Zimbabwe Banks and Allied Workers Union (ZIBAWU) v Bankers Association of Zimbabwe & Another

### Preamble
LC/H/143/25
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/143/25
HELD AT HARARE 12 MARCH 2025
CASE NO. LC/H/32/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/143/25

HELD AT HARARE 12 MARCH 2025	CASE NO. LC/H/32/25 AND 7 APRIL 2025

IN THE MATTER BETWEEN:

ZIMBABWE BANKS AND ALLIED

WORKERS UNION (ZIBAWU)	APPLICANT AND

BANKERS ASSOCIATION OF ZIMBABWE	FIRST RESPONDENT

ELVIS MUDZENGERERE	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Ms. L. Mhasho With Ms. Z. Majena

For First Respondent	Mr. A. Moyo

With Mr. G. Sithole

No Appearance for Second Respondent

MURASI J.,

On 12 December 2024, this Court issued a Disposal Order determining that Applicant’s intended collective job action was illegal and that it should be discontinued forthwith. Applicant is dissatisfied with that decision and intends to approach the Supreme Court for relief. This is therefore an application for leave to appeal to the Supreme Court in terms of section 92 F (2) of the Labour Act, (Chapter 28:01).

APPLICATION FOR POSTPONEMENT

At the commencement of the proceedings, Ms. Mhasho stated that she was applying for a postponement of the matter as the legal practitioner handling the matter was engaged in the High Court on another matter. She further stated that the legal practitioner, Professor Madhuku, had a continuing criminal matter which had been set down for that date. Asked by the Court as to when Professor Madhuku had been made aware of the impending hearing in the High Court, she stated that she did not know. She also submitted that she did not have documentary evidence to show the Court that indeed the matter was going to be heard on that date.

In response, Mr. Moyo stated that First Respondent was opposing the application for postponement. He submitted that the first time he had been made aware of the intended postponement was the previous night through a phone call to Mr. Sithole from his law firm. He informed the Court that they were informed that they would be served with the official request for the postponement. He added that no such formal request was made to their office until they left the office for the Courthouse. He stated that the only time they received such information was at 0945 hours whilst at Court and awaiting the hearing of the matter. He also added that the physical copy of the request to the Registrar had been copied to Gill, Godlonton and Gerrans which was a different law firm and not handling the present matter. He argued that the facts showed a clear example of ‘double- booking’ which was unacceptable taking into account that it was the Applicant who had dragged the Respondents to Court.

Mr. Moyo further submitted that the law on applications for postponement of a matter was settled. He cited the case of Apex Holdings v Venetian Blinds SC 33/15. He argued that postponements cannot be granted for the mere asking and reasonable explanations have to be advanced for the grant of such applications. He also stated that it was trite that in an application for a postponement of a matter, the person making such an application should be prepared to proceed with the matter where the application is declined. He added that there was no plausible reason advanced for the postponement of the application.

Analysis

This Court also took notice that as at 0930 hours, the portal on the IECMS platform did not have any indication that a request for a postponement of the matter was going to be made. Ms. Mhasho did not appear to have information as to when Professor Madhuku became aware that he was required to attend to a criminal matter on that date. She did not have any document to show the Court. She only informed the Court she had been instructed to make an application for postponement of the matter. As stated in the reasons for declining to postpone the matter, Professor Madhuku could not have been made aware of the hearing late at night the day before. He must have been informed timeously of such happening. He left it until the eleventh hour to communicate with this Court. The First Respondent’s legal practitioners were also not informed timeously of such intentions. The following factors have been considered to be necessary considerations in applications for postponements:

The court has a discretion as to whether an application for a postponement should be granted or refused.

The discretion must be exercised in a judicial manner. It should not be exercised capriciously, unreasonably or on wrong principle.

An application for a postponement seeks an indulgence. The applicant must show good and strong reasons i.e. the applicant must furnish a full and satisfactory explanation of the circumstances that give rise to the application. A court should be slow to refuse a postponement where the true reasons for party non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case.

An application for a postponement must be made timeously, as soon as the circumstances which might purify such an application became known to the applicant.

Considerations of prejudice must be form part of the decision.

The balance of convenience is another consideration.

I have indicated elsewhere in this judgment that there was a dearth of information from Ms. Mhasho. She did not know when Professor Madhuku was informed of the hearing in the High Court. She could not shed light as to why there was a nocturnal tele-communication with First Respondent’s legal practitioners. Ms. Mhasho was also unable to explain why the formal request to the Registrar’s Office was only made after 0930 hours on the date of the hearing. Clearly, no explanation was forthcoming on Applicant’s behalf. The application for postponement was therefore dismissed.

PRELIMINARY ISSUES ON THE MAIN MATTER

On the merits of the application, Mr. Moyo stated that he had points in limine to raise. He submitted that there were no prospects of success as the present application was moot. He further submitted that Applicant’s cause of action was moot, and a court is always required to deal with live issues disputes between parties. He stated that the Notice to proceed on a collective job action had expired and there was need to issue a fresh Notice to comply with the statute. He added that a notice expires and the Applicant could not proceed on a collective job action on an expired notice.

He stated that the second issue as regards mootness was that, post the decision of the Court, the parties had re-engaged and came up with a new agreement which covered the period that had created the dispute. The said agreement had been made part of the record. He argued that there was therefore no existing dispute between the parties. He further added that the agreement referred to ‘legacy issues’ that had existed between the parties for the period from January 2024 to December 2024 and these had since been resolved. He argued that there was now no issue to be determined by the Supreme Court.

