National Engineering Workers Union & 2 Ors v National Employment Council for the Engineering iron & Steel Industry (HC 8111 of 2019; HH 686 of 2020) [2020] ZWHHC 686 (30 October 2020)

NATIONAL ENGINEERING WORKERS UNION

and

WISE GARIRA

and

SHEPHERD MASHINGAIDZE

versus

NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING

IRON & STEEL INDUSTRY

and

ENGINEERING IRON & STEEL ASSOCIATION OF ZIMBABWE

and

BEKEZELA MANGENA

and

BEN MAMABARA

and

SILAS MKODZA

and

RIGHTON MOYO

and

DENNIS MUCHENU

and

ABEL GUMPO

and

CLEMENT KAUSA

HIGH COURT OF ZIMBABWE

MUSHORE J

HARARE, 30 October 2020

Opposed Motion-Special Plea

S Ushewokunze, for the plaintiffs

T Danana, for the 1^stdefendant

Z Mazikani, for the 2^nd& 3^rd defendants

K Masasire, for the 4^th to 9^th defendants

MUHORE J: The first plaintiff is the National Engineering Workers Union. The second plaintiff is the elected President of the first plaintiff and the third plaintiff is the Secretary General of the first plaintiff.

The 1^stdefendant is the National Employment Council for the Engineering and Iron and Steel Industry. The 2^nddefendant is the Engineering and Steel Association of Zimbabwe with the 3^rd defendant being the second defendants current President. The 4^thto 9^th defendants are employees in the industry.

The plaintiff’s instituted a court action against the defendants in which they sought the following order:

THAT:

1. It is hereby declared that the 4^th to 9^th defendants are not legitimate members or holders of any office position in the 1^st plaintiff and/or 1^st Defendant;

2. It is hereby declared that 2^nd to 9^thDefendants, or anyone claiming though them, have no locus standi to act for or represent, in any capacity whatsoever, the 1^st plaintiff and/or the 1^st Defendant or any institution/without the express approval of the 1^st Defendant;

3. Defendants are hereby interdicted whatsoever in the management/affairs in the 1^stPlaintiff or deciding who should represent the 1^st plaintiff or deciding who should represent the 1^stPlaintiff in the 1^st defendant;

4. It is hereby declared that the 2^nd Plaintiff (or any person succeeding him as President of the 1^st Plaintiff) be allowed to chair the proceedings/business of the 1^st defendant up to the 31^st of the month of December that follows the lapse of a period of 12 calendar months from the date of this court’s order after which the chairmanship of the 1^st Defendant shall proceed on a rotational basis and in terms of 1^st Defendant’s constitution.

5. The 4^th to 9^th defendants (or anyone acting through them) are hereby interdicted from entering the 1st plaintiff’s property/premises or using the 1^st plaintiff’s name, letterhead or logogram.

6. The 1^st, 2^nd and 3^rd defendants (or anyone acting through them) are hereby ordered not to deny the Plaintiffs/1^st Plaintiff’s officials full and unfettered access to all the premises /property and business of the 1^stdefendant.

7. In respect of all acts, meetings, negotiations, decisions, resolutions, building contracts, collective bargaining agreements, payments or transactions conducted or executed by the Defendants (or some or one of them) at/or in the name of the 1^st Defendant or 1^st plaintiff, without the participation and approval of the plaintiffs from 1^st November 2018 to the date of this court’s order, be and are hereby declared null and void.

8. The chairing of the meetings/business of the 1^st defendant by the 3^rd defendant or any person who succeeds him before the grant of this order is hereby declared null and void.

9. The 1^st defendant pay to the plaintiff the industrial outreach monetary disbursements computed at 1% if the Engineering Monetary Fund’s monthly takings, plus 1% of the defendants’ monthly takings, with effect from the 1^st November 2018 to the date of this court order.

10. Any monetary payments purportedly made to the 1^st plaintiff through the defendants or through modes/accounts other than 2^nd plaintiff, 3^rdplaintiff or the 1^st plaintiff’s official bank accounts, are hereby declared void.

