Minister of Public Service, Labour and Social Welfare v Forrester Estates (Pvt) Ltd and Godfrey Kasindi and 1729 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 13 JULY, 2022 AND 31st March, 2023
NO.LC/H/100/23 CASE NO. LC/H/560/22
MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE
APPLICANT
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 13 JULY,
2022 AND 31st March, 2023

JUDGMENT
NO.LC/H/100/23 CASE NO.
LC/H/560/22

MINISTER OF PUBLIC SERVICE, LABOUR
AND SOCIAL WELFARE

APPLICANT

And

FORRESTER ESTATES (PVT) LTD
1st RESPONDENT
And

GODFREY KASINDI AND 1729 OTHERS
2nd RESPONDENT
Before the Honourable B.T Chivizhe, Judge;

For Appellant - In Default

For the 1st - Mr G. Ndlovu (Legal Practitioner)
Respondents

For 2nd Respondent - Mr B. Makururu (Legal Practitioner)

CHIVIZHE, J:

The delay in the hand down of this judgement is sincerely regretted. The matter was placed before me as an application for the issuance of a disposal order. The application was made pursuant to Section 107 (1) of the Labour Act [Chapter 28:01] as amended. The application was opposed by 2nd Respondent and supported by 1st Respondent. Both Respondents appeared for a hearing on the 13th of July 2022. The 2nd Respondents having taken 6 points in limine through their Heads of Argument both counsel were granted an opportunity to address the court on the points. After listening to their submissions the court reserved its ruling. The following constitutes my ruling on the points *in limine* as taken.

(a) **WHETHER THE APPLICATION WAS DEFECTIVE DUE TO CITATION OF A NON-EXISTENT PARTY.**

The $2^{nd}$ Respondent contended that the present application cites a party known as ‘Godfrey Kasindi and 1729 others’. At law however there is no such an entity. The application was therefore defective to that extent.

The $2^{nd}$ Respondent further contended that as the application before the court was for a Disposal order the order could not for practical purposes be made against ‘1729 others’, as there is no such entity existent. At the same time Godfrey Kasindi being the only one properly cited could not have engaged in a ‘collective job action’ on his own so an order issued by this court against him alone would also be an incompetent order.

The $2^{nd}$ Respondent further submitted that ‘1729 others’ is also not a legal persona. It thus has no right to sue and be sued. $2^{nd}$ Respondent Counsel referred to **CT Bolts vs. Workers Committee SC 16/12.** It was further contended that although the record contained a list of the alleged 1729 this however would not assist the $1^{st}$ Respondent in its case. In **Zimsec Employees vs. Zimsec HH 430-12** the High court had noted that ‘Zimsec Employees’ was not a legal persona and the fact that the names of the employees had been supplied in the record was immaterial. $2^{nd}$ Respondent position was that this court should in the circumstances find the present application to be fatally defective. In oral submissions, Mr Makururu, for the $2^{nd}$ Respondent emphasised that Godfrey Kasindi, who is the deponent to $2^{nd}$ Respondent Affidavit and who is the Chairman of the Workers’ Committee was not included in the list originally referred to the Minister. He was however strangely included in the show cause order issued by the Minister. Mr Makururu also alluded to the fact that the record only carries 1086 names. It does not contain 1729 names as suggested by the $1^{st}$ Respondent.
 The $1^{st}$ Respondent, in its response, averred that the point as taken by $2^{nd}$ Respondents had no merit. The $2^{nd}$ Respondents had been properly cited. The application had cited Godfrey Kasindi individually as the Chairman of the Workers committee. He had been individually served with the application and accepted service on his own behalf and on behalf of the other 1729 employees. In regards the 1729 employees their names were reflected in the schedule attached to the application. Mr Ndlovu, for the 1st Respondent, in oral submissions indicated that there were several labour authorities which had dealt with the issue of citation that were distinguishable from the cases as referred to by the 2nd Respondent.

undertook and did file after the proceedings authorities including FMI Zimbabwe

(Private) Limited vs. Employers of FMI Employees (Private) Limited

LC/H/33/14. He also filed Dube and 167 others vs. Unfireight Limited and Another SC 101/99 which dealt with the issue of competency of service upon the Chairman of Workers Committee in situations where the employees are engaged in a collective job action.

