Dunlop Zimbabwe (Pvt) Ltd & 2 Ors v Zimbabwe Chemicals, Plastics and Allied Workers' Union & Anor

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/16/2016

HARARE, 19 NOVEMBER 2015 &

22 JANUARY 2016

CASE NO LC/H/CON/169/2012

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/16/2016

HARARE, 19 NOVEMBER 2015 & CASE NO LC/H/CON/169/2012

22 JANUARY 2016

In the matter between

DUNLOP ZIMBABWE (PVT) LTD 1ST APPLICANT

And

RUBBER PRODUCTS MANUFACTURERS (PVT) 2ND APPLICANT

LTD

And

GENERAL BELTINGS, A DIVISION 3RD APPLICANT

OF G B HOLDINGS LIMITED

And

THE ZIMBABWE CHEMICALS, PLASTICS 1ST RESPONDENT

AND ALLIED WORKERS’ UNION

And

THE ACTING REGISTRAR OF LABOUR 2ND RESPONDENT

Before the Honourable L M Murasi J

For the Applicants O Matizanadzo (Legal Practitioner)

For the 1st Respondent Ms S Nyagura (Legal Practitioner)

MURASI J:

This is an application for review of the decision of the Acting Registrar made in terms of section 45 of the Labour Act [Chapter 28:01].

The facts in this case are common cause. The first respondent applied to the second respondent for a variation of the scope and operation of the trade union. The second respondent published the notice as required in the Gazette giving the statutory notice. Thereafter the second respondent proceeded to grant the application. The applicants are dissatisfied with that decision and have approached this court for relief.

Mr Matizanadzo for the applicants stated that he largely abided by the documents filed of record. Indeed he filed voluminous documents which included precedent which he relied upon. He stated that the second respondent had not complied with the rules of natural justice in that he had not invited the applicants to make representations before making a decision. He stated that even though notice had been given in the Gazette the second respondent was enjoined to invite the applicants to make representations. He submitted that the decision of the second respondent affected the operations and status of the applicants and the second respondent was required to make the consultations before arriving at the decision.

Mr Matizanadzo heavily relied on the judgment of McNALLY JA (as he then was) in Agricultural Labour Bureau & Anor v Zimbabwe Agro-Industry Workers Union 1998 (2) ZLR 196 (SC). He stated that the case was “on all fours” with the present matter and as such the application for review should be granted.

Ms Nyagura for the first respondent also stated that she abided by the documents filed of record. She submitted that the application was misplaced as the applicants had not responded to the notice that was gazetted by the second respondent. It was submitted that the second respondent had complied with the statutory provisions and would not have been expected to send out individual notices apart from the gazetting as provided for by the law. Ms Nyagura further submitted that the applicants had waived their right to be heard by not responding to the notice issued by the second respondent. Ms Nyagura argued that the application should accordingly be dismissed.

In determining this matter, it is imperative that the provisions of the statute be analysed. The application by the first respondent was made in terms of section 39 of the Labour Act [Chapter 28:01]. Section 39 provides:

“39 (1) Any interested person, including the trade union or employers’ organisation concerned, may apply to the Registrar for the variation, suspension or rescission of the registration of a trade union or employers’ organisation.

(2) …

3) On receipt of an application in terms of subsection (1) or a direction in terms of subsection (2), the Registrar shall publish notice in the Gazette of the application or direction and shall, in such notice invite any person who wishes to make any representations relating to such application or direction to lodge, with him such representations within thirty days of the date of publication of the notice and to state whether or not he wishes to appear in support of such representations at accreditation proceedings.”

In my view the provisions of section 39 are clear and unambiguous whether there is an application or direction by the Minister, the second respondent is enjoined to issue a notice in the Gazette. The notice invites all interested persons to make representations to the second respondent. Section 42 provides for notices for accreditation proceedings. Section 45 enjoins the second respondent to take into consideration the submissions made by parties in making a determination.

The first issue to determine is whether adequate notice was issued by the second respondent. Mr Matizanadzo argued that the second respondent was obliged to invite the applicants to make representations as they were interested parties. Was the second respondent enjoined to personally invite the applicants? Section 31 (2) of the Interpretation Act [Chapter 1:01] provides:

”When any act, matter or thing is by enactment directed to be done by the President or by any Minister, notification that such act, matter or thing has been done may, unless a specified instrument or method is by that enactment prescribed for the notification, be by notice published in the Gazette which shall for all purposes whatsoever be prima facie proof that such act matter or thing has been done.”

