National Union of Metal & Allied Industries in Zimbabwe v Registrar of Labour & 5 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/666/16
HELD AT HARARE 1 JUNE 2016
CASE NO
JUDGMENT NO LC/H/666/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/666/16

HELD AT HARARE 1 JUNE 2016				CASE NO LC/H/85/16

& 4 NOVEMBER 2016

In the matter between:

NATIONAL UNION OF METAL & ALLIED INDUSTRIES		Appellant

IN ZIMBABWE

And

REGISTRAR OF LABOUR 						1st Respondent

And

MINISTER OF PUBLIC SERVICE					2nd Respondent

LABOUR & SOCIAL WELFARE

And

AUTOMOTIVE & ALLIED WORKERS UNION			3rd Respondent

And

NATIONAL ENGINEERING WORKERS UNION			4th Respondent

And

ELECTRONICS COMMUNICATIONS & ALLIED			5th Respondent

WORKERS UNION

And

MOTOR TRADE WORKERS UNION OF ZIMBABWE		6th Respondent

Before The Honourable Manyangadze, J

For 1st & 2nd Respondents		No appearance

For 3rd Respondent			A Chambati (Legal Practitioner)

For 4th Respondent			B Makurura (Legal Practitioner)

For 5th Respondent			No appearance

For 6th Respondent			No appearance

MANYANGADZE J:

This is an appeal against the determination of the Registrar of Labour (the Registrar) in terms of which she limited the scope of registration of the appellant to the iron and steel production, ferro alloy, motor vehicle assembly and manufacturing industries.

The appellant filed an application with the Registrar for registration as a trade union covering all workers in the metal industry.  This would involve workers in the industries currently represented by the 3rd, 4th, 5th and 6th respondents.

The application was made in terms of Section 33 of the Labour Act [Chapter 28:01] (the Act).

In a determination issued on 16 January 2016, the Registrar granted the application only for the sectors already indicated.

Aggrieved by this determination, the appellant noted an appeal with this court.  The grounds of appeal are stated as follows:

“1.	The honourable Registrar G Kanyayi erred in denying NUMAIZ registration as she failed to realise that employees have a right to form a trade union.

The honourable register erred at law by failing to uphold the freedom of association as guaranteed by the constitution of Zimbabwe.

The honourable Registrar erred at law as she limited and confined the scope of coverage of NUMAIZ to only employees in iron and steel production, ferro alloy and motor vehicle assembly and manufacturing industries excluding automotive, engineering and electronics.

The honourable erred at law by failing to respect provisions of the Labour Act.”

At the hearing of the matter, submissions did not proceed into the merits.  The

Respondents who appeared viz, 3rd and 4th respondents, raised a point in limine.  They objected to the locus standi of Mr S Dhliwayo, the trade union representative who appeared on behalf of the appellant.

Mr Chambati, on behalf of the 3rd and 4th respondents, submitted that the appellant was not yet a registered entity.   The determination of the Registrar, in particular paragraph 4 thereof, gave certain conditions before appellant could be given a certificate of registration.  Appellant could only be registered, and therefore only exist as a trade union, upon meeting the conditions precedent.  Mr Chambati contended that section 29 (2) of the Act gives corporate personality only to a registered trade union.  An unregistered trade union with its purported representative, would have no locus standi before the court.  Section 29 (2) of the Act provides:

“Every trade union, employers organisation or federation shall, upon registration, become a body corporate and shall in its corporate name be capable of suing and being sued, of purchasing or otherwise acquiring, holding or alienating property, movable or immovable, and of doing any other act or thing which its constitution requires or permits it to do or which a body corporate may, by law, do.” (Underlining added)

It is clear this provision confers legal persona to a registered trade union.  The appellant did not take issue with that.

It is necessary to look at the operative part of the Registrar’s determination.  It reads as follows:

“ Given the objections and consideration of the need to ensure operation of unions the applicant is registered with its scope being non managerial employees in iron and steel production, ferro alloy and motor vehicle assembly and manufacturing industries.  The two merging unions Zimbabwe Metal Energy and Allied Workers Union and Motor Vehicle Manufacturers Workers Union of Zimbabwe cease to exist upon issue of certificate for registration of certificate of registration to National Union of Metal and Allied Industry of Zimbabwe.”

It is not clear what condition is made precedent to the registration of the appellant, from a mere reading of the determination.  The respondents did not clarify their point.  There is nothing ex facie the determination, that reads like a condition precedent.  It is simply granting registration to the appellant, in the sectors indicated.  The de-registration of the Motor Vehicle Manufacturers and Metal Energy and Allied Workers Unions is a consequence of the issuance of a certificate of registration to the appellant.

Be that as it may, the point remains that following the determination, appellant would have to take the necessary steps to be issued with a certificate of registration in the specified sectors.  It is clear that having appealed against the determination, it had not taken such steps.  Thus, at the noting of the appeal, the appellant was not a registered trade union.  The appeal was noted on 17 February 2016.

In response to the challenge to its locus standi, the appellant submitted that it has since been registered.  This was done after it concluded a Deed of Settlement with the 1st and 2nd respondents, in terms of which the 1st and 2nd respondents consented to the order sought by the appellant.  Consequent to this Deed of Settlement, appellant was issued with a certificate of registration that included the sectors that had been initially excluded.

The appellant submitted copies of the Deed of Settlement dated 20 May 2016, and a Certificate of Registration, dated 30 May 2016.  On the basis of this, appellant sought to withdraw the appeal, saying that it had been overtaken by events.

The respondents objected to this withdrawal.  They argued that it could

not be validly made, as the Deed of Settlement on which it was based was not concluded with them, but only with the 1st and 2nd respondent.  Indeed, there is nothing on record to indicate that the Deed of Settlement was served on the rest of the respondents.  There is nothing to indicate that the other parties to the litigation were consulted.

What this means is that whilst the appeal was pending, the Registrar’s decision was varied. It was varied to the extent of granting the relief sought in the appeal, before the court had determined the appeal.  It was based on an agreement entered into by the appellant with 2, out of 6 respondents.  This was irregular.  In the absence of an agreed position by all parties involved, the litigation must run its full course, with the parties obtaining judgment from the court on the disputed issues.

In my view, there is merit in the objection raised by the 3rd and 4th respondents, on the legal status of the appellant and its representative.  As already indicated, it was to the effect that unless and until the appellant is registered in terms of the Registrar’s determination of 16 January 2016, and duly granted a certificate of registration in terms thereof, it is not a body corporate in terms of section 29 (2) of the Act.  This deprives appellant of locus standi.  The point in limine must, in the circumstances, be upheld.   It is accordingly ordered that;

The point in limine raised by the 3rd and 4th respondents be and is hereby upheld.

The appeal be and is hereby struck off the roll.

Makururu & Partners, appellant’s legal practitioners

Chambati, Mataka & Makonese Attorneys,  3rd respondent’s legal practitioners