Mendelson Moyo & 23 Ors v Minister of Public Service, Labour and Social Welfare, N.O. & 2 Ors

### Preamble
HB 246/22
HC 2564/19
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MENDELSON MOYO

And

STENFORD VUNDLA

And

LOWANI NYONI

And

JETHRO TSHABALALA

And

TONGAI NCUBE

And

SABELO KHOZA

And

JONAH NYATHI

And

SIMUDZA MULEYA

And

COSMAS MPOTE

And

ROBERT SIBANDA

And

GEDION MUMPANDE

And

EMMACULATE MHLANGA

And

VUKANI MASEKO

And

JIME RIVAL

And

SHEILA RUDZUNA

And

NTOMBIZAMI NCUBE

And

NGQABUTHO MOYO

And

BRIAN NYAMANDE

And

MOSES DARLINGTON SIBANDA

And

SHERINAH SIBANDA

And

MLONDI MLOTSHWA

And

BHEKISIPHO DUBE

And

LAZAROUS MUDENDA

And

NATHAN SEITH NGWENYA

Versus

MINISTER OF PUBLIC SERVICE,

LABOUR AND SOCIAL WELFARE, N.O.

And

ATTORNEY-GENERAL N.O

And

MUNICIPALITY OF VICTORIA FALLS

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 22 JUNE AND 29 SEPTEMBER 2022

Opposed Application

M. Ncube, for the applicants

Ms T.E Kamema, for the 1st and 2nd respondents

K. Ngwenya, for the 3rd respondent

MOYO J: 	This is an application for a declaratur wherein the 24 applicants seek an order concluded in the following terms:-

“A declaratur be and is hereby issued that the 1st respondent’s decision contained in her letter dated 14 February 2017 addressed to the 3rd respondent’s Town Clerk that sections 21 and 22 of CBA being part of the conditions of service of the 3rd respondent be suspended is null, void and of no force or effect in that the ground relied upon by 1st respondent for her decision is ultra vires section 25 (2) of the Labour Act Chapter 28:01.”

The background of this matter is that the applicants being the employees of 3rd respondent entered into a collective bargaining agreement (hereinafter referred to as the CBA)  in terms of section 25 (1) of the Labour Act (Chapter 28:01) which provides thus:-

“Every collective bargaining agreement which has been negotiated by a Workers Committee shall be referred by the Workers Committee to the employees and the Trade Union concerned, and, if approved by the Trade Union and by more than 50 percent of the employees, shall become binding on the employer and the employees concerned.”

It is in the purview of this section that the applicants and 3rd respondent entered into the CBA being the subject matter of this application.  The terms and conditions of the CBA are irrelevant for purposes of this application but what is relevant are the Minister’s (1st respondents) actions to suspend the operations of the CBA in terms of section 25 (2) of the same Act.  The section provides thus:-

“Where a collective bargaining agreement which has been negotiated by a Workers’ Committee contains any provision which is, or has become

inconsistent with this Act or any other enactment or

(b)	(subsection repeated)

(c)	unreasonable or unfair, having regard to the respective rights of the parties, the Minister may direct the parties to the agreement to negotiate, within such a period as he may specify, an amendment to the agreement in such a manner or to such an extent as he may specify, and he may give such other directions relating to the operation of the agreement pending its amendment as he may deem fit, and such directions shall be binding on the parties.”

The applicants’ case is that on or about 6 February 2009 the Workers’ Council of the 3rd respondent entered into a Collective Bargaining Agreement for all the employees of the 3rd respondent.  The CBA was duly registered and applied by the parties.  It remained in force until in March 2017 when 1st respondent sought to suspend the CBA citing that it negatively affected the operations of Council.  The applicants’ bone of contention is that the 1st respondent’s interference with the CBA is not in accordance with the law as she has no such authority to interfere on the grounds stated in her letter, that is to suspend pays of the CBA on the strength that they “negatively affected the viability of Council.”   The applicants accordingly seek a declaratur that 1st respondent’s purported interference is unlawful and therefore null and void.

The 1st respondent raised a point in limine, that is to say, the applicants should not be heard by this court before exhausting available remedies.  The 1st respondent’s opposing affidavit together with the Heads of Argument, simply refer to the exhaustion of internal remedies without specifying them.  The 1st respondent refers to a settlement of the dispute through dialogue and negotiations.  There is no reference at all to stipulated remedies in terms of the law which remedies would suffice to resolve the dispute.  It was imperative on the 1st respondent to state in no uncertain terms the available remedies and where they are provided for.

For this reason the preliminary point has not been substantiated in any manner and I cannot uphold it.  It is accordingly dismissed.

On the merits, the letter of the Minister dated 14 February 2017, was written after it had come to the Minister’s attention that the manner in which the gratuity provisions are structured negatively affects the viability of Council, that in terms of section 25 of the Labour Act, the Minister was directing the parties to renegotiate that conditions No. 21 and 22 of the CBA were suspended with immediate effect.

The problems with the 1st respondent’s letter dated 14 February 2017

(1)	To start with, as suggested by applicants, section 25 (2) of the Labour Act does not give the Minister powers to act in the manner that she did.  Clearly, as the section is alluded to herein, it does not give the 1st respondent the power to suspend the operations of a CBA or part thereof by reason of negative effects on the viability of Council.  The Minister should have stuck to the enabling section in her interference.  She should have either pointed out that the CBA was unreasonable or unfair, given the respective rights of the parties.  The Minister instead gave a reason that is not provided for in section 25 and yet that is the section from which she derived the authority to intervene.  If the Minister wanted to intervene in terms of that section then she was duty bound to expressly confine herself on the wording of her interference to the provisions of the enabling legislation.  Anything else would mean that the Minister acted outside the purview of that section and therefore sought to exercise authority that she did not have.  For that reason, her actions would then be ultra vires the enabling legislation and consequently null and void.

It is for these reasons that I would grant relief as sought in paragraph a of the Draft Order.

I accordingly order as follows:-

1.	It be and is hereby declared that the 1st respondent’s decision dated 14 February 2017 addressed to 3rd respondent’s Town Clerk, that sections 21 and 22 of the CBA be suspended is null and void and of no force or effect as the ground relied upon by the 1st respondent is not provided for by the relevant legislation and her actions are consequently ultra vires the enabling legislation, namely section 25 (2) of the Labour Act Chapter 28:01.

2.	That 1st respondent bears the costs of suit.

Ncube Attorneys, applicants’ legal practitioners

Civil Division of the Attorney-General’s Office, 1st and 2nd respondents’ legal practitioners

Dube, Nkala and Company c/o T.J Mabhikwa and Partners, 3rd respondent’s legal practitioners