Water Authority Workers Union OF Zimbabwe V CITY OF Harare

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WATER AUTHORITY WORKERS UNION
OF ZIMBABWE
versus
CITY OF HARARE


HIGH COURT OF ZIMBABWE
UCHENA J
HARARE 31 March and 1 April 2011


Urgent Chamber Application


A Mugandiwa, for the Applicant
C Kwaramba, for the Respondent


       UCHENA J:         The applicant is a Workers Union representing Zimbabwe
National Water Authority Workers. It is a registered trade union. It originally represented
Zinwa employees, but now represents Zinwa employees, and former Zinwa employees
who were transferred to Local Authorities when Zinwa’s water function in local
authorities was transferred to local authorities.
       The respondent is the City of Harare one of the local authorities to which Zinwa
transferred some of its workers.
       Disputes arouse between the applicant and respondent, the relevant one being the
deduction of trade union dues through the check-off system by the respondent from its
water employees and their submission to the applicant. The respondent threatened to
discontinue the deductions. The applicant referred that dispute and others to compulsory
arbitration in terms of s 98 (4) of the Labour Act [Cap 28:01] herein after called the Act.
The Arbitrator in his award dated 23 July 2010 among other orders ordered the
respondent to continue ducting union dues and submitting them to the applicant.
       The respondent appealed against the Arbitrator’s award to the Labour Court.
However an appeal against a decision of the Labour Court or that of an Arbitrator does
not suspend the operation of the order granted. Thereafter the respondent has up to the
filling of this application continued to deduct and remit dues to the applicant. On its part
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the applicant has in terms of s 98 (14) of the Act, applied to this court for the registration
of the award. The appeal and the application for registration are pending.
       The respondent on 23 March 2011 wrote to the applicant giving notice that it can
no longer continue to deduct union dues for the applicant because, s 53 (1) and (2) of the
Labour Act provides that-

       “(1)    No employer shall, without the consent of the Minister, pay on behalf of
               any employee any union dues other than to a registered trade union.
       (2)     Any employer who contravenes subsection (1) shall be guilty of an
               offence and liable to a fine not exceeding level seven or to imprisonment
               for a period not exceeding two years or to both such fine and such
               imprisonment.”

       The dues are deducted at the end of each month, therefore those for the month of
March 2011 will not be deducted if this court does not interdict the respondent from
carrying out its threat The applicant filed this urgent application to avoid loss of income
from its members who were transferred to the respondent’s water department. It seeks a
provisional order to the following effect:

       “Pending determination of matters in HC 283/2011 and LC/H/369/2010, the
       applicant be and is hereby granted the following relief:
       That the respondent be and is hereby interdicted from stopping the recovery of
       union dues payable to the applicant by means of a check-off system”

    The respondent opposed the application and raised the following preliminary issues.

    1) That the case is not urgent.
    2) That it is improper for a legal practitioner who is representing the applicant to
       himself prepare and file the certificate of urgency
    3) That the case being a labour dispute should have been filed in the Labour Court
       and therefore this court has no jurisdiction to hear this application.

Urgency

       Mr Kwaramba for the respondent submitted that this case is not urgent because
the same dispute is pending in the Labour Court to which the respondent has appealed
against the arbitral award, and in this court to which the applicant has applied for the
registration of the arbitral award, which the respondent is opposing. He argued that the
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applicant is seeking to enforce the award through this application before the registration
of the award, and that this will have the effect of predetermining the application for
registration.
        Mr Mugandiwa for the applicant submitted that the respondent has since the
transfer of Zinwa employees to itself, been making deduction and submitting them to the
applicant. The respondent has been doing so for over eighteen months. He submitted that
the respondent continued to make deductions and submitting them to the applicant after
the arbitral award was granted. The applicant was surprised when the respondent by letter
of 23 March 2011 advised it that it was going to stop deductions, because of its belief that
its continuing to do so renders it open to prosecution for contravening s 53 (1) of the
Labour Act. He therefore submitted that the urgency arises from the respondent’s letter of
23 March in which it threatened to stop deductions. He further explained that the order
the applicant seeks does not seek to pre-empt the respondent’s appeal to the Labour Court
and its own application for registration of the arbitral award. It seeks to maintain the
status quo pending the determination of the appeal and the application for registration of
the award.
        I agree that if the respondent had not written its letter of 23 March this application
would not have arisen. The urgency clearly arises from the respondent’s threats contained
in that letter. All the applicant seeks is to stop the respondent from carrying out its threat
until the dispute is determined by the application for registration of the arbitral award to
this court and the appeal to the Labour Court. The urgency is premised on the applicant
not getting deductions for the month of March which are due seven days from the date of
the threat. I would therefore hold that the application is urgent, and dismiss the
respondent’s preliminary issue on urgency.

