ZCTU & Ors v Nkiwane & Ors (8572 of 2011) [2015] ZWHHC 462 (19 May 2015)

1 HH 462-15 8572/11 ZIMBABWE CONGRESS OF TRADE UNIONS 1ST PLAINTIFF and LOVEMORE MATOMBO N. O 2ND PLAINTIFF and ZIMBABWE ENERGY WORKERS UNION 3RD PLAINTIFF and PROGRESSIVE TEACHERS UNION OF ZIMBABWE 4TH PLAINTIFF and ZIMBABWE LEATHER, SHOE AND ALLIED WORKERS UNION 5TH PLAINTIFF and CIVIL SERVICE EMPLOYEES ASSOCIATION 6TH PLAINTIFF and ZIMBABWE RURAL DISTRICT COUNCIL WORKERS UNION 7TH PLAINTIFF and ZIMBABWE GRAPHICAL WORKERS UNION 8TH PLAINIFF and NATIONAL AIRWAYS WORKERS UNION 9TH PLAINTIFF and COMMERCIAL AND ALLIED WORKERS UNION OF ZIMBABWE 10TH PLAINTIFF and COMMUNICATION AND ALLIED WORKERS UNION OF ZIMBABWE 11TH PLAINTIFF versus GEORGE NKIWANE 1ST DEFENDANT and SITHOKOZILE SIWELA 2ND DEFENDANT and RWATIPEDZA CHIGWAGWA 3RD DEFENDANT and JAPHET MOYO 4TH DEFENDANT and WELLINGTON CHIBHEBHE 5TH DEFENDANT and LUCIA MATIBENGA 6TH DEFENDANT and DICK TARUSENGA 7TH DEFENDANT and ENOCK MAHARI 8TH DEFENDANT and GIDEON SHOKO 9TH DEFENDANT and GENERAL AGRICULTURAL AND PLANTATION WORKERS UNION and FOOD FEDERATION AND ALLIED WORKERS UNION OF ZIMBABWE 11TH DEFENDANT 10TH DEFENDANT and COMMERCIAL WORKERS UNION 12TH DEFENDANT and PULP AND PAPER WORKERS UNION 13TH DEFENDANT HH 462-15 8572/11 HIGH COURT OF ZIMBABWE CHIGUMBA J HARARE, 16 June 2014, 4 ,5,6 February 2015 and 20 May 2015 Civil Trial R. Chingwena, for plaintiffs A. Muchadehama, for defendants CHIGUMBA J: The issue that falls for consideration in this matter is whether sufficient evidence has been led, on which this court might make a reasonable mistake and give judgment for the plaintiffs. The defendants applied for absolution from the instance at the close of the plaintiffs’ case. The parties were all card carrying members of the first plaintiff, a national labour centre, the Zimbabwe Congress of Trade Unions (hereinafter referred to as the ZCTU). The first plaintiff is a body corporate with perpetual succession and which is capable of entering into contractual agreements and other legal relations, and of suing, and being sued. The second plaintiff, Mr. Lovemore Matombo, took it upon himself, in his perceived capacity as the current president of the ZCTU, on the 1st of September 2011, to issue summons on behalf of all the plaintiffs, as against the defendants, in which the following relief was sought: 1. An interdict against the defendants that they; (a) Stop masquerading as executive members of the ZCTU. (b) Be barred from accessing the ZCTU’s head offices, situate on the 9th and 10th floors of Chester House, corner 3rs street and Speke avenue, Harare, or any other property of the ZCTU. (c) Be barred from using any of the ZCTU’s assets or any of its bank accounts. (d) Be barred from accessing any of the ZCTU’s funds. (e) Be barred from conducting any local or international business or communicating with anyone locally or internationally on behalf of the ZCTU. HH 462-15 8572/11 2. A declaratory order that; (a) The purported Congress held on behalf of the ZCTU is a nullity as it was in violation of the ZCTU’s Constitution and was not sanctioned by the ZCTU and Lovemore Matombo as required in terms of the Constitution and was a result of a flawed electoral process. (b) The 4th defendant Mr. Japhet Moyo’s election be declared null and void as it contravened the ZCTU’s Constitution and General Congress Resolution which does not provide for the election of a Secretary General but for appointment through a General Council. 3. Costs of suit. THE PLEADINGS According to the averments contained in the plaintiffs’ declaration the second plaintiff Mr. Matombo was the official president of the ZCTU as at 1st September 2011, and he was the duly authorized custodian of the ZCTU’s Constitution and mandated to ensure that the provisions of the Constitution were adhered to and complied with. The third, fourth, fifth, sixth, seventh, eighth and nineth plaintiffs were all duly registered trade unions which were affiliated to and or members of the ZCTU. The plaintiffs averred that the defendants were misrepresenting themselves and holding themselves out as new office bearers of the ZCTU. The plaintiffs averred further, that the on the 19th and 20th of August 2011 the defendants caused some union officials to attend a meeting in Bulawayo, a General Conference, without the authority of the ZCTU and Mr. Matombo. It was alleged that Mr. Matombo had written to the General Council of the ZCTU on the 1st of August 2011 and advised it to postpone the General Conference slated for 19 and 20 August 2011 because some of the processes which led to the General Conference were flawed. On 9 