Chitungwiza Municipality v Zimbabwe Urban Council's Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/469/14
HARARE 16TH JULY, 2014
CASE NO.LC/H/APP/354/14
AND 18TH JULY, 2014
JUDGMENT NO.LC/H/469/14
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/469/14

HARARE 16TH JULY, 2014			    CASE NO.LC/H/APP/354/14

AND 18TH JULY, 2014

In the matter between:-

CHITUNGWIZA MUNICIPALITY  					   APPLICANT

AND

ZIMBABWE URBAN COUNCIL’S WORKERS UNION 		   RESPONDENT

Before:			The Honourable G Mhuri, Judge

The Honourable B.S. Chidziva Judge

The Honourable R. Manyangadze Judge

For Applicant:	Mr. Matsikidze (Legal Practitioner)with

Mr. Mafongoya (Legal Practitioner)

For Respondent:	Mr. T. Mboko (Legal Practitioner)

MHURI J.,

On the return day of a show cause order issued calling upon the Respondent to show cause why the Collective Job Action embarked on by its members should not be disposed of, Respondent raised a preliminary point attacking the issuance of the two Show Cause Orders.  The main argument being that the first Show Cause Order was not issued and signed by the responsible Minister (Minister Goche).  The second Show Cause Order issued by Minister Goche was a non event as at the 10th June, 2014 that Show Cause Order was non-existent.

The factual background which is common cause is that:-

On the 24th June, 2014 Applicant applied to the Ministry of Public Service, Labour and Social Welfare for the issuance of a Show Cause Order seeking that pending the issuance of a disposal order, the threatened collective job action be terminated.

The parties appeared before a Labour Officer who after hearing submissions recommended to the Minister that he issues a Show Cause Order.

These recommendations were placed before the official whose signature is being contested that it is not the responsible Minister’s (Minister Goche).  This official endorsed his signature as the Minister and dated it 10th July, 2014.  He however did not indicate by deleting the inapplicable whether or not he approved.

By issuing and signing the Show Cause Order it can be inferred that he approved it.  This Show Cause Order was issued, signed and dated 10th July, 2014.

Except for Mr. Matsikidze’s submission from the bar, that it is Minister Parirenyatwa’s signature, it is not known whose signature it is.  No evidence was adduced to that effect.

On the same date Minister Goche, who is the responsible Minister in terms of the Labour Act [Chapter 28:01] (the Act), issued and signed the second Show Cause Order.  This is also being challenged.

Having considered the submissions by both parties and the papers filed of record we find that the first Show Cause Order is a nullity.  This is because it is not known who signed it. To say from the bar that it was Minister Parirenyatwa’s signature without any proof to support that is unacceptable.

The Act in Section 2 defines Minister-

“Minister means subject to section 83, the Minister of Public Service, Labour and Social Welfare or any other Minister to whom the President may, from time to time, assign the administration of this Act”

It is common cause that the Minister for Public Service, Labour and Social Welfare is Minister Goche.

Even if it was signed by Minister Parirenyatwa there is no proof that he was authorised to do that.  It was Mr. Matsikidze’s submission that another Minister, can sign on behalf of another if it is an emergency.

If Minister Parirenyatwa was authorised to issue and sign the Show Cause Order, why then would Minister Goche issue and sign another order, more so on the same day?

This in our view persuades us that Minister Parirenyatwa did not have the authority to issue and sign the Show Cause Order.

To that end therefore the first Show Cause Order is a nullity.

As for the second Show Cause Order issued by Minister Goche, the circumstances under which it was issued are not clear.  Mr. Matsikidze submitted that Minister Goche was ratifying Minister Parirenyatwa’s Show Cause Order.  We are not persuaded by this submission at all.  Why would Minister Goche ratify Minister Parirenyatwa’s actions by issuing another Show Cause Order and why should this Show Cause Order bear the same date (10th July, 2014) as the first one?

We are persuaded by Respondent’s submission that as at the 11th of July, 2014 when they filed an urgent chamber application with the High Court seeking a declaratory order, declaring the first Show Cause Order a nullity on the basis that it was not issued and signed by the responsible Minister, namely Minister Goche, the second Show Cause Order had not been issued.  This submission went unchallenged.

Consequently we find that equally the second Show Cause Order is a nullity as it is based on the papers containing recommendations which were also signed by the same official.

See MUCHAKATA VS NETHERBURN MINE 1996 (1) ZLR 153 (S) at 157 B-C

“If an act is void, then it is in law a nullity.  It is not only bad but incurably bad....  And every proceeding which is founded on it is also bad and incurably bad.

You cannot put something on nothing and expect it to stay there.  It will collapse”. per KORSAH JA (as he then was) quoting with approval LORD DENNING MR in the case of MacFoy v United Africa Company Limited (1961) 3 All ER 1169 at 1172.

To that end we grant Respondent’s prayer that these disposal proceedings be terminated.

The Court was advised that the Collective Job Action was called off, and that this was confirmed by the Applicant’s Chamber Secretary.  Respondent produced evidence to that effect of a newspaper cutting (Herald 12 July, 2014).  This was not rebutted by the Applicant.

Applicant produced a letter by Respondent’s Legal Practitioner dated 15th July, 2014 in a bid to show that Respondents are threatening to go back on strike.  If this is the case, there is nothing that prevents the Minister from proceeding in terms of section 106 subsection (1) of the Act.

Further if Respondent’s members are still engaged in the collective job action the Minister is still empowered to proceed in terms of this section.

If Respondent embarks on another collective job action, as submitted by Respondent’s counsel this will be a fresh Collective Job Action for which Respondent will have to go through the required procedures in terms of the law.

In the result we uphold the point in limine.

Accordingly the Court will not proceed to deal with the disposal order as required by Section 107 of Labour Act.

................

G. MHURI

JUDGE

................

B.S. CHIDZIVA

JUDGE

................

R.F. MANYANGADZE

JUDGE

Matsikidze and Mucheche – Applicant’s Legal Practitioners

Donsa-Nkomo and Mutangi – Respondent’s Legal Practitioners