After considering the parties submissions and the authorities referred, it is my finding that the first preliminary point clearly has no merit. The 2nd Respondent counsel does not dispute that Godfrey Kasindi was individually served with the application and that he accepted service on his own behalf and on behalf of the employees who were involved. The fact that his name was not included in the original list referred to the Minister for a show cause order is clearly neither here nor there. It is also the position at law that service upon the Workers Committee is competent for the purposes of these proceedings. The court was aptly referred by the 1st Respondent to the case authority in Dube and 167 others vs. Unfireight Limited and Another SC 101/99. On page 6 of the cyclostyled judgement, the late Muchechetere JA stated as follows;

“The workers’ committee was aware that the disposal order would be issued and that, judging by the contents of the show cause order, the former would order the strikers to go back to work immediately. This time when the disposal order was issued in the same manner they refused to accept service of it. I consider that their refusal was simply meant to frustrate the proper course of the action which was being pursued. The workers’ committee was not entitled to refuse service in the circumstances and its refusal cannot be allowed to frustrate the first respondent’s legitimate actions. They are in the circumstances bound to have been served with the disposal order - they were indeed aware that its contents were to order the immediate return to work. And service to the workers’ committee is service


The second issue taken under this head is also clearly meritless. It is apparent from the record of proceedings that the Applicant in this case cited ‘Godfrey Kasindi and 1729 others’. There is however placed inside the record a list of the employees. In other words the ‘1729’ others are clearly identified. Although the number of employees involved was referred to as against the individual citation of the employees, this situation is however not unusual in collective job actions given that they normally involve large numbers of employees. The issue of individual citation therefore cannot arise in such circumstances. The court was again aptly referred to a judgment of this court in **FMI Zimbabwe (Private) Limited vs.**

**Employees of FMI Energies (Private) Limited** judgement number **LC/H/33/14.**

It is also important to note that the facts in the High Court decision in **Zimsec Employees vs. Zimsec HH 430-12** relied upon by the 2nd Respondents are also distinguishable from the facts in the present matter. In that matter the issue raised pertained to the issue of legal persona of the Applicant. The submission by the Respondent was that the Applicant, not being a legal persona, the application was improperly before that court. The High Court, upheld that point on the basis of previously decided matters such as **CT bolts (Pvt) Ltd vs. Workers Committee SC 16/12** where the Supreme Court had found that the Workers Committee not having been given the right to sue or to be sued could not properly be before that court.

The present matter is clearly distinguishable from the circumstances in the **CT**

**Bolts vs. Zimbabwe Bata Shoe Company Limited vs. Bata Shoe Company Middle Management SC 30/12.** In this case the Applicant in view of the matter being one involving a collective job action has cited the Chairperson of the Workers Committee which is proper. The Applicant has also, correctly so in my view, cited 1729 other employees who have then been individually listed in the record.


The first preliminary point clearly stands to be dismissed.


(b) WHETHER GODFREY KASINDI IS PROPERLY CITED

The next issue to be determined is the contention made by 2nd Respondent counsel that as Godfrey Kasindi does not even appear in the names on the Schedule initially referred to the Minister in order for a Show Cause Order to be issued it means that he is also improperly cited before this court.

The 1st Respondent counter submission is that the point is redundant. The Minister is said to have issued a Show Cause Order including Godfrey Kasindi as it was clear after an investigation that he had also been involved in the collective job action. His actions were clearly in accordance with the law. There is no reason why Godfrey Kasindi’s name should have first been included in the Schedule. The point taken in my view is once again meritless. It is indeed clear upon a perusal of the record of proceedings that the name of Godfrey Kasindi was not included in the Schedule that was referred to Minister. His name was also not included in the original application to the Minister for a Show Cause Order.

Section 106 of the Labour Act [Chapter 28:01] outlines the procedures that ought to be followed leading to the issuance of a Show Cause Order. Section 106 of the Labour Act [Cap 28:01] reads as follows;

“106 Show cause orders

1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a “responsible person”) threatens, recommends, encourages, incites, organises or engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an “unlawful collective action”), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.


2) A show cause order—a. shall specify—


i. the date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

ii. the order or action desired or proposed;

b. may direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed or suspended.

It is clear on the basis of Section 106 the Minister has wide powers, he can even on his own initiative issue an order against any responsible person. The fact that Godfrey Kasindi was not included in the original schedule is clearly irrelevant. The Minister, after investigating the matter was at liberty to include his name in the show cause order.

(c) Whether the Show Cause is defective for want of compliance with Section 106 (2) (a) of the Labour Act [Chapter 28:01]

The 2nd Respondent submits under this head that the Show Cause Order issued in this case falls foul of the peremptory provisions in Section 106 (2) (a) of the Labour Act [Chapter 28:01]. The Show Cause Order does not list the date, time and place at which the responsible person must appear before the Labour Court in order to show cause why a Disposal order cannot be issued. 2nd Respondent makes the further point that the provisions in Section 106 (2) (a) being couched in peremptory terms, a failure to comply with them results in a fatally defective application. In other words this results in a nullity. 2nd Respondent has placed reliance on Munyaradzi Gwisayi in his book Labour and Employment Law in Zimbabwe at page 361. On this basis the 2nd Respondent prayer is for the defective show cause order to be set aside.

