Matildah M. Chilambwe v The Labour Commissioner and Anor (APPEAL/01/2022) [2024] ZMHC 291 (25 November 2024)

IN THE HIGH COURT FOR ZAMBIA APPEAL/01/2022 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: THE LABOUR COMMISSIONER 1 sT RESPONDENT THE ATTORNEY GENERAL 2ND RESPONDENT Coram: Chigali Mikalile J this 25th day of November, 2024 For the Appellant: . In person For the Respondents: No appearance JUDGJVCEWT Legislation referred to The Industrial and Labour Relations Act Chapter 269 Case referred to: Attorney General and Speaker of the National Assembly v. The people (1999) ZR 186 Jl CamScanner Introduction 1. By this appeal, the appellant seeks, among other reliefs, an order to restore a certificate of registration of the National Union for Judicial Workers (NUJW) . 2. The background is that the appellant, in her capacity as interim General Secretary of NUJW and other supporters, duly registered NUJW with the Labour Commissioner on 28 th June 2017. However, the General Secretary of the Judicial and Allied Workers Union of Zambia challenged the registration ofNUJWunder cause APP NO.01/2021. 3. Before the matter under cause APP/01/2021 could be concluded, the Labour Commissioner, who was the 2 nd respondent in that matter, proceeded to de-register NUJW for reasons specified in the letter of cancellation dated 8 th July, 2022. Bewildered by the Labour Commissioner's decision, the appellant filed this appeal seeking the following reliefs: (i) A declaration that the cancellation of the certificate of registration No. 119 in the name of National Union for Judicial Workers is null and void as the same was done by mistake and in breach of the relevant laws of Zambia; (ii) An order directing the Labour Commissioner (lst respondent herein) to restore the certificate of registration No. 119 erroneously cancelled on 8th of July, 2022; (iii) Any other relief the court may deem.fit in the circumstances; J 2 CamScanner (iv) Costs of the appeal. Evidence 4. In the affidavit in support filed into court on 22 nd September, 2022, the appellant, Matildah Mwapc Chilambwe, averred that the Labour Commissioner cancelled the certificate of registration without genuine reasons. The reason advanced by the Commissioner was that the Union failed to comply with its Constitution as well as the provisions of the Industrial and Labour Relations Act, Cap 269 (hereinafter called the Act) by failing to hold an election for its officers and by failing to avail its financial reports. According to the Commissioner, the Union was dormant. 5. It was the appellant's averment that the Union wrote to the Commissioner explaining that they could not be operational without a recognition agreement between the Union and Judiciary management. This was due to the fact that the registration of the Union was in contention and a decision was yet to be handed down by the Court. The Commissioner nevertheless went ahead with the cancellation. 6. Subsequent to the Commissioner's action, the Union received a ' Judgment from the Court (Hon Lady Justice Mwenda) in which the Court found that NUJW's certificate was legitimately obtained and all procedure was followed. J 3 CamScanner 7. The appellant wrote to the Labour Commissioner informing him of the outcmne of the case. Unfortunately, the Labour Commissioner maintained his position that the certificate for the NUJW ren1ained cancelled. All efforts to engage with him proved futile hence seeking the inlcrvenlion of the Court in the matter. 8. There was no rebuttal to the appeal. Analysis and decision 9. I have carefully considered the evidence presented in this case. It is a fact that NUJW was duly registered by the Labour Commissioner on 28 th June, 2017. It is also a fact that the registration of NUJW was challenged by the Judicial Allied Workers Union in an action commenced under Appeal No. 01/2021 on the basis that the laid down procedure was not followed. The record shows that the Labour Commissioner subsequently de-registered the union on 8 th July, 2022 before the judgment of the court was delivered. The judgment was delivered on 20th July, 2022 and held that the registration of NUJW was in conformity with the law. 10. Thus, by this appeal, I am called upon to determine two issues: (i) Whether the de-registration of NUJW is null and void; (ii) Whether the registration certificate should be restored. J4 CamScanner 11. Th appeal is pursunnt. lo sect.ion I ;J( I ) of th e Act whi ch provides that: Any person aggriev d IJy any refu sal of the Commissioner to register a tmde wiirm, o,- by ,my decision to regis ter an organisation as a trade 11nion, o,- by t/1 cmicellatiun of a certificate of registration, may app al, to tli Cow t not later than ninety days af ter the notification of uch 1·eji1 al, decision or cancellation, us the case may be. 12. As alluded to earlier, the responden ts failed and / or neglected to file an answer and did not appear before Court to adduce evidence that could help Court fully appreciate the circumstances that led to the cancellation of the certificate of registration. It is cardinal to mention here that this behaviour is frowned upon. 13. The letter on record, from the Commissioner dated 8th July, 2022 , shows that the Union's certificate of registration was cancelled on account of the fact that the Union had failed to comply with its Constitution and the law; basically, that it had been dormant. In a letter dated 13th July, 2022, the appellant attributed the dormancy of the Union to the fact that Judiciary management had not signed the recognition agreement due to the on-going court case. 14. Therefore, in resolving the first issue, that is, whether or not th e de-registration is null and void, it is cardinal to examine the effect of the Union's inability to secure recognition. J 5 CamScanner 15. A search of the Act reveals no particular provision prohibiting a registered Union from becoming functional