11. The 2^nd to 9^th defendants shall bear the costs of this suit on an attorney and client scale”

The plaintiffs’ claims were met with a special plea being filed by the defendants on 3 aspects. The first aspect being a special plea on a lack of locus standi in judicio by all three plaintiffs stating that the first plaintiff body was a bogus union and a fabrication and that it belonged to the 2^nd and 3^rd plaintiffs who had been ousted by the entire engineering industry. Further it was specially pleaded that the 2^nd and 3rd plaintiffs were no longer office bearers in the genuine workers’ union and that they had been dismissed from employment and therefore the 2^nd and 3^rd plaintiffs had no capacity to sue on behalf of the National Workers Engineering Union. The second special plea was that the matter was pending in another court (lis alibi pendens) under case number HC 8051/19; in which the defendants claim was to cause the 2^nd and 3^rd plaintiffs to be barred from instituting proceedings from filing suits in the name of the 1^st plaintiff. Lastly the defendants specially pleaded that matter had already been determined in part (res judicata) in that some of the claims in the declaration had already been determined and disposed of by the Magistrates Court. The defendants sought a dismissal of the plaintiffs’ claims in their entirety, if all or any of those special pleas were upheld.

Thereafter, the defendants seemed to have abandoned taking the next procedural steps in pursuing the determination of the special pleas immediately as laid out under O 20r138 (a) and (b) of the High Court Rules, 1971; in that they failed to set the matter down for the hearing of their special pleas separately. O 21 r 138 reads as follows: -

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception or application to strike out has been filed—

(a) the parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of rule 223;

(b) failing consent either party may within a further period of four days set the matter down for hearing in accordance with subrule (2) of rule 223;

In the result, the special pleas would be held over for determination at the trial in this matter; but in the meantime and in terms of (c) the defendants were required to have plead over the merits of their respective cases in terms of r 138 (c) which prescribes that: -

“(c) failing such consent and such application, the party pleading specially, excepting or applying, shall within a further period of four days plead over to the merits if he has not already done so and the special plea, exception or application shall not be set down for hearing before the trial”

When no pleas on the merits were forthcoming from the defendants, on the 17^th January 2020 the plaintiffs filed a notice to plead and intention to bar and served the same on the defendants. The defendants elected deliberately to withhold their pleas on the merits and cited their reason for that decision as being that they had pending special pleas which were yet to be disposed off by the court. Such an irreverent approach by the defendants resulted in the defendants being barred from pleading and appearing in accordance with O 12 r 83 which states:-

“83. Effect of bar

While a bar is in operation—

(a) the registrar shall not accept for filing any pleading or other document from the party barred; and

(b) the party barred shall not be permitted to appear personally or by legal practitioner in any subsequent proceedings in the action or suit;

except for the purpose of applying for the removal of the bar”

Strictly taken, the Registrar ought not have accepted any further pleadings from the defendants; but assumedly the Registrar’s office would have been hard pressed to pick this up, given the voluminous court filings which are processed in that office, and also because filings on the defendants’ behalves were being done by registered legal practitioners.

Be that as it may, the matter ended up being enrolled on my opposed roll for determination. Strangely the defendant’s counsel audaciously appeared to argue their cases and avoided informing the court that their clients had no right of appearance in accordance with O12 83 (b) supra. The defendants’ counsel ought to have been fully aware that they had no right of audience with the court on the opposed roll of matters.

See: General Leasing (Pvt) Ltd v Allied Timbers Zimbabwe (Pvt) Ltd HH76-15 at pages 2 and 3.

Furthermore, none of the defendants filed Heads of Argument within the dies stated in the rules, which further exacerbated their attempt at appearing to argue the matter.

Also, at the hearing of the matter the defendants represented that the plaintiffs’ counsel had consented to waive the late filing of all the defendant’s heads of argument. However, the indictment against counsel for the defendants was that they avoided informing the court about the status of the bar pertaining to their clients’ pleas; which I was already in effect. The latter issue was brought to my attention by the plaintiffs’ counsel who then made an application for judgment to be entered in favour of the plaintiffs, given that the defendants had not made the merits of their respective cases known to the court.

The court agreed with the plaintiffs’ submissions in that respect.

Accordingly, I granted the plaintiffs judgment in their favour as prayed and as elaborated above. What I did add to the order was a reference to the specific rules which had guided my determination as is shown on the order which I granted on the 23^rd January 2020.

Ushewokunze Law Chambers, plaintiffs’ legal practitioners

Caleb Mucheche & Partners Law Chambers, 1^st defendant’s legal practitioners

Lunga Attorneys, 2^nd& 3^rd defendants’ legal practitioners

Musoni Masasire Law Chambers, 4^th – 9^th defendants’ legal practitioners