Mangaliso Godwell Nkunika (Suing as General Secretary of the Zambia and Taxi Workers Union) v Capital Buses (Appeal No. 143/2022) [2024] ZMCA 250 (27 June 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE Appeal No. 143/ 2022 (Civi l Jurisdiction) BETWEEN: MANGALISO GODWELL NKUNIKA (Suing as General Secretary of the Zambia Bus and Taxi Workers Union) APPELLANT AND 2 7 JUN 2024 CAPITAL BUSES RESPONDENT Coram: Kondolo SC, Majula & Banda-Bobo, JJA On 23rd May 2024 and 27th June, 2024 For the Appellant: In Person For the Respondent: No appearance JUDGMENT MAJULA J A delivered the J udgm en t of the Court. Cases referred to: l. Kenya Scientific Research International Technical and Allied Institutions Workers Union vs Kenya Agriculture Research Institute and Another (2013) e-KLR 2. Zambia Railways vs Pauline S. Mundia and Another SCZ Appeal No.189 of 2004 3. Anderson Kambela Mazoka & 2 Others vs Levy Patrick Mwanawasa and 2 Others (201 OJ ZR. Vol. 2, 339 J2 4. Nkhata & Others vs Attorney-General (1960) ZR.124 5. United National Union of Private Security Employees and Another vs Panorama Security and Another SCZ Appeal No. 96 of 2013 6. Bob Zinka vs The Attorney-General (1990-1992) ZR 73 Legislation referred to: 1. The Constitution of Zambia, Act No. 2 of 2016 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia 1.0 Introduction 1.1 This matter anses from a collective agreement and the subsequent withdrawal by members in the form of withholding of monthly su bscriptions to the Union by the respondent. 1.2 By this appeal, the appellant is challenging the decision of E. MwansaJ, which was rendered on 4 th February 2022 wherein he had declined to grant the reliefs sought by the appellant. 2 .0 Background 2.1 The appellant approached the Industrial Relations Court Division of the High Court by way of complaint filed on 20th October 2016. By that suit, the appellant sought a declaration th at the respondent's action to with hold employees' monthly subscriptions to the Union was illegal, hence it should be nullified. The appellant further lamented that the Collective Agreement that existed between the two J3 parties expired on 30th June 2015 and the respondent was not cooperating to have it renewed. 2 .2 In its answer to the complaint, the respondent acknowledged that its employees were members of the Zambia Bus and Taxi Workers Union. In a letter dated 29th June 2016, the employees informed the respondent that they were no longer part of the appellant's union and that no monthly subscriptions should be deducted from their salaries. It is on this basis that it stopped remitting monthly subscriptions. 3.0 Proceedings in the High Court 3.1 The Complainant called the witness CWl. The evidence recounted in court replicated the contents of the complaint. 4.0 Decision of the lower Court 4.1 The learned Judge examined the evidence that was presented by the parties. More pointedly, the lower court considered the letters that were authored by the Branch Secretary on behalf of the respondent's employees that were sent to the appellant, Zambia Congress of Trade Unions, and the respondent. From the said letters, the court concluded that the employees had decided to pull out of the appellant Union and therefore instructed the respondent to stop further deductions. 4. 2 It was on this premise that the court was of the view that there was no illegality when the respondent refused to deduct J4 and send money to the appellant, as the employees had withdrawn from the agreement to deduct funds from their wages towards the union. The court therefore declined all the appellant's claims. 5.0 Grounds of Appeal 5.1 Displeased with the outcome, the appellant filed a notice of appeal based on two grounds set out as follows: "l. The Honourable High Court Judge erred by basing his judgment on the seven letters by the Branch Committee Secretary instructing the employer to stop deducting money from them and giving the Union. 2. The lower court Judge further erred by closing the case without hearing the evidence of two key witnesses despite being fully aware of the same." 6.0 Appellant's Arguments 6.1 In the arguments that were filed in support of the appeal, the appellant submitted concerning ground one that the lower court overlooked the provisions of section 22(2) of the Industrial and Labour Relations Act which obligates an employee who has decided to withdraw from the agreement to give three (3) months' notice in writing to the trade union concerned. JS 6.2 It was contended that it was not the duty of the branch Secretary to instruct the employer on matters of subscriptions or resignation on behalf of the employees as they were supposed to individually write letters of withdrawal. 