned. Needless to say, it also creates an
environment that ensures that the interests
and rights of different
categories of workers are articulated or identified, and specifically
addressed, thereby reducing the potential
for labour unrest. The
legislative provision complained of reinforces this demarcation and
for the same practical reasons.
As correctly contended by Mr
Nherere
s 23(1) of the Labour Relations Act creates a workers committee
which it vests with the special responsibility to represent the
interests and rights of non-managerial employees. It also, in the
same breath, creates the potential for the creation of another
workers committee to represent the special interests of managerial
employees. It specifically provides that workers belonging
to the
two different categories should not sit on the workers committee,
and therefore attempt to represent the interests, of
workers
belonging to a category they do not fall into. The effect of this
provision is that workers are free to appoint from those
belonging to
their category, a workers committee to represent their interests
and rights, in other words, interests and rights
that are peculiar to
their special category of workers.
Viewed in the context of s 21(1)
of the Constitution there is merit in the contention made for the
first respondent that the applicants
eligibility to join a
workers committee has not been interfered with. Rather, the
effect of the impugned proviso is to vary
such eligibility to the
extent that the applicant is rendered eligible to join a workers
committee of managerial employees.
In
Re Munhumeso and Others,
which is cited as authority for the test in determining whether a law
abridges a fundamental right or freedom, GUBBAY CJ stated
at p 62
of the judgment:-
The test in determining
whether an enactment infringes a fundamental freedom is to examine
its effect and not its object or subject
matter. If the effect of
the impugned law is to abridge a fundamental freedom, its object or
subject matter will be irrelevant.
The
object of the proviso complained of as already indicated, is to
ensure that the interests of different workers are separately
articulated and represented. However, on the authority of
Munhumesos case,
supra,
this object would be irrelevant if the effect of the proviso in
question has is to abridge a fundamental right or freedom. The
question that then has to be answered is whether the proviso, in
creating a committee to deal with the interests of different
categories
of workers in the sense of separate but equal
treatment, abridges the workers fundamental rights, specifically
the applicants
fundamental right to freedom of association? I
am not persuaded that it does.
My interpretation of s 21(1) of
the Constitution is that it guarantees every individual the right of
freedom of assembly and association,
not simply for the sake of it,
but for the sake of protecting his interests. The right is
therefore, in that sense, qualified and
restricted to such
association as is meant to protect the interests of the individual
concerned. In casu,
the applicant has not indicated that he disputes the fact that the
rights and interests of managerial employees are different from
those
of non-managerial employees. He has not challenged the argument
that the interests of non-managerial employees are best,
and
appropriately, represented by a committee consisting of
non-managerial employees. By the same token, the applicant does not
dispute that the interests of managerial employees are best
represented by other managerial employees. I find in this respect
that
the proviso to s 23(1) of the Labour Relations Act in effect
conforms with the spirit of s 21(1) of the Constitution by upholding
the right of the applicant to associate with workers sharing his
interest, i.e. managerial employees in a workers committee
composed
of such workers.
However,
even if the proviso were to be interpreted to mean that the
applicants fundamental right of association has been abridged,
the
point has correctly been made for the first respondent that such
proviso, in any case, was within the ambit of the derogations
permitted by s 21(3)(b) of the Constitution which provides as
follows:-
(3) Nothing contained in or
done under the authority of any court shall be held to be in
contravention of subsection (1) to the extent
that the law in
question makes provision -
for
the purpose of protecting the rights or freedoms of other persons;
except so far as that provision
or, as the case may be, the things done under the authority thereof
is shown not to be reasonably
justifiable in a democratic society.
Mr
Nherere submits,
correctly in my view that the word rights in paragraph (b) is
not limited to the fundamental rights enshrined in Chapter
3 of the
Constitution, but should be given its ordinary jurisprudential
meaning. Viewed in this light it is logical to assume that
non-managerial employees have the right to have their interests
represented by those of their colleagues who share and, therefore,
fully appreciate their needs and interests. The involvement of a
managerial employee whose interests they may not share would,
in my
view, undermine such right. To that extent, the proviso to s 23(1)
of the Labour Relations Act does make provision for the
protection of
the rights and freedoms of other persons, that is, the non-managerial
employees. This means that the possibility
of a conflict of
interest where the same member of the workers committee might seek
to represent the interests of both management
and workers is
eliminated.
By virtue of s 21(3) this
provision would be unconstitutional only if its effect were shown not
to be reasonably justifiable in a
democratic society.
The
effect of the proviso to s 23(1) of the Labour Relations Act as
already indicated, is to ensure that the interests of managerial
and
non-managerial employees are represented equally but separately, ie,
through the medium of representatives who share the same
interests
and concerns. I therefore find merit in the contention made for the
first respondent that the proviso complained of was
clearly designed
for the purpose of protecting the rights of both workers and
management employees and is for that reason reasonably
justifiable in
a democratic society.
Counsel
for the first respondent cited a number of authorities outlining the
criteria the court should use to determine whether
or not the
provision is permissible in the sense of not being shown to be
arbitrary or excessive (Woods
and Others v Minister of Justice, Legal and Parliamentary Affairs &
Others;
Nyambirari v National Social Security and Another).
Briefly these are:
that
the legislative objective is sufficiently important to justify
limiting a fundamental right;
that
the measures designed to meet the legislative objective are
rationally connected to it, and
that
the means used impair the right or freedom no more than is necessary
to accomplish the objective.
I am satisfied, in casu,
that these criteria are fully satisfied. In this respect I would
concur with the following contention made on behalf of the first
respondent:-
The purpose of the proviso to
s 23(1) is to protect and promote the interests of workers vis-a-vis
the employer and, to facilitate
the smooth functioning of collective
bargaining. Such rights are better protected by ensuring that
workers committees representing
non-managerial employees have no
managerial employees on them and, the right and interests of
managerial employees are protected
and promoted by workers
committees representing managerial employees only. It is,
therefore, perfectly rational to insist that
managerial employees may
not be members of ordinary workers committees.
I
am persuaded that the proviso does no more than is necessary to serve
this desired purpose. To the extent that managerial employees
are
not precluded from forming their own workers committee to
represent their
rights,
I am not satisfied the infringement of his freedom of assembly that
the applicant alleges (even if he were correct) is excessive.
When
all is considered, I am satisfied in all respects, that the impugned
proviso to s 23(1) of the Labour Relations Act does not
contravene s
21(1) of the Constitution.
In relation to costs the
applicants prayer is that should the application succeed, he be
paid his costs, but that each party should
bear its own costs in the
case where the application is dismissed. The first respondent, in
praying that the application be dismissed,
has not asked that it be
awarded costs. There will, accordingly, be no order as to costs.
The applicant having failed to
prove a case for the relief sought, the application is, accordingly
dismissed.
SANDURA
JA: I agree
CHEDA
JA: I agree
MALABA
JA: I agree
GWAUNZA
AJA: I agree
Gill
Godlonton & Gerrans,
applicants legal practitioners
Ziumbe
and Mtambanengwe,
first respondent's legal practitioners