Zimbabwe Sugar Milling Industry Workers Union v Matangaidze & Anor (HC 5339 of 2016; HH 346 of 2016) [2016] ZWHHC 346 (8 June 2016)

1 HH 346-16 HC 5339/16 ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION versus TAPIWANASHE MATANGAIDZE and MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE N. O. HIGH COURT OF ZIMBABWE TAGU J HARARE, 3 and 8 June 2016 Urgent Chamber Application I. M. Sithole, for the applicant Ms S. Chihuri, for the respondents TAGU J: This is an urgent chamber application for interdict against first and second respondents not to unlawfully interfere in the internal affairs of the applicant and for the second respondent not to invoke her powers in terms of s 51 of the Labour Act to cause elections to take place for applicant’s leadership in violation of applicant’s own constitution. The applicant is a duly registered trade union representing employees in the sugar milling industry, herein after referred to as (ZISIMIWU). The first respondent is the Deputy Minister of Public Service, Labour and Social Welfare. The second respondent is the substantive Minister of Public Service, Labour and Social Welfare. What is clear from the papers filed of record and the submissions from counsels is that on 1 May 2016 the first respondent went, called for, chaired and addressed a meeting during Workers Day celebrations at Nesbitt Arms Hotel, Chiredzi. His presence irked some members of the applicant because at the meeting some members perceived by other members of the applicant to have been booted out of the executive attended the meeting. The Deputy Minister then wrote his proposals to the Minister on what he saw. The applicant now fears that the Minister may act on the recommendations of the Deputy Minister, which may culminate in the Minister acting in terms of s 51 of the Labour Act [Chapter 28.01]. The applicant has now approached this court seeking the following relief: HH 346-16 HC 5339/16 “ 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. That the 1st Respondent’s interference in the affairs of the Applicant be and is hereby stopped. 2. That the 2nd Respondent be and is hereby stopped from acting on the recommendations of the 1st Respondent dated 12 May 2016 for her to invoke her powers in terms of section 51 of the Labour Act [Chapter 28:01] and cause supervised elections to be conducted by the Applicant. 3. That the 1st Respondent shall pay the costs of this application on a legal practitioner and client scale. TERMS OF THE INTERIM RELIEF GRANTED Pending finalization of this matter, Applicant is granted the following relief:- 1. That the 1st Respondent be and is hereby interdicted from interfering in the internal affairs of the Applicant. 2. That the 2nd Respondent be and is hereby interdicted from acting on the recommendations of the 1st Respondent dated 12 May 2016 for her to invoke her powers in terms of section 51 of the Labour Act (Chapter 28:01) and cause supervised elections to be conducted by the Applicant. 3. That the 1st Respondent shall pay the costs of this application on a higher scale. SERVICE OF THE ORDER The Sheriff shall serve this order on the Respondents.” The situation on the ground as observed by the Deputy Minister who claims to have been sent by the Minister to go and chair the May Day Celebrations in Chiredzi is that there are two parallel structures currently claiming to be running the affairs of Zimbabwe Sugar Milling Industry Workers Union (ZISMIWU). He therefore proposed the holding of an elective Annual General Meeting. The meeting was supposed to have been held on or about the 28th of May 2016. This to date has not happened. The applicant fearing that the Minister may soon call for such a meeting has rushed to this court to apply for an interdict. In its view the Deputy Minister went to Chiredzi without the blessings of the Minister. On the other hand the Deputy Minister chronicled the events that preceded his going to Chiredzi and claimed that he did so with the blessing of the Minister. The respondents are opposing the application stating that when the Deputy Minister went to Chiredzi he was on ministerial duties. They submitted further that the observations and recommendations by the second respondent to the Minister, since both work in the same office, were correct presentation of facts. The Minister therefore, has discretion to adopt or HH 346-16 HC 5339/16 not to adopt the recommendations of the deputy Minister. In any case they submitted that the second respondent had been told by some senior officers and not the Minister for his own security not to go to Chiredzi. Section 51 of the Labour Act [Chapter 28.01] provides that: “51. Supervision of election of officers The Minister may, where the national interest so demands cause to be supervised holding of elections to any office or post in a registered trade union or employer’s organisation”. From the papers and representations made before the court it is clear that the situation at ZISIMIWU is not a bed of roses. There are accusations and counter accusations from rival executives. Current executive members claim to have ousted the former executive through the unpopular votes of no confidence and supposedly democratic elections. The other former executive led by the likes of Admore Hwarare and Simbarashe Nyemba is accused of having at one time burnt and destroyed records at the applicant’s offices in Chiredzi after the second respondent released a document that an investigation team was to be sent to Chiredzi to investigate them. Further there are some political elements who are meddling in the affairs of the applicant. In my view there is a potentially explosive situation that is likely to occur at the applicant‘s organisation. The legislature in its wisdom enacted section 51 to empower the Minister to bring normalcy to any workers organisation if the need arises. In my view, it would be clearly unwarranted for this court to disable the Minister to discharge his or her duties efficiently when the need arises. As I stated above there is a potentially explosive situation that may arise at the applicant’s organisation and if such a thing happens the Minister can use his or her discretion in terms of s 51 of the Act to defuse the situation. The relief prayed for by the applicant is untenable as it is tantamount to stopping that which the law empowers the Minister to do. In any case I am of the view that one of the essential elements of the application for an interdict that is, there has to be no other satisfactory remedy if the order is not granted has not been fulfilled. I say so because in the event the applicant is aggrieved by the decision of the Minister the applicant has an alternative remedy in terms of s 51 (3) of the Act. Section 51 (3) provides that: “(3) Any person who is aggrieved by any action taken by the Minister in terms of this section may appeal to the Labour Court.” The decision that the Minister may take is not a final one. It is a decision which will be in the national interest. In any case the decision that the Minister may take may not necessarily be to interfere in the internal affairs of the applicant. In the circumstances the HH 346-16 HC 5339/16 balance of convenience does not favour the granting of an interdict against the first and second respondents. For these reasons the application will fail. In the result it is ordered that: 1. The application is dismissed with costs. Mangwana & Partners, applicant’s legal practitioners Civil Division of the Attorney-General, respondents’ legal practitioners