6 .3 Regarding ground 2, the thrust of the appellant's argument was that the witnesses were heading to court when the court decided to close the case and not allow any further evidence to be adduced. We were thus urged to allow the appeal. 7.0 Respondent's Arguments 7 .1 In answer to the appellant's submissions, the respondent argued that an employer can only deduct money from an employee once there is an express agreement. This is under section 22(1) of the Industrial and Labour Relations Act. 7 .2 The respondent further submitted that an employee has a Constitutional right to terminate their membership in a union at any time. To cement t h e position, we were referred to Article 21(1) of the Constitution of the Republic of Zambia which en acts that except with his consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association. To persuade us on the submission, the case of Kenya Scientific Research International Technical and Allied Institutions Workers Union vs Kenya Agriculture Research Institute and Another1 delivered by the Supreme Court of Kenya was J6 called in aid for the proposition that an employee has a right to join and leave a trade union freely. 7 .3 Based on the aforesaid, it was contended that the learned trial Judge was on firm ground when he held that there was no illegality on the part of the respondent when they stopped deducting money from employees. 7.4 Turning to ground two, the respondent avowed that ther e was no misdirection on the part of the lower court when it closed the case without hearing the respondent's two witnesses. This is because t h e onus to prove the claim lies on the a ppellant and not on the respondent. In line with th e preceding submission, the cases of Zambia Railways vs Pauline S. Mundia and Another2 and Anderson Kambe la Mazoka & 2 Others vs Levy Patrick Mwanawasa and 2 Others3 were cited as authority. 7.5 The respondent's submission, in conclusion, was that an appellate court rarely interferes with findings of fact made by a trial court unless they fall in one of the criteria set out in Nkhata & Others vs Attorney-General4 • 7 .6 We were accordingly urged to dismiss the appeal with costs. 8.0 Hearing of the Appeal 8.1 The matter came up for hearing on 23rd May 2024 and we were notified by the appellant that he h ad just served the cou rt documentation on the respondent who had indicated J7 they would not attend the proceedings. In the spirit of fairness, we adjourned the matter and ordered that the respondents be afforded an opportunity to file their heads of arguments not later than 13th June 2024 and the appellant to file a reply if any, not later than 18th June 2024. Thereafter we would proceed to render our judgment based on the documents filed. 9.0 Decision of the Court 9 .1 We have considered the appeal, the evidence in the lower court, and the heads of arguments filed by the appellant in this appeal. 9.2 In ground one, the appellant is grieved by the fact that the lower court accepted the notice by the branch Secretary to the respondent to stop union fee deductions. The bone of contention is that the withdrawal was not in compliance with section 22(2) of the Industrial and Labour Relations Act. 9 .3 In determining this ground of appeal, we have scrutinized section 22(2) of the Act which for ease of reference, provides as follows: ((An eligible employee may, at any time, withdraw the agreement referred to in subsection (1), by giving three months' notice, in writing, to the trade union concerned." 9 .4 It is crystal clear that in terms of section 22(2) an eligible employee may at any time decide to withdraw from an agreement to deduct subscription fees to a trade union. The J8 procedure that the affected employee may follow is to give three (3) months' written notice to the trade union concerned. 9.5 In casu, the employees of the respondent petitioned Mr. Joseph Mwanakatwe who thereafter wrote a composite notice to withdraw, addressed to the Zambia Congress of Trade Unions and the respondent. The reason stated was that the appellant union was not conducting affairs according to their expectation. Based on that letter, the respondent stopped deducting subscription fees. 9.6 The question that arises is whether a composite notice which does not specify (3) months would fall within the ambit of the provisions of section 22(2) of the Act. In the case of United National Union of Private Security Employees and Another vs Panorama Security and Another5 the Supreme Court expressed itself on this issue as follows: "When we read section 22, we do not see the provision that stipulates that each employee who intends to withdraw must write his own letter. Neither do we see any provision which bars employees from writing a composite notice. Coming to the provision that requires three months' notice, the fact that the composite notices did not provide for three months was not fatal. The two respondents should have merely reminded the employees that in accordance with the law, their withdrawal would only take effect after three months." J9 9. 