Kaoma v Makaliki and Another (IRD/ND 36 of 2016) [2016] ZMIC 26 (13 July 2016)

, IN THE HIGH COURT FOR ZAMBIA IRD/ND/36/2016 AT THE NDOLA DISTRICT REGISTRY HOLDEN AT NDOLA INDUSTRIAL/LABOUR DIVISION ~.- BETWEEN: SMART KAOMA AND • ",G" COURTFOR'~ INDUSTRIAL I <. A;4fo.r. --.. I v."'IJ'""r (~f' """"'r::;4-eoUf~ 'f .~t;JUL..~a.!!. J SEAL 1-"9¥~'>'. "'" ,,=OW =-- ~~'-4"'"' "". : IAPPLICANT BORNFACE MAKALIKI AND LEVI CHIMFWEMBE RESPONDENT CORAM: HON. JUDGE MR. JUSTICE D. MULENGA For the Applicant In Person For the 1" Respondent In Person Not in attendance For the 2" Respondent In Person RULING Cases referred to: 1. Preston v Luck (1994) 27 Ch. 497. 2. Shell & BP (Z) Limited v Conidaris & Others (1974) ZR 65 (SC). This is an application for an Interlocutory Injunction order made by the applicant herein. In support of the application, the applicant relied on the affidavit in support of the application sworn by the said applicant and filed into court on 13'h April, 2016. Rl The Complainant deposed through his aforesaid affidavit that he has been a member of the Mine Contractors and Allied Workers Union of Zambia for some time as per exhibit marked "SK2" in the affidavit in support of the Complaint. Exhibit "SK2" shows that the applicant is one of the listed employees of Foveros Mining limited who contribute to the Union. However, the Union referred to therein is not mentioned by name. The applicant deposed that the 1" Respondent from the time he started associating himseif with the Union (Mine Contractors & Allied Workers Union of Zambia) and when he was irregularly appointed as General Treasurer of the Union, he was not an employee of any company where the aforesaid union has membership by way of Recognition Agreement. The applicant also deposed that under Rule 6.3 of the Union Constitution the 1,1 Respondent is required to subscribe to the union and sign the jOining membership form which he has not done. To that effect the Applicant herein wrote to the 2" Respondent asking for the reasons why the Union maintained the 1" Respondent, the said letter is exhibit "SK4". The applicant argues in his aforesaid affidavit that whereas the Union kept the 1" Respondent, it through the National Executive Committee disqualified six officers who were not empioyees of any company with recognition agreement with the Union. Exhibit "SK5" lists the individuals who were disqualified for not being employees of any of the companies that have recognition agreement with the Union. R2 The applicant by exhibit "SK5" contends that in October, 2014, a company which the 1,t Respondent purported employed him, disassociated itself. The applicant further deposed that there is no merit in the continued stay of the 1" Respondent in the Union as the same is only being used to abuse the office and violate the Union Constitution thereby disadvantaging the eligible members of the said Union. He also averred the 1" Respondent is incapable of executing the functions of General Treasurer as he failed to prepare financial reports and could not attend to annual audit of financial reports of the Union. Whereas, there is an Answer and affidavit in support of the said answer filed into court by the 1" and 20d Respondent, there is no affidavit in opposition to the application herein. It appears to the Court that the Respondents herein responded to the application of the applicant through their joint affidavit in support of the Answer. The 1,t Respondent deposed in response that he had been a member of National Executive Committee of the Union in issue, way back in 2011, therefore the Applicant's application is misplaced. The 1" Respondent relies on the exhibit marked "BM1" in the affidavit in support of the Answer. Exhibit "BM1" is a letter under the hand of Labour Commissioner dated 28th September, 2011. The said letter is a confirmation of the results of the elections which the union conducted at Moba Hotel- Kitwe on 16th September, 2011. R3 Perusal of the said letter of the Labour Commissioner shows that the 1" Respondent was elected as Senior Trustee and the 2" Respondent as Deputy General Secretary. The 1" Respondent also deposes that he was the founding member of the Union in issue. therefore it is not morally right to complain against him that he is not an eligible employee and therefore not qualified to hold office in the said Union. The 1" Respondent argues that he had worked for the mines and was employed by a Contractor before, therefore, he falls within the catchment of eligible workers where a Union draws its membership. Also that the 1,1 Respondent made his personal contribution of K50.00 to the Union. He contends that he has always prepared the financial audited reports as per exhibit "8M?". The only response by 2" Respondent is that he has no capacity as General Secretary to remove the 1,I Respondent from office except through a constitutional committee. On the hearing of the application herein the 1" Respondent was not in attendance, however and Respondent informed the Court that the 1" Respondent was fully aware of the date of hearing. The Applicant was granted Leave to proceed with his application. In his viva voce, submissions the applicant told the Court that the 1" Respondent was unconstitutionally holding the office of the General Treasurer of the Mine contractors and Allied workers Union of Zambia contrary to clauses 6.1., 6.3,. 9.3. 