Certification of urgency

        Mr Kwaramba for the respondent submitted that the applicant is not properly
before the court because Mr Mugandiwa who is representing the applicant certified the
urgency of the application. He relied on the case of Chafanza v Edgars Stores 2005 (1)
ZLR 299 (H), @ 300 G- 301 A where CHEDA J with the concurrence of NDOU J said:
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        “To my mind it is totally undesirable for a legal practitioner to either attest to an
        affidavit or sign an urgent certificate for and on behalf of a client, who is being
        represented at his firm as such lawyer clearly has an interest in the matter at hand.
        Legal practitioners are therefore guided accordingly.”

        Mr Mugandiwa in response argued that a legal practitioner does not have an
interest in a case he or his law firm is representing. He relied on the case of Route Toute
BV & Ors v Susnspun Bananas (Pvt) Ltd & Anor HH 27-10, in which CHATUKUTA J at
p 3 of the cyclostyled judgment, said:

        “I am persuaded by Mr Chikumbirike’s submissions that the rules do not prescribe
        that a legal practitioner who signs an urgent certificate must not be from the same
        firm that represents the applicant in that matter. Rule 242 (2) simply prescribes
        that where an applicant is legally represented in an urgent chamber application,
        the application, must be accompanied by a certificate from a legal practitioner
        supporting the urgency of the application. As Mr Mlotshwa conceded, the
        decision in the Chafanza case is not binding. It is my view that there is no conflict
        of interest”

        Legal practitioners are in the main complying with Justice Cheda’s judgment.
Since the Chafanza case (supra) the majority of legal practitioners, whose urgent
applications have appeared before me, are referring their cases for certification of
urgency by a legal practitioner outside their law firm. A few are however still certifying
the urgency of cases from their own firms. Their defence as was advanced by Mr
Mugandiwa is they are doing what has been approved by some subsequent judgments of
this court which specifically disagree with the decision in Chafanza (supra) and held that
there is no conflict of interest.
        The difference of opinion between judges of this court, and the confusion it is
causing to legal practitioners, calls for flexibility on whether or not the principle
enunciated by CHEDA J should be followed before the Supreme Court makes a decision
on that issue. After all CHEDA J merely said it was totally undesirable for a legal
practitioner to certify as urgent a case being handled by his own law-firm, but proceeded
to deal with that case on an urgent basis, but urging legal practitioners to be guided
accordingly. This in my view demonstrates that he was being flexible to allow the
principle he enunciated to take root. The principle has however been challenged by other
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judgments of this court which clearly state that there is nothing wrong with a legal
practitioner certifying the urgency of a case being handled by his law-firm. It would be
wrong in my view to penalize a party for doing what some judgments of this court say is
correct. I would therefore without adding to the confusing situation by pronouncing my
own view on the matter, accept the certificate of urgency by Mr Mugandiwa as valid. The
respondent’s preliminary issue on the certification of urgency is therefore dismissed.

Jurisdiction

       Mr Kwaramba for the respondent submitted that this court should not hear this
application as the Labour Court has jurisdiction to hear such applications. He relied on
the cases of Medical Investments v Pedzisai HH 26-10 and DHC v Madzikanda HH 51-
10, in which it was held that where there is concurrent jurisdiction between the High
Court and the Labour Court the special jurisdiction of the Labour Court should prevail.
       Mr Mugandiwa on the other hand submitted that the Labour Court does not have
jurisdiction to hear applications for an interdict. He relied on the cases of National
Railways of Zimbabwe v Zimbabwe Railway Artisan’s Union & Ors 2005 (1) ZLR 341
(S) at 347 D-E and UZ–UCSF Collaborative Research Programme In Women’s Health v
David Shamhuyarira SC 10/10 at p 3, which clearly support his submission.
       I am satisfied that the applicant is seeking an order interdicting the respondent
from stopping deduction of dues from its members, until the respondent’s appeal to the
Labour Court and the applicant’s application for the registration of the arbitral award to
this court are determined. As the Labour Court does not have jurisdiction to hear such an
application the applicant’s application is properly before this court. The respondent’s
preliminary issue on jurisdiction is therefore dismissed.