before recognition. However, a perusal of the letter from the Judicial Service C01n1nission dated 9th January, 2018 reveals that NUJW was prohibited fron1 operating before the signing of the recognition agreen1ent. The letter reads in part: a) That the Judicimy Management must recognize the National Union for Judicial Workers (NUJW) as a duly formed Union within the Judicature; b) That the Judicial Service Commission will at its next meeting consider the tenns of the recognition agreement between the Judiciary Management and the National Union for Judicial Workers (NUJW); c) That the recognition agreement shall be signed after the process outlined in (b) above is concluded; d) That the National Union for Judicial Workers (NUJW) will only begin to operate as a Union within the Judicature after the recognition agreement is duly signed on such terms as will be prescribed in the recognition agreement 16. From the foregoing correspondence, it becomes clear to see that the Union's hands were tied and there was no way they could have proceeded to start carrying out union activities. 17. Furthermore, a un10n, like any other organization requires resources to function. Ordinarily, NUJW needed to have financial resources to be able to conduct activities such as holding elections to usher in officers. Without a recognition agreement in place, the employer cannot deduct subscription moneys from employees' J 6 CamScanner salaries for onward remittance to the Union. Section 22 of the Act sates: An employer may, by agreement with an eligible employee, deduct the amount of subscription prescribed by lhe cons titution of the trade union from the wages of such eligible employee if the employee is a member of such trade union. 18. As the evidence has established, the Judiciary management refused to enter into a recognition agreement with NUJW for the reason that it was incompetent due to the pending litigation. This meant that the necessary subscriptions could not be deducted from willing and eligible members of NUJW. 19. In light of this, I find that the reasons advanced by the Commissioner, the 1st respondent herein, for the cancellation of the registration certificate had no merit. 20. I am alive to the fact that section 12 of the Act empowers the 1st respondent to cancel a certificate of registration m the circumstances envisaged by law. Meanwhile, the evidence has shown that the certificate was cancelled by the 1st respondent while the court action which prevented the Union from being recognized by the Judiciary management was on going. By virtue of being a party to that matter, the 1st respondent was aware that judgment in the matter had not yet been delivered at the time he arrived at the decision to cancel the certificate. Cancellation would have been in order had the 1st respondent not been privy to the court proceedings. J 7 CamScanner 21. In the premises, 1 am of the view that the cancellation cannot be upheld. This Court will not condone act.ions hy parties dearly meant to underm ine the authority of Ll1c Courts und its decisions. 22. Cognizant of the Court's finding that NUJW was registered m accordance with the law, the inevitable conclusion is that its de registration by the 1st respondent infringed on the rights of its members as envisaged by section S(b) of the Act. 23. Furthermore, the decision to de-register NUJW, if allowed to stand, would render the decision of Justice Mwenda an academic exercise owing to the fact that the de-registered Union cannot benefit from the fruits of the judgment. In addition, it would directly contradict the decision of Judge Mwenda and this is contrary to settled legal principles. 24. Thus, in the case of Attorney General & Speaker of the National Assembly v. The people the Supreme Court expressed itself in the following terms: As seen from the cases we have discussed above, there is only one High Court in Zambia and that a decision of one Puisne Judge of the High Court becomes a judgment of the High Court. As we stated in the Re. Hastings case, it is beyond our comprehension that a Judge of the High Court can be heard to overrule or otherwise interfere with a judgment of another High Court Judge. 25. All in all, I find in favour of the appellant and declare that the cancellation of certificate of registration No. 119 is null and void. CamScanner 26. Where there has been a cancellation of a certificate of registration, this Court is empowered by section 13 subsection 4 of the Act to do the following: (a) set aside the decision of the Commissioner refu s ing the registration of a trade union or cancelling a certificate of regis tration, if it is s atisfied that grounds exist which qualify or entitle such trade union to be registered, or if it is satisfied that the cancellation of the certificate of registration should not have been made; and order the Commissioner to register the trade union or order the Commissioner to restore the certificate of registration subject to such conditions, if any, as the Court may specify; (b) dismiss the appeal; or (c) make such other as it considers appropriate in the circumstances. 27. Having declared that the cancellation is null and void, it follows that the certificate of registration ought to be restored. Thus, by the powers vested in me by section 13(4)(a), I accordingly order the Commissioner to restore the certificate of registration cancelled on 8th July, 2022. 28. In terms of costs, as alluded to earlier, the respondents neither filed an answer nor made an appearance at the hearing. This is unreasonable conduct as envisaged by Rule 44 of the Industrial Relations Court Rules, Cap 269. The respondents are therefore condemned in costs for and incidental to this action to be taxed in default of agreement. J 9 CamScanner 29. Parties are informed of their right to appeal. Delivered at Lusaka this 25th day of November, 2024 M. C Milcalile HIGH COURT JUDGE J 10 CamScanner