1st Respondent, in counter, submits that whilst indeed the provisions are couched in peremptory norms there is however a need for the court to take a practical and purposive interpretation of the provisions. Indeed the show cause order is issued by the Minister of Labour but the Minister is not in a position to indicate the time and date when the parties may appear before the Labour court. It is the Registrar of court, who, upon receipt of the show cause order, refers the
 6 matter to the Judge. The Judge is the one who then determines the time, date, place depending on his/her schedule. The court agrees entirely with 1st Respondent submission on this point. It is indeed correct that **Section 106 (2) (a)** places the onus on the Minister in issuing a Show Cause Order to ensure those requirements are met. It is also correct that the provisions are couched in peremptory norms through the use of “shall”.

In practice however the Minister is not in a position at the time that show cause order is issued to specify the date, time and place at which the Labour Court will sit in order for the responsible person to appear and Show Cause why a Disposal Order should not be issued. As outlined by 1st Respondent Counsel the show cause order is issued minus the specific details as to when, where, parties may appear before the Labour Court. Applications for Disposal Orders given their urgent nature are normally referred to the Judge on duty for Urgent Chamber Applications. The Judge will direct the Registrar to set down the matter on a date, time and place as convenient to the Judge usually within the same week the Judge is on duty and in accordance with such procedures that are practicable and in accordance with **Rule 18** of the **Labour Court Rules, 2017**. This is what happened in this case. The failure by the Minister to comply with the provisions in **Section 106 (2) (a)** in this case would not in my view render the Show Cause Order to be defective.

The 2nd Respondent has, in any event, not pointed to any prejudice suffered in this case as a result of the procedure followed. The point also stands to be dismissed.

(d) **WHETHER THE APPLICANT WAS FUNCTUS OFFICIO**

The next point taken is that the Minister in this case irregularly issued two show cause- orders. The submission was made that in May 2022, the 1st Respondent applied for a show cause order against the 2nd Respondents on the basis that they had embarked on a collective job action commencing from 3rd of May 2022 up to the date of the application. On the 16th of May,
2022 a Show Cause Order was issued by the Applicant. The 2\textsuperscript{nd} Respondent concedes that the show cause order had erroneously referred to a trade union and omitted the employees’ names.


The Minister given the circumstances had then issued a second show cause order. The submission by 2nd Respondent is the Minister was already *functus officio* when he issued the second order. He could not on his own, without inviting the parties to make submissions abandon the first show cause order and substitute with the second show cause order. This was tantamount to him reviewing his own decision and substituting the first decision citing the union and choosing instead to cite the employees.

The 1st Respondent in counter submitted that the first show cause order carried a patent error as noted by 2nd Respondent. It cited the union rather than the employees. Upon the matter being referred to this court that error was noted. This resulted in the matter before the court being withdrawn under reference **LC/H/426/22**. The second show cause order was then issued a month later by the Applicant. The 1st Respondent counsel did not address himself to the issue as to whether the Minister was *functus officio* or not at that stage.

In my finding the Minister had no authority to issue a second show cause order in this case as he was *functus officio*. This much is clear from the provisions in **Section 106** of the **Labour Act [Cap 28:01]**. There is no provision made for the Minister to issue a second show cause order in whatever circumstances. I am also fortified in taking this approach by a similar decision taken in **Zimbabwe Graphical Workers Union Vs (1) Federation of Master Printers of Zimbabwe (2) Minister of Public Service Labour and Social Welfare SC 25/07** where the late Sandra JA came to the following conclusion;

"In my view the Minister did not have the power to issue the second Show Cause Order. I say so because there is no provision in the Act in terms of which the Minster, after issuing a Show Cause Order directing parties to appear before the Labour Court to show cause why a disposal order should not be made in terms of S.107 could issue another show cause order in the same matter, and in respect of the same dispute directing parties for the second time to appear before the Labour court to show cause why another disposal order should not be made in terms of S107."
 The $1^{st}$ Respondent has justified the Minister actions on the basis of an error having been made on the first show cause order. The error according to $1^{st}$
 Respondent was known to 2nd Respondent. In my considered view the circumstances would still not allow the Minister to issue a second show cause order. He ought to at least have summoned both parties to appear before him and explain why in the circumstances he needed to withdraw the first Show Cause Order. He certainly could not do that in the absence of the parties. The provisions in Section 106, in any event, envisage a situation where the Minister can call the parties involved wherever it is necessary. I believe this would be one such scenario. The Minister having failed however to involve the parties he could not lawfully issue a second show cause order. I am satisfied the point taken is clearly merited.

