Titus Utedzi v Automotive and Allied Workers Union of Zimbabwe and Martin Chaora (N.O.) and Winas Murambidza (N.O.) and Tonderai Chikoti

### Preamble
1
HH 618-18
HC 7960/18
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TITUS UTEDZI

versus

AUTOMOTIVE AND ALLIED WORKERS UNION OF ZIMBABWE

and

MARTIN CHAORA (N.O.)

and

WINAS MURAMBIDZA (N.O.)

and

TONDERAI CHIKOTI

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 3 September 2018

Urgent chamber application

T G Manhombo, for the applicant

E Chimbati, for the respondents

MUREMBA J: On 3 September 2018, I heard this matter and delivered an ex tempore judgment removing the matter from the urgent roll and also ordering the applicant to pay the respondents’ costs. I have now been asked for the written reasons and these are they.

The first respondent is Automotive and Allied Workers Union of Zimbabwe a registered motor industry trade union. The second respondent is Martin Chaora (N.O.), the First Vice President of the first respondent. The third respondent is Winas Murambidza (N.O.), the National General Secretary of the first respondent. The fourth respondent is Tonderai Chikoti, the Secretary for the first respondent’s Harare Branch.

The background of the matter is that the applicant who was a member of the first respondent’s Harare Branch used to be the President of the first respondent. On 1 March 2015, the first respondent’s National Executive Committee held a meeting and removed the applicant from the position of president and from being a member of the first respondent. Aggrieved by this decision, the applicant approached this court on review under case number HC 2705/15. On 21 July 2016, this court set aside the decision to expel him from being a member and from being the president of the first respondent. Resultantly, the applicant resumed office as president of the first respondent. The first, second and third respondents filed an appeal in the Supreme Court effectively suspending the order of this court. The applicant stopped carrying out his duties as president, but continued to subscribe as a member of the first respondent. The second and third respondents were running the affairs of the first respondent pending the determination of the appeal. Before the appeal was set down, the first, second and third respondents proceeded to hold a congress for the National Council of the first respondent on 3 March 2018 whereat the first respondent’s new office bearers who include the second and third respondents were elected. The first, second and third respondents then filed a notice of withdrawal of their appeal from the Supreme Court on 16 May 2018 on the grounds that the appeal had been overtaken by events. To the applicant, the withdrawal of the appeal meant that he could now resume his duties as president. A few days after resuming office and on 23 August 2018, he was served with a letter which contained a prohibition order, prohibiting him from carrying out duties as president. The order also contained charges as well as a notification to attend a disciplinary hearing on 1 September 2018 before the Harare Branch Executive Committee. Apparently, he was being charged for some alleged misconduct that he had committed when he was still president, before he was sacked. The letter was written by the fourth respondent.

This prompted the applicant to file the present application for an interim order interdicting the respondents from holding a disciplinary hearing against him on 1 September 2018 and for an order reinstating him to his office as the president of the first respondent. In the final order the applicant wanted to be declared a member and rightful president of the first respondent. He also wanted the invitation to disciplinary proceedings and prohibition notice declared null and void.

It was the applicant’s contention that the appeal in the Supreme Court was lodged in order to circumvent the order of this court which reinstated him as president. He further contended that the prohibitory order that he was served with on 23 August 2018 had no legal basis because the fourth respondent who issued it had no authority to do so. The applicant’s argument was that there is no properly constituted Harare Branch Executive Committee.

At the hearing of the matter the respondents raised as a point in limine that the matter was not urgent. In Mutarisi v United Family Intl Church & Anor HH-445-12 Zhou J held that a chamber application is urgent where it cannot wait to be resolved through a court application. The urgency may arise where, if the matter is not determined urgently, there is a risk of irreparable harm to an applicant or there is a risk of perverse conduct on the part of the respondent or its agents which would defeat or render hollow any order which may subsequently be obtained by the applicant in connection with the dispute. The court must be satisfied that if the matter is not heard urgently substantial injustice would result to the applicant. In Finwood Investments Private Limited & Anor v Tetrad Investment Bank Limited & Anor HH 669/14 it was held that,

“A matter will be deemed urgent if:

The matter cannot wait at the time when the need to act arises.

Irreparable prejudice will result, if the matter is not dealt with straight away without delay.

There is prima facie evidence that the applicant treated the matter as urgent.

Applicant gives a sensible, rational and realistic explanation for any delay in taking action.

there is no satisfactory alternative remedy.”

In casu after listening to arguments and submissions by both counsels, I concluded that the matter was not urgent. To begin with, after having been served with the notice on 24 August 2018 to attend the disciplinary hearing on 1 September 2018, the applicant only filed the present application on Friday 31 August 2018, on the eve of the hearing. It was allocated to me on the same day in the afternoon. The applicant had not acted urgently in bringing his matter before this court from 24 August 2018 when he received the notice to attend the disciplinary hearing. He sat on his laurels for 7 days. Besides, he gave no explanation for the delay. In turn, it was not necessary for me to get into panic mode and make arrangements to hear the matter before the disciplinary hearing was conducted on Saturday 1 September 2018. The earliest date that I could give for the hearing was Monday 3 September 2018. Unfortunately for the applicant, the respondents proceeded with the hearing on 1 September 2018 as scheduled. It was not disputed that the applicant chose to walk out of the disciplinary hearing instead of defending himself. A determination to expel him as a member of the first respondent was made. So when this matter was heard on 3 September 2018, the conducting of the disciplinary hearing which the applicant was seeking to stop had been overtaken by events as it had already been conducted. The urgency of the matter had fallen away.

Furthermore, the congress that had removed the applicant from presidency had been held way back in March 2018. So for 6 months the applicant had ignored the outcome of the congress despite having had full knowledge about the congress before it was even held. There was therefore no urgency in the matter when the applicant approached this court on 31 August 2018. He could not seek to be reinstated as President on an urgent basis or seek to challenge on an urgent basis the outcome of the elections that had been held at a congress that had been held 6 months before. The election of the new executive committee that had been held at the congress in March 2018 had been held in terms of the first respondent’s constitution which allows for elections after every five years. The order of this court which reinstated him as president in 2015 did not bar the first respondent from adhering to its constitution. This constitution governs the holding of its congresses and elections. It also governs the holding of disciplinary hearings. If the applicant was aggrieved in anyway, he should have acted earlier. His issues did not become urgent all of a sudden simply because he had been barred from resuming his duties as president after the respondents had withdrawn their appeal. They also did not become urgent because he had been invited to attend a disciplinary hearing.

It is for the above reasons that I removed the matter from the roll of urgent matters with costs.

Tamuka Moyo Attorneys, applicant’s legal practitioners

Chambati Mataka & Makonese Attorneys at Law, respondents’ legal practitioners