MAKARUDZE & ANOR v BUNGU & ORS 2015 (1) ZLR 15 (H)

Flynote

Administrative law — domestic remedies — exhaustion of before approaching court — domestic remedies must be adequate to provide relief — no provision in constitution of organisation to provide such relief — party entitled to approach court for relief

Employment — Labour Court — appeal from to Supreme Court — does not suspend operation of order appealed against — remedies available to appellant seeking execution or stay of execution pending appeal

Employment — trade union — membership — who may be a member — only person employed by some employer in relevant undertaking or industry $\in$ eligible for membership in union

Headnote

The constitution for the third defendant, the Harare Municipal Workers' Union, was registered in 1962. One of its 11 listed objects was to regulate the relations between members and their employers, and to protect and further the interests of members in relation to their employers. Membership was $\square$ open to employees of the Harare City Council. The governing body of the Union was the second defendant, the Executive Committee, members of which would be elected at the annual general meeting and would serve for one year. They would be eligible for re-election. They could be removed from office on the decision of a general meeting, as well as by $\square$ resignation, suspension, or expulsion from the union or absenteeism. The first defendant was the chairman of the executive committee. The first plaintiff was the vice-chairman and the second plaintiff was chairman of a sub-committee of the union.

The plaintiffs sought a declaratur that the executive committee's term of office had expired; that the seats on the committee were vacant; and that $\square$ the first defendant had ceased to be a member of the union, having been dismissed by the council. They sought a consequential order directing $\square$ the union to hold elections for the executive committee.

The defendants opposed the relief sought, arguing (1) that the plaintiffs, being mere members of the union, had no locus standi; (2) that the plaintiffs had not exhausted their domestic remedies and should not have approached the court; (3) that there had been an elective general meeting in 2012; (4) that the first defendant was appealing against the $\square$ ruling of the Labour Court upholding the determination of an arbitrator that he had been dismissed in 2010 and consequently the arbitrator's ruling was suspended; and (5) that the union had a new constitution which opened up membership, not only to employees, but to "any person" which wished to abide by the requirements of the constitution.

Held, that locus standi in judicio refers to one's right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that one has a direct and substantial interest in the subject-matter and outcome of the litigation. Such an interest is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the court. The court will be slow to deny locus standi to a litigant who seriously alleges that a state of affairs exists, within the court's area of jurisdiction, where someone in a position of authority, power or influence abuses that position to the detriment of members or followers. If the plaintiffs seriously felt that the first defendant had become ineligible to hold any office within the union, let alone to continue clinging onto the position of chairman, such a state of affairs would be so intolerable that the court would not fetter itself by pedantically circumscribing the class of persons who might approach it for relief. There could be no better demonstration of, or justification for, locus standi in judicio than the plaintiffs' position in this matter. Undoubtedly, they had a direct and substantial interest in the management of the affairs of the union.

Held, further, that the general view is that a litigant should be discouraged from rushing to the courts before he has exhausted such domestic procedures or remedies as may be available to his situation in any given case. He is expected to obtain relief through the available domestic channels unless there are good reasons for not doing so. However, the domestic remedies must be able to provide effective redress to the complaint. Furthermore, the alleged unlawfulness complained of must not be such as would have undermined the domestic remedies themselves. The court will not insist on an applicant first exhausting domestic remedies where they do not confer better and cheaper benefits. Here, the constitution of the union had no provision dealing directly or indirectly with the plaintiffs' grievances. The first defendant had avoided or prevented the holding of any of the constitutional meetings of the union at which the plaintiffs' grievances might have been heard.

Held, further, that, in terms of s 4 of the Labour Act [Chapter 28:01], it is a fundamental right of an employee to be a member or officer of a trade union. The thrust of the Act is that a trade union is an organisation for employees, not for just "any other person". The union was a trade union. To allow a person who is not an employee to become a member of a trade union in a particular undertaking is a concept alien to trade unionism. Although s 28(1)(b)(ii) of the Act refers to "the right of any person to membership if he is prepared to abide by the rules and conditions of membership", that reference is to any person employed in that undertaking or industry. To open up membership of a trade union in a particular undertaking to a person who may not be employed by an employer in that undertaking or industry, as the defendants contended, would lead to monstrous absurdities. Consequently, if the first defendant had been dismissed from the council's employment he lost the right to keep his membership, let alone to become an office bearer in the executive committee, unless he had been conferred with honorary membership in terms of clause 5(k) of the new constitution, in which event he would have no right to hold office or to vote.

Held, further, that the common law is clear that a notice of appeal, save in certain exceptional cases, automatically suspends the execution of the judgment appealed against. However this rule only applies to the superior courts of inherent jurisdiction; the Labour Court, as a creature of statute, is not such a court. Unless empowered by law to do so, an inferior court or tribunal or other authority has no power to order the suspension of its own orders or judgments. The noting of an appeal against the judgment or order of such a court, tribunal or other authority, in the absence of statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is to be appealed against. There is no provision in s 92F of the Labour Act (which allows for appeals from the Labour Court to the Supreme Court on points of law only, and only with leave) which empowers the Labour Court to make interim determinations pending the determination of an appeal. An aggrieved party who desires a stay of execution, or execution pending appeal is not without a remedy. He can approach the High Court for appropriate interim relief, or the Supreme Court, where the appeal will be pending. In any event, all that was pending was an application for leave to appeal, not the actual appeal.