National Construction and Allied Trades Workers Union of Zimbabwe v Registrar of Labour and National Employment Council for the Construction Industry of Zimbabwe

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IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/352/25
HELD AT HARARE: 25 SEPTEMBER 2025
CASE NO. LC/H/787/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGEMENT NO. LC/H/352/25 HELD AT HARARE: 25 SEPTEMBER 2025		CASE NO. LC/H/ 787/25

NATIONAL CONSTRUCTION AND ALLIED TRADES	APPLICANT WORKERS UNION OF ZIMBABWE

AND

REGISTRAR OF LABOUR	1ST RESPONDENT

NATIONAL EMPLOYMENT FOR THE CONSTRUCTION	2ND RESPONDENT INDUSTRY OF ZIMBABWE

Before the Honourable Makwande J

Mr C. Mucheche, for Applicant 1st Respondent, In Absentia

Mr M. Mandevere, for 2nd Respondent

MAKWANDE J:  This matter was brought before this court as a review against the decision of the Registrar of Labour essentially allowing the registration of an amended Constitution by the 2nd Respondent, National Employment Council for the Construction Industry of Zimbabwe without resolving a deadlock on seat allocations between the Applicant a Construction & Allied Trades Workers Union and ZCATWU another Construction & Allied Workers Union.

BACKGROUND

The Applicant challenges that the act by the 2nd Respondent deprived it of its rights to be represented at such employment council under section 56 and section 29 (4)

(f) of the Labour Act [Chapter 28:01] (“the Act”) as read with section 65 of the Constitution.

The Applicant therefore seeks the following (the draft order is quoted as it appears in the application hence the errors).

The Application be and is hereby granted.

The decision by 1st Respondent dated 1 August 2025 impliedly excluding the Applicant from its lawful and legitimate right to be represented before the employment in terms of section 4, 29 (4) (f), 56 of the Labour Act as read with section 65 of the Constitution of Zimbabwe be and is hereby set aside as irregular, illegal, unlawful and null and void ab initio.

Any decisions or actions done or a taken by the 2nd Respondent improperly constituted by virtue of 1st Respondent’s decision dated 1 August 2025 irregularly and illegally excluding the Applicant be and is hereby set aside in their entirety.

Costs of suit to be paid by the 1st and 2nd Respondent on a legal-practitioner scale, jointly and severally, the one paying the other to be absolved.

The 2nd Respondent has raised preliminary issues in respect of the application as follows;

Non- joinder – Respondent alleges that the application is fatally defective due to the non-joinder of Zimbabwe Construction and Allied Trade Workers Union (ZCATWU) in the proceedings. It argues that the Union has a substantial interest in the matter as the dispute has always been between the Union and the Applicant.

The 2nd point which has been abandoned by the Respondent was that of Wrong Application in which it was argued that the Applicant should have brought the matter as an appeal and not review.

Defective Draft Order – The respondent argues that what the Applicant seek is not related to the Application before the court. The Applicant did not seek for the remittance of the matter back to the Registrar to make a determination.

I shall now deal with the issues raised by the 2nd Respondent with reference to the cases cited by parties in their submissions.

PRELIMINARY ISSUES

Non- joinder

The law on non-joinder is settled that the situations where a party can only be joined to proceedings is limited. The test on the situations where non- joinder applies, particularly substantial interest in the issues involved, was extensively discussed in the case of Mugano v Fintrac & Ors HH 394/14. The court quoted United Watch & Diamond Co & Others v Disa Hotels LTD & Anor 1972 (4) SA 409 which summarized the position on joinder emerging from various case law that: -

“It is settled law that the right of a defendant to demand the joinder of another party and the duty of the court to order such joinder or ensure that there is a waiver of the right to be joined, (and this right and this duty appear to be co extensive) are limited to cases of joint owners, joint contractors and partners and where the other party has a direct and substantial interest in the issues involved, and the order which a court may make.

In Henri Viljoen (Pty) LTD v Awerburch Brothers 1953 (2) SA 151 (O) HORWITZ AJP analysed the concept of “direct and substantial interest” and after an exhaustive view of the authorities, concluded that it connoted ….(see at page 169)

‘an interest in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation’. He also reiterated the emphasis in such cases where joinder is being sought on

the need for a legal interest in the subject matter of the action which stood to be affected by the judgment of the court.”

The 2nd respondent has argued that ZCATWU has a substantial interest in the matter and its non-joinder is fatal. The question to be answered as guided above is whether

ZCATWU has an interest in the right which is the subject matter of the litigation which stands to be affected by the judgment of this court?

The Applicant submits that its right under section 56 and section 29 (4) (f) of the Act as read with section 65 of the Constitution were violated. Section 29 (4) (f) of the Act speaks to the right of a registered trade union to be entitled to form or be represented on any employment council. Section 56 of the Act speaks to the formation of councils and admission of new parties to employment councils. A reading of the provision will show that such employment councils are comprised of registered employer organisations and registered trade unions and votes are allocated proportionately according to the number of members of the employee member. If a dispute arises relating to the number of votes allocated to a trade union or employer organization, it shall be referred to the Registrar for determination.

The letter dated 1 August 2025 by the Acting Registrar of Labour had the following title RE: REQUESTED MEETING TO BREAK THE IMPASSE BY ZCATWU

and went on to authorize the process of registration of the amended constitution. It is clear that the subject matter which was hindering the registration of the constitution was the impasse between the Applicant and ZCATWU. The judgment by this court in the Appeal will have the effect of setting aside the decision by the Registrar allowing the registration of the constitution and ultimately will affect not only the 2nd Respondent but also ZCATWU which is a trade union forming the Council in terms of section 56 of the Act.

In view of this, this court holds that ZCATWU has a substantial legal interest in the matter before the court and will stand affected by the judgment of the court. It must therefore be joined to these proceedings.

This court agrees with the Respondent as held by PATEL J. as he then was in

Rodger & Ors v Muller & Ors HH 2/10 that failure to join a party to proceedings

does not amount to a fatal procedural irregularity. The rule requires that whatever has gone wrong must be put right and a determination made on the merits.

Defective Draft Order

This court finds the argument by the respondent that the draft order by the Applicant is defective to be unsubstantiated. The prayer sought is clear and unambiguous. Applicant seeks the setting aside of the decision by the Registrar of Labour to have the amended constitution registered despite the impasse on the vote allegation. The argument by the Respondent that Applicant should have sought the matter to be referred back to the Registrar to make a determination lacks substance. The court is being asked to determine on the gross irregularity by the 1st Respondent in authoring the letter dated 1 August 2025 and nothing more. In the event that this court is wrong, the draft order is not defective to the extent that it cannot be amended.

Disposition

Wherefore it is hereby ordered that:

The point in limine raised in respect of non-joinder is hereby upheld. The second point in limine in respect of a defective draft order is dismissed for lack of merit.

The Application for Review be and is hereby struck off the roll for failure to join a party with a direct and substantial interest in the matter.

Each party shall bear its own costs.