Zimbabwe Sugar Milling Industry Workers Union and Foster Gono and Samuel Mubango and Taruvinga Mudenyaya vs The Minister of Labour, Public Service and Social Welfare (N.O.)

### Preamble
1
HMA 53-19
HC 393/19
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ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION

and

FOSTER GONO

and

SAMUEL MUBANGO

and

TARUVINGA MUDENYAYA

vs

THE MINISTER OF LABOUR, PUBLIC SERVICE AND SOCIAL WELFARE (N.O.)

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 6 and 8 November, 2019

Urgent Chamber Application

Mrs G. Dzitiro with S.I. Mutombwa for the applicants

K. Chimiti with Mrs Manzini for the respondent

MAWADZE J:  	It is quite clear from the facts presented before me that the leadership of the 1st applicant, the Zimbabwe Sugar Milling Workers Union (the Union) is hotly contested. There are two factions claiming to be the legitimate Executive Committee members of the Union. These two factions have been for sometime now engaged in bruising legal battles apparently taking no prisoners.

The contestation for the leadership of the Union culminated at some time with my brother MAFUSIRE J. in HMA 38/19 inter alia ordering the applicant being the Union to hold elections to choose members of the National Executive Committee for the Union within 60 days of granting of his order. This was in a bid to bring sanity to this raging dispute which apparently has also dragged the employer of members of the Union which is Tongaat Hullett Limited trading as Triangle Limited and Hippo Valley Estate Limited. Apparently the respondent the Minister of Labour, Public Service and Social Welfare and the umbrella organisation for the Union the Zimbabwe Federation of Trade Unions have been both been sucked into this raging dispute.

In order to properly understand this Urgent Chamber Application some detailed background information is necessary and unavoidable.

It would appear that the judgment by my brother MAGUSIRE J. in HMA 38/19 did not yield the desired results in this raging legal war between the warring parties of the Union (also known as ZISMIWU) vying for the control of the Union of the 1st applicant. An appeal has been lodged against MAFUSIRE J’s judgment and is pending in the Supreme Court. It is submitted that another faction meanwhile sought an order to execute judgment pending the appeal against MAFUSIRE J’s judgment before this court. Further another application had been lodged in this court by employer I believe seeking to make payment of the relevant Union dues to the Master of High Court pending the resolution of the leadership dispute of the Union.

The 2nd to the 4th applicants in this Urgent Chamber Application belong to one faction of the Union comprising of Samuel Mubango, Nokhuthula Dube, Patrick Masaiti, Moses Mutonho, Taruvinga Mudenyaya and Simon Ndale as members of the National Executive Committee of the Union. They claim to be the legitimate or authentic leaders of the 1st applicant, the Union (called ZISMIWU) as per the elections held on 6 October 2019 in compliance with judgment HMA 38/19. On the other hand another faction (which the 2nd to 4th applicants in casu refer to as the Hwarare factions) comprising of Berrington Zvanyanya, Samuel Jinjika, Peter Chikamhi and Zaruro Manara also claims to have been duly elected and endorsed by members of the Union as leaders of the 1st applicant, the Union (ZISMIWU) after elections held on 13 July 2019 and later endorsed in compliance with my brother MAFUSIRE J’s judgment!! This later faction (the Hwarare faction on 28 October also filed a court application in the itch court in Harare, HC 8802/19 which is pending.

What triggered this urgent application (HC 393/19) and the accompanying court application for review in this court is the decision of the respondent, the Minister of Labour, Public Service and Social Welfare contained in a letter to the 1st applicant the Union (ZISMIWU) dated 17 October, 2019. Coincidentally this same letter also triggered the court application by the Hwarare faction filed in Harare in HC 8802/19. The letter reads as follows:

“17 October, 2019

Zimbabwe Sugar Milling Workers Union

Dear Sir,

RE: 	SUPERVISION OF THE ZIMBABWE SUGAR MILLING INDUSTRY

WORKERS UNION ELECTIONS

We make reference to the various elections that were held by the trade union.