July 2011 the Credentials Committee had presented its findings to the General Council. Its report showed that there were certain unions without members and some whose membership figures had been inflated (tenth, eleventh, twelfth and thirteenth defendants). These unions allegedly failed to comply with the constitutionally provided methodology of verifying membership. They failed to produce registers, receipt books, employer confirmations, bank statements to prove member subscriptions, and other verification documents. They failed refused or neglected to cooperate with the verification ad hoc committee set up by the ZCTU. HH 462-15 8572/11 The plaintiffs averred further that the Women’s Advisory Council (hereinafter known as WAC) should not have proceeded with its meeting of 22-23 July 2011 until the finalization of the membership verification exercise. The fifth defendant Mr. Wellington Chibhebhe was charged with unconstitutionally putting a motion to have the disputed union’s membership decided by way of a vote of the General Council members. He was charged further, with convening an unauthorized Congress on the 19th and 20th of August. The defendants were averred to have unconstitutionally elected the sixth defendant Ms. Lucia Matibenga, to chair the ZCTU Congress. It was averred that the first to the ninth defendants were unconstitutionally elected into office at the ‘unauthorised ZCTU Congress’ held in Bulawayo on the 19th to the 20th of August 2011. The defendants filed a notice of appearance to defend on the 7th of September 2011, and requested for further particulars on the 27th of September 2011. The plaintiffs supplied further particulars on the 10th of July 2011. In response to the question from the defendants seeking the basis on which the ZCTU was suing them, the plaintiffs’ response was; “…in its institutional capacity, due to the fact that the defendants have no authority to act on its behalf’. Mr. Matombo insisted that he was the duly elected ZCTU president, having been legitimately elected to that position and not having been legitimately removed. In the defendants’ plea, it was denied that the ZCTU was suing them, or that Mr. Matombo was a legitimate representative, or president of the ZCTU. The defendants demanded proof from the third to the eleventh plaintiffs, that they were authorized by their constituent members to sue them. The defendants denied that any of them hoodwinked the officials who attended the ZCTU Congress in Bulawayo on the 19th to the 20th of August 2011. The defendants averred that the ad hoc credentials committee was not provided for in terms of the ZCTU Constitution and that its deliberations were unlawful. It was averred on behalf of the sixth defendant that she chaired the Bulawayo Congress of the ZCTU in accordance with the ZCTU Constitution and in accordance with the mandate given to her by the ZCTU General Council. The defendants denied that the Bulawayo Conference was unsanctioned, and averred that it was authorized by the General Council. It was averred by the defendants that members of WAC are entitled to attend the General Conference as delegates with voting powers. HH 462-15 8572/11 Defendants denied that the plaintiffs are entitled to the orders sought, and applied for costs on a higher scale for the reason that the plaintiffs’ claims are devoid of merit. In terms of the plaintiffs’ discovery affidavit, which was filed of record on the 10th of May 2013, in part one of the discovery schedule, the plaintiffs discovered all the pleadings, CD’s from the Conference, and all correspondence between the plaintiffs and the defendants. The Defendants’ discovery affidavit was filed of record on the 3rd of June 2013, and in its part one, the defendants discovered all the pleadings in this matter and in the reference cases HC 11473/11, 7815/11, HH313/11, SC 333/11, as well as the ZCTU Constitution, amongst other documents. According to the Joint Pre-Trial conference minute filed of record on the 16th of September 2013, the following issues were referred to trial: 1. Whether the first, third and eleventh plaintiffs authorized these proceedings against the defendants. 2. Whether the General conference of the 19th to 20th August 2011 was held contrary to the provisions of the ZCTU Constitution. 3. If the General Conference was not held in accordance with the ZCTU Constitution, what is the effect thereof. 