Mr. Moyo further submitted that the issue raised by Applicant as regards the absence of a date inserted by the Minister was a non-issue as the facts as shown in the Court’s judgment were very simple. He stated that the Minister was constrained in inserting a date as the Superior Courts were

on vacation and had requested the Registrar to do that and this had been done. He added that Applicant had not pointed to any prejudice that it had suffered as a result of the adopted procedure. Mr. Moyo further argued that the correct procedure would have been for the Applicant to appeal against the Minister’s non-issuance of a return date and not the manner in which this had been raised. Mr. Moyo also submitted that the intended grounds of appeal lacked merit in that a reading of the Court’s judgment showed that the Court had religiously followed the provisions of section 107 and that the Supreme Court was unlikely to interfere with that decision.

In response, Ms. Majena stated that she was of the view that section 104 had been amended by the reduction of the notice period from 14 days to 7 days. She also stated that as regards the mootness of the matter, the intended appeal raised legitimate questions of law. She added that the Court was not dealing with salaries but whether the collective job action was legal or not. She further submitted that the Supreme Court would be asked to determine about the correct procedure in implementing a collective job action. In that regard, Ms. Majena submitted that there were prospects of success on appeal.

Analysis

Before proceeding to the issues raised by Mr. Moyo, I need to state the correct position of section 104 in light of the submissions by Ms. Majena. The correct position is that the Labour Amendment Act Number 11 of 2023 did not amend section 104 of the Act.

I should begin by stating that a reading of the Applicant’s heads of argument in relation to the question of mootness shows that Applicant has generally referred to the precedents that deal with the question of mootness. The correctness of that position is not doubted. However, the heads of argument do not relate the law to the factual issues raised by the First Respondent. The heads of argument were prepared on 13 February 2025 AFTER the signing of the Agreement between the parties which was on 3 February 2025. First Respondent specifically refers to paragraph 8 of the Agreement. It reads as follows:

“8. This agreement shall settle all legacy or disputed issues that remained unresolved in 2024 (2nd, 3rd and 4th quarters) as far as salary negotiations are concerned.”

Both parties refer to similar cases in argument. In Movement for Democratic Change & Ors v Mashavira & Ors 2020 (1) ZLR 797 (S) PATEL JA (as he then was) had this to say at 815 A-E:

“The principles governing mootness are relatively well established. The first is that a court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties. Thus, if the dispute becomes academic by reason of changed circumstances. The case becomes moot and the jurisdiction of the court is no longer sustainable- Khupe & Anor v Parliament of Zimbabwe & Ors 2019 (3) ZLR 915 (CC). To put it differently, the controversy must be existing or live and not purely hypothetical- Koko v Eskom Holdings SOC Ltd [2018]

ZALCJHB 76, at para 21; National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC), at para 21 (footnote 18)

The second principle is that mootness does not constitute an absolute bar to the justiciability of the matter. The court retains its discretion to hear a moot case where it is in the interests of justice to do so- Khupe’s case, supra, at p. 13; J T Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC), at 525 A-B. This may arise where the court’s determination will have some practical effect, either on the parties concerned or on others, and the nature and extent of such practical effect, or because of the importance or complexity of the issues involved- Independent Electoral Commission v Langberg Municipality 2001 (3) SA 925 (CC), at para 11. In short, te court may exercise its discretion to hear a moot issues by reason of its significance, practical or otherwise, and the need for an authoritative determination on that issues in the interests of justice.

It thus becomes necessary in casu to answer to interlinking questions; has the present matter been overtaken by events and thereby rendered moot; and, if so, should this court nevertheless render its definitive determination in the matter in the interests of justice. It is at this juncture that I am confronted by what I perceive to be the ineluctable exigencies of realpolitik.”

Mr. Moyo referred to the agreement which now forms part of the record. The agreement provides that ALL legacy or disputed issues are settled. These are those that related to 2024. The collective job action related to the disputes of the 2024 salary negotiations. Elsewhere in this judgment I made the observation that Applicant’s heads of argument recite what the law on mootness entails. I also made the observation that Applicant’s heads of argument do not link the law to the facts of the matter. Crucially, the issues raised in the Movement for Democratic Change case, are not answered by the Applicant. What is clear about the agreement referred to above is that it terminates the controversy that was between the parties. This has not been denied by the Applicant in the heads of argument. This therefore means that the matter falls into the category of mootness.

The second issue is whether the court’s determination will have some practical effect, either on the parties concerned or on others, the extent of such practical effect or the importance of the case or its complexity. No such arguments were proffered on behalf of the Applicant. There is a remarkable muteness on the part of the Applicant on this score.

It is my considered view that the matter has become moot and no useful purpose will come out of a reference of the matter to the Supreme Court. In Thando Ncube v Fidelity Printers and Refineries (Pvt) Ltd SC 62/20, MAKARAU JA (as she then was) had this to say:

“In an application for leave to appeal, the Judge considering the application acts as a gate- keeper. The role of the judge is to keep out appeals with no prospects of success. It presents itself clearly to me that an application that raises a point that has already been determined by this Court and has been determined against the very point that applicant that should not

be allowed to pass, unless the applicant shows that it intends to request the Supreme Court to reverse its earlier decision and has prospects of success in that regard.”

I align myself with the above sentiments in the present matter. In the circumstances, it will not be necessary to deal with the other issues raised by Mr. Moyo.

The following Order is appropriate.

The point in limine on mootness is hereby upheld.

The application for leave to appeal to the Supreme Court is hereby struck off the roll as the matter has become moot.

Applicant to meet First Respondent’s costs.

Lovemore Madhuku Lawyers-	Applicant’s legal practitioners

Kantor & Immerman-	First Respondent’s legal practitioners.