Section 39 of the Labour Act prescribes that the second respondent shall give notice in the Gazette. The applicants do not dispute this fact. Was the second respondent supposed to give any further notice to the applicants? Should the second respondent have investigated as to who were interested parties in the matter after issuing the notice in the Gazette? Could this have been the intention of Parliament when it promulgated the statute in question? I am of the view that Parliament would hardly have envisaged a situation being propounded by the applicants. The applicants are deemed to have received adequate notice when this was published by the second respondent in the Gazette. Was there a breach of the audi alteram partem principle? In Smith v A G Bophutatswana 1984 (1) SA 196 it was held:

“The maxim audi alteram partem is deeply embedded in administrative and judicial procedures and is always presumed to be implied. It can however, where it is not entrenched, be excluded by the Legislature expressly or by necessary implication.”

In casu, the legislature has deemed it sufficient to have the notice to be done by way of publication in the Gazette. The necessary implication is that every person is deemed to have been notified by such notice.

The second respondent proceeded to make a decision in terms of section 45 of the Labour Act. The applicants take issue with the decision made. The applicants argue that the second respondent did not take into account the parameters set out in section 45. What should be pointed out is that when the decision was made, the applicants had not forwarded any submissions to be taken into account by the second respondent. This means that the second respondent proceeded to make a decision with the information that had been submitted. Mr Matizanadzo argued that the matter squarely falls into the same category as the Agricultural Labour Bureau case supra. A reading of the Agricultural Labour Bureau case shows that ZAWU was an unregistered trade union which made an application to the Registrar. The interested parties opposed the application. This means that the Registrar in that case had to consider the merits of the application from ZAWU and the submissions of GAPWUZ which was an existing trade union. The Learned Judge in that case came to the conclusion that based on submissions placed before the Registrar, he had not made an informed decision. Can this argument be extended to the present matter? The applicants were jolted into action after the second respondent had already made the determination.

The applicants had not shown any interest in opposing the application by the first respondent. The applicants seem to suggest that the second respondent has refused or neglected to give them reasons for arriving at the decision that she did. Mr Matizanadzo suggested that this court cannot run away from the Agricultural Labour Bureau case as it is a Supreme Court decision. I have already stated that the facts are different in that in the Agricultural Labour Bureau case the Registrar had to consider two opposing submissions whereas in casu the second respondent considered the first respondent’s application which was not opposed. The principle of stare decisis is a very important one. However it should relate to where the superior court has laid down what the law is supposed to be. It cannot extend to cases where the facts are materially different. To this end I associate myself with the views of MAKARAU JP (as she then was) in Ashanti Goldfields Zimbabwe v Bonde 2009 (2) ZLR 371 (H) where she had this to say:

“I am bound by all decisions of the Supreme Court on points of law. Where however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I am not aware whether this judgment has been overturned on appeal. However I am persuaded by the reasoning in the above judgment. The matter in casu did not have any representations from the other parties. To what extent can the decision of the second respondent be classified as irrational? The court has not heard evidence as to the nature of the misdirection by the second respondent. The applicants aver that the second respondent should have taken into account the provisions of section 45 of the Labour Act. That section provides for considerations to be taken into account. For example, the second respondent was supposed to take into account representations by employers and employees. As already stated, these were missing as the applicants ignored the notice to file the submissions. Section 45 (2) provides that the burden of proving that there should be a departure from the general rule enshrined in section 45 (1)(a)(iv) is on the person alleging it. This means that for the Registrar to make such an assessment there should be a contrary view. No such contrary view was placed before the second respondent.

In conclusion, the court finds that the applicants have been unable to prove on a balance of probabilities that the second respondent fell into error in arriving at the decision that she did. There was compliance with the statutory provisions and the applicants are deemed to have waived their rights when they did not file submissions following the notice published in terms of section 39 (3) of the Labour Act.

In the result the application is dismissed with costs.

Matizanadzo & Warhurst, applicants’ legal practitioners

Matsikidze & Mucheche, 1st respondent’s legal practitioners