4. The scale of costs, whatever the result. Three issues arise for determination at trial, when regard is had to the parties ‘joint pre- trial conference minute. The first concerns the locus standi of the first, third to eleventh plaintiffs to sue the defendants. The second demands that the provisions of the ZCTU Constitution be scrutinized and interpreted, and the third, involves an exercise of the court’s discretion in determining the scale of costs. THE EVIDENCE (a) Discovered Documents Plaintiffs’ bundle of documents was filed of record on the 5th of September 2014. Nine items appear on the index attached to the bundle. The first document is a letter from the Ministry of Public Service, Labour and Social Welfare dated 13 June 2014, and addressed to the plaintiffs’ legal practitioners of record. Document number three is the ZCTU General Council report to the HH 462-15 8572/11 ZCTU 5th General Conference held in Masvingo on the 23rd to the 24th February 2001, (record page 207). At record page 227 is the General Council Report to the ZCTU 6th ordinary Conference held on 19-20 May 2006 at the Celebration Centre. It was recorded that a consultative workshop had been held on incorporation of the 1995-2001 amendments to the ZCTU Constitution, on 24-25 November 2005 at the Quality International hotel (record p 271). The updated document was to be sent to the Ministry of Labour. The proposed amendments discussed at the workshop included the phrasing of clause 19;13 of the ZCTU Constitution to read that the WAC shall attend the General Conferences of the Congress as full delegates with voting rights. The 1995 and 2001 Congress resolutions were incorporated. It was resolved to prepare a draft constitution for approval at the 2006 congress (record p 277). The Minutes of the ZCTU 6th silver jubilee Conference of 19-20 May 2006, held at the Celebration Centre in Borrowdale are attached. At p 4 of those minutes, record p 166 of the plaintiff’s bundle of documents, it appears that under ZCTU leadership, Ms. Matibenga-1st vice President, Mr. Mlotshwa-2nd Vice President, Mr. Gwiyo-1st Assistant Secretary General, were in attendance. Mr. Matombo, the second plaintiff was not in attendance on the first day, he subsequently joined the Conference on the second day, after attending his father’s funeral. At p 27 of the minutes, record p 186, under the heading constitutional amendments, it was recorded that the General Council had; ‘adopted and recommended the incorporation of the 1995 and 2001 amendments to the ZCTU Constitution’. At p 33, record p 192, it was recorded that; ‘the General Council report with all the recommendations therein was adopted as proposed by Mr. K Mhazo (ZCHWU), seconded by Mr. D Z Shambare (RAU). Where after the Conference adjourned for lunch. At p 38-39, (record pages 197-198), the motions proposed by the Zimbabwe Construction and Allied Workers Union. At record p 280 is letter dated 28 January 2008, which is addressed to the president of the ZCTU by Messrs Granger & Harvey Legal Practitioners, to which a copy of Supreme Court judgment number 46/07 is attached. The judgment concerns an appeal by the Commercial Workers Union of Zimbabwe and Lucia Matibenga the sixth defendant in these current proceedings, versus three others. Lucia Matibenga had deposed to an affidavit in support of an application for review before the High Court, in her capacity as the authorized representative of the Commercial Workers Union of Zimbabwe. The High Court dismissed the HH 462-15 8572/11 application for review on the basis that Matibenga had no locus standi to depose to the founding affidavit before it. Matibenga appealed, claiming that she had a ‘real and substantial interest’ in the matter. The Supreme Court found that an acting Secretary General of the Commercial Workers Union of Zimbabwe was not duly authorized by that organisation’s Constitution to institute legal proceedings on its behalf. Only the President, the Vice President or an acting Vice President was duly authorized to represent the organization. The General Secretary was an employee of the organization not an executive, and could not represent the organization in legal proceedings. She lacked the requisite locus standi. At record p 286 is the ad hoc committee report to the Special General Council meeting held on 30 July 2011. The report concerned the verification of four unions, tenth, eleventh, twelfth and thirteenth defendants. It was compiled by members of the ad hoc committee (Chiripasi and Majongwe) who conducted site visits at the registered offices of the unions in question on 22 July 2011. At the tenth defendants’ offices the committee was shown a later from the ZCTU Secretary General, the fifth defendant in which their membership was confirmed. They raised a query as to the purpose of investigating verified and duly confirmed membership. At the eleventh