10.2 and 24 (1) of the Constitution of the said Union, as read with section 18 (1) (a) (2) of the Labour and Industrial Relations Act, Chapter 269 of the Laws of Zambia. R4 Applicant urged the Court to allow the application as failure to do so would cause the Union to suffer irreparable damages as it may be deregistered. Further, that the Union shall suffer serious financial loss. In Response, 2" Respondent, submitted that he had received a complaint from the Applicant herein, against the membership of the 1" Respondent and forwarded the matter to the National Executive Committee of the Union. The National Executive Committee has not passed any resolution upon which the 2" Respondent could act. It is clear from the submission made in this case and the affidavit of both parties that the gist of the application herein is that the 1" Respondent cannot hold the position of National General Treasurer because he is not an employee of any of the companies that have recognition agreements with the union in issue. Further, that the 1" Respondent does not make monthly contributions to the Union (MCAWUZ) through an employer. Rule 6.1 of the Mine Contractors and Allied Workers Union of Zambia (hereinafter referred to only as the constitution) otherwise exhibit "SKT' provides that membership of the union shall be open to all workers employed by contractors in the mines and Allied Industries and full-time union officers and union staff regardless of race, sex or region. Rule 6.5 of the Constitution provides that the membership monthly subscription shall be two percent (2%) of the members' basic salary and Rule 9.3 of the Constitution provides in part that a member of the Union whose employment has been terminated but who intends resuming employment in any of the mining industry in which the union operates may remain a member of the Union for a R5 period of six (6) months but shall thereafter automatically cease to be a member of the union if she or he has not been re-employed in the mining industry. The above rules, of the Constitution shows that for one to be a member of the Union (MCAWUZ) needs to be an employee of a contractor in the Mines and Allied Industries. Further, one of the reasons for termination of Union membership is termination of employment. I am alive to the decision in the case of Preston v Luck (1994) (1) where Lord Justice Cotton said at page 506:- Of course in order to entitte the plainliff to an Interlocutory Injunction though the Court is not called upon to decide finally on the rights of the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiffs are entitled to relief. I! is clear from the above observation of Lord Justice Collon that there is a requirement by the Applicant of the Interiocutory injunction order at least to call some evidence to show that there is a probability for him to succeed on the main cause. In the case in casu, the Applicant has demonstrated that for one to be a Union member, one needs to be in the employment of a Contractor with the Mining Company or with an Allied Company to the Mining Firm. Whereas it is not proper to delve into the main cause at this stage, it is to some extent important to ascertain the probability of the Applicant succeeding therein. it is clear from the evidence before me that there is a stronger probability of the Applicant succeeding in the main cause. The 1" Respondent does not deny the R6 fact that he is not in the employment of any Contractor or Allied firm in the mining industry. The case of Shell & BP (Z) Limited v Conidaris & Others (2), cautions in the holding of the Supreme Court of Zambia that:- A Court will not generally grant an tntertocutory Injunction unless the right to relief is clear and unless the injunction is necessary to protect the plaintiff from irreparable injury, mere inconvenience is not enough. Irreparable injury means injury which is substantial and cannot be adequately remedied or atoned for by damages, not an injury which can be possibly repaired. A critical perusal of the pleadings in this matter clearly shows that the Applicant is a member of the Mine Contractors and Allied Workers Union of Zambia and the 1st Respondent is the National Treasurer of the said Union. It is imperative to observe that the position of the 1st Respondent is important to the survival of the said union. However, if the same is adversely affected by the actions of an individual who ordinarily is not qualified to be a member under its constitution such damage cannot be atoned for in damages. In conclusion I have found that there is a serious question to be tried and determined at the hearing of the main cause. I have also made a finding that there is a probability that the Applicant is entitled to relief. I am also mindfui that the status quo of the executive committee of the union shall not be affected adversely by the grant of an injunction herein as the Deputy to the 1st Respondent can take up the position until this matter is heard and determined on the merits. R7 The Interlocutory Injunction order is hereby granted restraining the 1" Respondent from holding office of National Treasurer of Mine Contractors and Allied Workers Union of Zambia, until this matter is heard and determined on the merits. Costs of this application and incidental thereto shall be in the cause. Informed of Right of Appeal within 14 days from the date hereof. Dated at Ndola this 13th day of July, 2016. .............................. ""'1', Han. D. Mulenga Mt I t."M'l,. J r~~~Otltrto7~iiffi'iA JI)OI,:" RY -.:..1 COU~T F!"JP '''. A "'. OIA •• H'.... J.,.. r'. .- -\ ""'''''~''..- 13 JUL 2016 iLt-r> ----.. E. fNDU5TRJAL / LAaO~;kDI';/"'iON JUDGE RO. DOX 701f:0. imOtA '" JUDGE R8