Zimbabwe Schools Development Associations and Committees v The Registrar of Labour N.O. and National Association of School Development Associations & Committees

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/170/2016
HARARE, 17 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/170 /2016

HARARE, 17 FEBRUARY 2016 			     	CASE NO. LC/H/691/15

AND 18 MARCH 2016

In the matter between:-

ZIMBABWE SCHOOLS DEVELOPMENT ASSOCIATIONS		Appellant

AND COMMITTEES

And

THE REGISTRAR OF LABOUR N.O.					1st Respondent

And

NATIONAL ASSOCIATION OF SCHOOL					2nd Respondent

DEVELOPMENT ASSOCIATIONS & COMMITTEES

Before Honourable L.M. Murasi, Judge

For Appellant		Mr M. Nkomo (Legal Practitioner)

For 2nd Respondent		Mr W. Muzenda (Legal Practitioner)

MURASI J:

This is an appeal against the decision of Registrar of Labour allowing the registration of second respondent in terms of section 45 of the Labour Act, [Chapter 28:01].  Appellant is dissatisfied with the decision and has appealed to this Court.  Appellant’s grounds of appeal are as follows:

The Registrar erred at law by disregarding the general rule enshrined in section 45 (i) (iv) of the Labour Act [Chapter 28:01] on the desirability of reducing to the least possible member, the number of entities with which employees and employers have to negotiate.

The Registrar misdirected herself and erred at law when she observed the legal provisions contained in the Constitution and the Act allow for multiplicity of associations within the sector while she disregarded the provisions within which such multiplicity should be pursued.

The Registrar grossly misdirected herself when she held that objections were lodged by associations seeking to protect their turf in so-doing she abdicated her responsibility enshrined in section 45 (1) of the Labour Act to consider the representations made by interested persons against registration of the employers’ organisation.

The Registrar did not take into account the substance of the objections filed by the Appellant and the National Employment Council for the Welfare and Educational Association.

I should state that the 1st respondent was not represented at the hearing and no papers were filed on the Registrar’s behalf.

Mr Nkomo for the appellant stated that he abided by the documents filed of record.  He stated that the constitutional provision sought to be relied upon by the 2nd respondent should be read in tandem with the existing legislation which has not been struck down as being inconsistent with the Constitution.  It was submitted that the provisions of the Constitution do not operate in a vacuum and the relevant section, which is section 45 of the Labour Act, should have been interpreted accordingly.  It was argued in the heads of argument that the Registrar had violated the general rule in section 45 of the Act.  It was further submitted that 2nd respondent had not discharged the onus of showing the necessity of registering another association.  Mr Nkomo stated that the wording of the general rule in the section was “minimalist”, that is, the number of entities were to be kept as low as possible.  It was further stated that the 1st respondent had taken an armchair approach and drew a simplistic conclusion that was legally unsustainable.  Mr Nkomo further argued in his heads of argument that 1st respondent had disregarded evidence placed before her and submissions on the undesirability of adding more employers’ organisations.

Mr Muzenda for the 2nd respondent also stated that he abided by the heads of argument filed of record.  He submitted that the Constitution was the supreme law and every legislation was to confirm to its provisions.  In this vein it was stated that every employer and employee was free to form organisations of their choice or to join other organisations.  It was argued that the 1st respondent was therefore correct in stating that section 45 of the Labour Act allowed for a plurality of organisations.  It was further submitted that the registration of 2nd respondent created a platform for employers to make a choice as to which organisation to join.  Mr Muzenda stated that 1st respondent could not be faulted for registering 2nd respondent.

In making a determination of this matter it is pertinent that the provisions of the statute be considered.  The factors which 1st respondent was required to take into account in making a decision are provided for in section 45 of the Labour Act.  It is also correct that the Act enjoins the 1st respondent to give reasons for the decision arrived at.  Section 45 (1) (a) (i) provides that 1st respondent should take into account representations made by parties to the application concerned.  Considerations in sub-paragraphs (iii), (iv) and (vi) also relate to the peculiarities of the concerned undertaking.

I will re-produce 1st respondent’s findings which are given as “Observations”.  She states thus:

“1.	Objections are being lodged by associations seeking to protect their turf and limit competition.  There are no thresholds stipulating how many members entitle an applicant to registration.

2.	The legal provisions as contained in the Constitution and the Act allow for multiplicity of associations within a sector.

3.	Registration of another employer organisation will not upset the collective bargaining set up for the industry but will in fact broaden the base for consultation before collective bargaining.  It would afford the majority of employers in the industry access to representation by a registered employer’s organisation of their choice.  Healthy competition will rid the sector of monopolistic tendencies and infuse good governance.”

A reading of these “observations” leaves on with the inescapable view that there must have been a preconception first and then a determined passion to support the pre-conception.  The Court does not find any reasons for arriving at the decision.  There is no analysis of the evidence that was given by parties during the accreditation proceedings.  I will not lose sight of the fact that the 1st respondent is not a court of law and therefore the detail that would be expected from a court of law would be somewhat lacking in the record.  However one would expect 1st respondent to at least give reasons for arriving at that decision.

A similar matter came up for consideration by McNally JA (as he then was) in Agricultural Labour Bureau & Another vs Zimbabwe Agro-Industry Workers Union 1998 (2) ZLR (SC).  In that case the Court held that the brief reasons given by the Registrar were such that it was not possible to determine whether the Registrar had properly exercised his discretion as a number of important salient questions were left unanswered.  The Court had this say:

“It seems to me, that he has not done so.  This does not necessarily mean that he has come to a wrong conclusion.  It means only that neither the LRT (Labour Relations Tribunal) nor this court can determine whether he has properly exercised his discretion.  He has not complied with the requirements:

that he shall give his reasons;

that he shall take into account the considerations set out in section 45.”

In casu, it is not possible to determine why 1st respondent found 2nd respondent’s application to be meritorious as against the submissions of the appellant.  No reasons are given for arriving at the decision.  1st respondent merely states as follows:

“Objections are being lodged by associations seeking to protect their turf and limit competition.”

The reasons for making such a finding remain obscure.  The failure to give reasons also do not show whether 1st respondent has compiled with the provisions of section 45 under which several criteria are to be taken into account in determining the application.  There is a dearth of evidence ex facie the determination to arrive at the conclusion that section 45 was complied with. This Court is not in a position to comment on the merits of the application made by 2nd respondent and the opposing submissions made by appellant in the tribunal a quo due to insufficient evidence.

In my view the 1st respondent is required to give reasons and to take specified considerations into account.  If he fails to do so, the proper course of action will be to remit the matter to 1st respondent to re-hear the matter.

In the result the Court makes the following order:

The appeal is allowed.

The decision of the Registrar is set aside.

The matter is remitted to the Registrar for re-hearing, in light of observations made by this Court.

Each party to bear its own costs.

Donsa-Nkomo & Mutangi Legal Practice, appellant’s legal practitioners

Muzenda & Chitsama Attorneys, 2nd respondent’s legal practitioners