(e) WHETHER THE MATTER IS LIS ALIBI PENDENS

The 2nd Respondent contended that following the issuance of first show cause order the matter was set down before this court under reference LC/H/426/22. That matter according to 2nd Respondent is still pending. 2nd Respondent submitted that it is not proper for this court to purport to sit again and determine the present application which is essentially the same matter arising from the same factual circumstances. The 2nd Respondent position is that the attempt by 1st Respondent to withdraw the matter in LC/H/426/22 was null and void on the basis that the application for a show cause order is made by the Minister it can only be withdrawn by the same. The Minister however did not appear before this Court to withdraw the matter.

The 1st Respondent Counsel submitted in counter that the point was not merited. It was common cause the Minister had issued the first show cause order to the Workers Union and not to the employees. This was clearly an error on the Minister’s part. The 2nd Respondent counsel having raised this point in proceedings under LC/H/462/22 the matter was consequently withdrawn before the Honourable Hove J with both Respondents consent. The 1st Respondent further contention was that 2nd Respondent counsel could not properly raise the same point in these proceedings in view of that consent. It was also $1^{st}$ Respondent position that the defence of *lis pendens* could not apply as the parties in the two show cause orders are totally different parties.


The point taken is in my view not with merit. It is clear that for defence of *lis pendens* to apply the two actions must be between the same parties and the two actions must concern the same subject matter and be founded upon the same cause of action. See Kawondera vs. Mandebvu 2006 (1) 110 (S). In this case the parties in the two show cause orders are clearly different. The matter under reference LC/H/426/22 having been in any event struck off the roll following a withdrawal of the application before my sister, Hove J the matter is certainly not pending before this Court. The Court in any event is not at liberty to seek to indirectly review the decision taken by a fellow Judge. The order remains extant. The point clearly stands to be dismissed for that reason.

(f) WHETHER THERE IS STILL A COLLECTIVE JOB ACTION BEING THREATENED OR TAKING PLACE

The last point taken by 2nd Respondent is that there is no job collective action currently taking place. A show cause order issued by the Minister under Section 106 should by operation of law be placed before this court for issuance of a Disposal Order where there is a collective job action taking place.

The 1st Respondent counter-position is that the application for a disposal order is normally triggered by employees engaging in a collective job action. In this case the show cause order had been issued a month after the termination collective job action. Even then the 1st Respondent position is the employer is still entitled in such circumstances to proceed to apply for a disposal order as there is usually issue of deprivation of work by employees, the employer will therefore need to dock salaries and carry out disciplinary measures against errant employees. The show cause order is therefore tied in to the aspect of payment of wages to cover the period of collective job action. In this case 2nd Respondent had conceded through their papers that the collective job action was unlawful. The Minister had issued first show cause order during the period of the collective job action but had to withdraw that due to the error.


It is clear on the basis of **Section 106 (1)** of the **Labour Act [Cap 28:01]** that show cause orders are ordinarily placed by the Minister before the Labour Court for issuance of a disposal order during the currency of a collective job action. This is clear through the wording of **Section 106 (1)** referred to *supra*. Through **Section 106 (2)** (b) however, the Minister may also direct the termination, postponement or suspension of the collective job action pending the issuance of a disposal order by the Labour Court. This provision clearly shows that the disposal order can be issued even after the termination of the collective job action. The 1st Respondent through its Notice of Opposition did not dispute the second cause order which was issued after the termination of the collective job action. As submitted by 1st Respondent there is still a need for the Labour Court to actually determine on the issue of lawfulness and otherwise of the collective job action so as to protect the employees from unlawful docking of salaries or disciplinary action. The employer rights are also protected in the disposal order as it is through this the employer is granted authority to withhold salaries for the period the striking employee were not at work. See

**National Railways of Zimbabwe vs. ZARU SC 8/05**. There is therefore nothing untoward in a show cause order being placed before the Labour Court even after the unlawful job action has been terminated. The circumstances in this case are however unique in that the Minister had issued the first show cause order but had proceeded to withdraw it due to an error.

It is the finding of this court that it was that action of issuing a second show cause order when he was *functus officio* that has invalidated the process. The fact that there was no longer any collective job action at the time when he issued the second show cause is not material.


In the result, it is ordered as follows;

The application be and is hereby struck off the roll with costs.
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