defendant the committee encountered the same queries. The eleventh defendant expressed its disquiet at the turn of events in a letter the fifth defendant dated 27 July 2011, which appears at record pages 297-298. In its view, these ‘unending verification trips were unconstitutional, and meant to settle personal scores. The twelfth defendant declined to cooperate with the committee, and the thirteenth defendant’s registered offices were occupied by unknown persons. The conclusion reached by the ad hoc committee was that the fifth defendant sent letters to the unions on the 8th of July 2011, in which he confirmed their membership numbers before the General Council meeting slated for the 9th of July 2011. Minutes of a special General Council meeting held on 30 July 2011 at the Cresta Jameson Hotel by the ZCTU are attached at record page 290. The 2nd plaintiff was chairing the meeting, with the first, second, fourth, fifth and fourth and ninth defendants in attendance. The purpose of the meeting was to discuss logistics of the forthcoming General Conference. The ad hoc committee report was presented by Chiripasi and discussed. At record pages 292-293 it is recorded that, after a long debate on whether or not to accept the report the meeting agreed to vote. The result was that five people voted in favor of discussing the ad hoc committee report, HH 462-15 8572/11 and twenty two voted to stand by the credentials committee verified figures. Three people out of the thirty, who were present, abstained. The number of delegates that each union was allowed to send to the Conference, appears at record pages 295-296. The plaintiff provided a copy of the ZCTU Constitution at record page 299. The salient points of that document are as follows; officers of the Congress are described in clause 2.3 as the President, three Vice-Presidents, the Secretary General, two assistant Secretary Generals, the Treasurer and the Trustees; the main aim and objective of the Congress is to ‘organise, develop and maintain a powerful, effective, democratic, independent and united trade union movement in Zimbabwe; a General Conference of delegates from affiliated trade unions of the Congress shall be convened by the General Council and held every five years at such places and on such dates to be determined by the General Council(clause 9;1); the General Conference shall be the highest organ and authority of the Congress. All other organs and authorities shall be subordinate to it(clause 9;2); the General Conference shall be constituted by delegates of all fully paid up members and of the WAC(clause 9;3)Congress representation(clause9;5); powers and functions of the Congress(clause 10)-review and direct the work of the Congress, formulate, adopt and ratify Congress policies, propose and resolve amendments to the constitution of the Congress (10;(c); elect officers of the Congress (10;(f) officers defined in clause 2.3(a)-(f) above. The General Conference shall elect officers (11.1);duties of the President(clause 12);the vice presidents of the Congress shall perform the duties of the President in order of seniority in his absence and shall be governed by the same provisions as the President (clause 12.2); the quorum of the General Council shall be eighteen (18)(clause16.3) powers and functions of the General Council (clause 16.8)-the powers and duties of the Congress Conferences shall be delegated to the General Council in between meetings of the Conference; it shall have the power to mediate in disputes upon resolution(clause 16.8.(b).(ii); national women’s advisory council(WAC) (clause19);any provision of the Constitution may be repealed, amended or added to in any manner by resolutions of the Conference or extraordinary Conference on three months’ notice (clause 23.1. Delegates who attended the ZCTU 2011 Congress appear at record pages 312-319. The notice of the ZCTU 7th General Congress, to be held on 19-20 August 2011, and invitation for nomination of delegates signed by the fifth defendant, appears at record page 320. HH 462-15 8572/11 The letter requested that names of proposed delegates be forwarded by no later than the 29th of April 2011. The membership verification report to the credentials committee is at record p 321. Minutes of the ZCTU General Council meeting held at the Cresta Jameson Hotel on 16 April 2010 are at record p326. The second plaintiff chaired the meeting. The court application filed by the Progressive Teachers Union of Zimbabwe & 7 ors v ZCTU and 6 ors, case number HC7815/11 is at record p 332-387. The ZCTU Communiqué which was issued after the General Council meeting held at the