The Merits

       On the merits Mr Mugandiwa submitted that the applicant is merely seeking an
interdict to restrain the respondent from carrying out what it threatened to do in its letter
of 23 March 2011. He submitted that the applicant has a prima facie right to the
deductions by virtue of the arbitral award which ordered that they continue to be made,
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and by virtue of the respondent having been making those deductions and submitting
them to it for over eighteen months, including a period of eight months after the arbitral
award. He submitted that for an application for an interdict to succeed the applicant must
have a prima facie right which can even be open to doubt. He argued that court orders
must be obeyed until they are set aside. He said an arbitral award has the force of a court
order and that it can be registered as an order of this court.
       He further submitted that the applicant will suffer irreparable harm if the interdict
is not granted as the respondent will carry out its threat and not deduct dues for March
2011. He submitted that will cripple the applicant’s operations as the applicant will not
have funds to carry out its mandate of representing its members in the litigation already
filed in the courts. He submitted that the balance of convenience favours the granting of
the interdict as the respondent has already been making deductions and remitting them to
the applicant. He submitted that there is no adequate alternative remedy, as the day of
deductions was fast approaching and having to resort to members making direct
payments would not be an adequate alternative as it may not succeed especially at short
notice, and it will result in the applicant incurring expenses in collecting money directly
from members. It would also lead to delays in collecting the dues.
       Mr Kwaramba for the respondent submitted that the applicant does not have a
prima facie right to the dues as it is not a trade union registered with the respondent. He
further submitted that the arbitral award, does not give the applicant a prima facie right as
it does not have the force of a court order. He argued that the applicant will not suffer
irreparable harm as it can collect the dues directly from its members. He submitted that
the balance of convenience does not favour the applicant, but favours the respondent who
will be laid open to prosecution for contravening s 53 (1) of the Act, if it continues to
deduct the dues for the applicant which is not a registered trade union. He argued that the
applicant has an adequate alternative remedy as it can directly collect the dues from its
members.
       I am satisfied that the applicant has a prima facie right even if it is made open to
doubt by how s 53 (1) of the Act may be interpreted by the Labour Court in the appeal
pending before it, and by this court in the application for registration pending before it.
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The prima facie right is established by the applicant being a registered trade union. The
doubt may arise from the nature of its registration. However that doubt does not disentitle
the applicant, as the prima facie right which entitles an applicant to an interdict, need not
be free from doubt. I do not agree with Mr Kwaramba that an arbitral award under the
Labour Act does not have the force of a court order. It is a court order with the same
force and effect as an order of the Labour court. Section 98 (9), provides that:

       “In hearing and determining any dispute an arbitrator shall have the same powers
       as the Labour Court”

That in my view means the decision of the arbitrator should be of equal force and effect
as that of a President of the Labour Court which is undoubtedly a court of law whose
decision has the force of law.
       I am also satisfied that the applicant’s apprehension of irreparable harm is
reasonable because the respondent’s threat was given on 23 March 2011, a few days
before its members’ were to be paid their salaries for March 2011. This means even if the
applicant can make direct collections of dues from its members it may not succeed fully
because of the short notice. It will have to put the new system in place. Failure to collect
dues will obviously disadvantage it in financing its operations and in the prosecuting of
litigations pending before the courts.
       The intention of the Legislature tilts the balance of convenience in favour of the
applicant. The Legislature found the deduction of dues by check off system efficient and
appropriate. It recognised the need to deduct through the members employer. The
applicant’s apprehension of irreparable harm is therefore supported by Legislation. This
also tilts the balance of convenience in favour of the applicant.
       The wording of s 53 (1) of the Labour Act would have tilted the balance of
convenience in the respondent’s favour if it had been worded in a manner which made
the making of the deductions clearly unlawful. In this case it prohibits the making of
deductions without the Minister’s permission “on behalf of any employee any union dues
other than to a registered trade union”. The use of the words “other than to a registered
trade union”, makes the question of whether or not the applicant is committing an offence
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debatable, as the applicant is a registered trade union. I will not go into the interpretation
of ss 52 and 53 (1) as that issue will be determined by the courts before, which, that
dispute is pending. For the purposes of determining this application it is sufficient to
observe that the alleged commission of the offence is not obvious because of the status of
the applicant as a registered trade union.

         The issue of the absence of an adequate alternative remedy has already been dealt
with under the disadvantages the applicant may suffer if it has to rely on direct collection
of dues from members. The alternative suggested by the respondent has been found
inadequate by the legislature which found it necessary to legislate for the deduction, and
remittal of dues through the employers of members of trade unions.
         In the result I find that the applicant has satisfied all the requirements for the
granting of the interdict it applied for.

         IT IS ORDERED AS FOLLOWS:

         Pending determination of matters in HC 283/2011 and LC/H/369/2010, the
         applicant be and is hereby granted the following relief:
         That the respondent be and is hereby interdicted from stopping the recovery of
         union dues payable to the applicant by means of a check-off system.




Wintertons, applicant’s legal practitioners
Mbidzo Muchadehama & Makoni, respondent’s legal practitioners.

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