7 From the guidance of the Supreme Court, it is our firm view that there was nothing wroing with those who wish ed to withdraw from the union by issuing instructions to the employer by using a composite letter. However, the employer ought to have reminded the employees that their withdr awal would only take effect after three months. 9.8 Furthermore, we find the sentiments articulated in the case of Kenya Scientific Research International Technical and Allied Institutions Workers Union vs Kenya Agriculture Research Institute and Another1 called in aid by the respondent to be insightful wherein it was held that: "Recognition of trade unions rests on freedom of association. Employees have the right to join and leave trade unions. Recruitment is a continuous process. Even where an employer has formally granted trade union recognition, employees belonging to that recognized trade union are not barred by any law from shifting allegiance to another trade unwn. Freedom of Association acknowledges the right to associate is co-joined to the right to dissociate; just as much as the right of recognition includes the right of de-recognition. Employees look at the trade union that is best placed to articulate their collective rights and interests of the moment, and do not take a lifelong vow of fidelity, by joining any one trade union." 9.9 To put it plainly, employees have a right to leave one trade Union and join another. In this instance, it was expressed by Jl0 way of a composite notice. The case of the United National Union of Private Security Employees and Another vs Panorama Security and Another5 has settled the question of composite notices. 9.10 However, the trial Judge should have gone further and abided by the guidance given by the Supreme Court in the United National Union5 case that the respondent should have advised the employee that the deductions would only stop after three months because section 22(2) of the Labour Rules Act requires the employer to give three months ' notice. In light of the foregoing ground one succeeds. 9.11 The contention in ground two is that the court below erred by closing the case without hearing the evidence of two key witnesses from the respondent. 9.12 We are alive to the fact that a party to litigation has a right to be heard as it is a tenet of natural justice. This is in line with Article 18 of the Constitution of Zambia which was authoritatively discussed by the apex Court in the case of Bob Zinka vs The Attorney-General6 • However, our examination of the evidence on record reveals that when the matter came up for hearing on 28t h February 2018, the appellant concluded its case and the court adjourned to 4 th December 2018 to allow the respondent to present its case. 9 .1 3 The next proceedings were held on 9 th August 2019 and the respondent was not in attendance. This was even though .. Jl 1 there was an affidavit of service filed by the appellant showing proof that the respondent had been served with the notice of hearing. Based on the foregoing, the learned Judge decided to close the case and adjourn for judgment. 9.14 We do not see anything untoward in the approach taken by the learned trial Judge. We say so on the basis that matters are now judge-driven and the respondents were accorded an opportunity to present their case which they failed to utilize. There must be an end to litigation and a court cannot be adjourning matters endlessly under the guise of according t h e parties a right to be h eard. In any event, it was the respondent that was affected by the closure of the case without having their witnesses heard. We therefore find it strange that the appellant is the one who is aggrieved with the non-production of witnesses by the respondent. The onus lay on the appellant to prove their case or lead evidence in support of their case. They cannot cry foul when the respondents fail to produce any witnesses. 9.15 We , therefore, do not find merit in the second ground of appeal and we dismiss it. 10.0 Conclusion 10. 1 Having been successful 1n ground one, the appeal substantially succeeds. . . 11.0 Costs J12 11. 1 This matter having emanated from the Industrial Relations Division of the High Court, each party will bear their costs. ~ ~ .... .... ~ .......... ~ ............. .. . M. M. Kondolo , SC COURT OF APPEAL JUDGE ........ ~ I ········ ···· COURT OF APPEAL JUDGE .. ········~ ···· ··· ···· ······ A. M. Banda-Bobo COURT OF APPEAL JUDGE