We have noted with concern that there are now two groups within the trade union, claiming legitimacy to lead the trade union. As a result of this confusion and in terms of Section 51 of the Labour Act [Chapter 28:01] I am hereby;

Setting aside the outcome of the elections that were held by the two groups and

Directing that the trade union holds fresh elections to be supervised by an officer and on a date to be advised in due course.

Yours faithfully

Dr. S. Nzenza

Minister of Public Service, Labour and Social Welfare”

This decision by the Minister irked both factions vying for the leadership or control of the Union (ZISMIWU), resulting in the Hwarare faction filing the court application in Harare HC 8802/19 seeking the relief couched in the following terms;

“IT IS ORDERED THAT:-

The 1st respondent’s letter dated 17th October (Annexure B) be and is hereby declared null and void. (this is the Minister’s letter)

The National Executive Committee comprised of: Berrington Zvanyanya, Samuel Jinjika, Peter Chikamhi, Zaruro Manara be and is hereby authorised to run the 5th applicant’s affairs (which is the Union, ZISMIWU) until April 2020.

The 1st and 2nd respondents (which are the Minister and the Registrar f the Ministry responsible for Trade Union) are ordered to pay the costs”.

The above court application HC 8802/19 is still pending in Harare High Court.

On the other hand the applicants in the other faction filed on 1 November, 2019 in this court application for review HC 392/19 seeking the following relief;

“IT IS ORDERED THAT;

The decision of the respondent (being the Minister) to suspended election held by the applicant on Sunday 6 October, 2019 which elected Samuel Mubanda, Nokhuthula Dube, Patrick Masaiti, Moses Mutonho, Taruvinga Madenyaya and Simon Ndale as members of the applicant’s National Executive Committee, (that is the union ZISMIWU) be and is hereby set aside.

That Samuel Mubango, Nokhuthula Dube, Patrick Masaiti, Moses Mutonho, Taruvinga Madenyaya and Simon Ndale be and are hereby confirmed to have been duly elected to 1st applicant’s National Executive.

Respondent (being the Minister) shall pay costs of suit on a legal practitioner and client scale.”

This leads me to this Urgent Chamber Application.

In this Urgent Chamber Application the applicants seek interim relief couched in the following terms;

“INTERIM RELIEF SOUGHT”

That pending the return date the decision of the respondent dated 17 October, 2019 setting aside elections held by the applicant on Sunday 6th October, 2019 be and is hereby suspended and stayed from execution.

Pending the return date the affairs of the 1st applicant (that is the Union ZISMIWU) shall be governed by the National Executive Committee comprising Samuel Mubango, Nokhuthula Dube, Patrick Masaiti, Moses Mutonho, Taruvinga Madenyaya and Simon Ndale who were elected at the elections held on Sunday 6th October, 2019.

FINAL ORDER SOUGHT

The decision of the 1st respondent dated 17th October, 2019 setting aside the elections held by 1st application on Sunday 6th October, 2019 be and is hereby suspended pending the determination of the application for Review filed by the applicants in the High Court of Zimbabwe, Masvingo.

Pending the determination of the Application for Review filed by the applicants in the High Court of Zimbabwe, Masvingo, the affairs of the 1st applicant shall be governed by the National Executive Committee elected into office on 6th October, 2019, comprising of Samuel Mubango, Nokhuthula Dube, Patrick Masaiti, Moses Mutonho, Taruvinga Madenyaya and Simon Ndale.

The respondent to pay costs of this application on a higher scale as between client and attorney.”

Despite the seemingly similar nature of the interim relief and final relief sought. What I find interesting is that in all the matters, being HC 8802/19 filed in Harare and the ones filed in Masvingo HC 392/19 and HC 393/19 both factions purport to act on behalf of the Union (ZISMIWU) which is made the applicant. This reinforces my earlier on observation that this whole sage is simply centred on the control of the Union (ZISMIWU) by rival factions leading to a plethora of cases filed in various courts in Harare and Masvingo. I believe this rather lengthy outline lays the background facts which inform this Urgent Chamber Application.