management training bureau in Msasa on 15 November 2011 is at record p 392. It contains a resolution that Mr. Moyo fourth defendant be authorized to represent the ZCTU in all legal proceedings. Minutes of the ZCTU special credentials committee meeting held on 29 June 2011 in the fifth defendants’ office are at record p 393. The first defendant was chairing. The business of the day was to consider the membership verification report. The committee agreed that where figures from declared membership varied with the verified figures the committee would use the verified figures as authentic membership figures from each union and that letters were to be written to the unions to advise them of this decision. The committee agreed that for the tenth defendant, the figure of 15 000 members be accepted as authentic. For the eleventh defendant, the figure of 3 456, as opposed to the proposed 8 107, be accepted as authentic. For the twelve defendant, the figure of 19 106, as opposed to the proposed 27 180 be accepted as authentic. For the thirteenth defendant the figure of 945, as opposed to the proposed 1200, be accepted as authentic. The minutes of the special general meeting of the ZCTU held on 18 August 2011 at the Rainbow hotel are at record p 409. The meeting was chaired by the sixth defendant in her capacity as the 1st deputy president. There were twenty eight members of the ZCTU present. The purpose of the meeting was to discuss ongoing preparations for the upcoming ZCTU Congress, and the litigation against some members of the ZCTU, by other members of the ZCTU. It was reported that the urgent chamber application to have the Congress postponed for lack of a constitutional mandate had been dismissed by the High Court for lack of urgency. The minutes of the ZCTU Special General council meeting held at the Cresta Jameson hotel on the 9th of July 2011, are at record page 415. The second plaintiff was chairing the meeting, and twenty eight members of the ZCTU were present. The purpose of the meeting was to consider the theme of HH 462-15 8572/11 the Congress and to consider the credentials committee report which was presented by the first defendant. First defendant reported that the committee recommended that the verified figures, as opposed to the proposed figures, be adopted as the correct figures for purpose of the Congress. “the report was adopted as opposed by Mr. Mutakura and seconded by Mr. Kuveya, with the exception of the three unions”… and the 1oth defendant who was not paid up. The council resolved to set up an ad hoc committee to re-verify the unions. These minutes are not signed or confirmed as a true record. (b) Viva Voce Evidence-Plaintiffs’ Case At the first hearing of the matter counsel for the plaintiffs applied for a postponement on the basis that the bundle of discovered documents which had been handed to him on the morning of the trial were voluminous and he needed time to peruse them and take instructions on them from his clients, who, due to their number, also presented counsel with difficulty in consulting them at different places and different times. The application was vigorously opposed by counsel for the defendants who bemoaned that his clients were financially prejudiced by numerous previous court appearances in various matters between the same parties, more particularly the fourth defendant, who had incurred great expense to travel to this country from Europe. The court allowed the application for postponement and ordered each party to bear its own costs. The court itself was similarly constrained by having received the bundle of documents from both parties and not having had time to peruse the documents. The court was of the view that the defendants’ predicament was somewhat self inflicted. No notice had been given that there was a defendant travelling from an international jurisdiction so that he could be accommodated. The defendants’ voluminous bundle of documents was not served in time for even the court to peruse it. At the next court date, an application was made by counsel for the defendants that the fourth, fifth, eighth and ninth plaintiffs be called in court as it was alleged that they were absent from the court and not sitting outside on the witnesses benches. There was a challenge of space in the courtroom, with some of the plaintiffs and defendants standing in the aisles. Counsel for the defendants relied on Order 9 r 62 of the rules of this court to buttress his submissions. O9rr62A provides as follows: HH 462-15 8572/11 “59A. Party in default at trial (1) If on the calling of any case the plaintiff or the plaintiff in reconvention appears in court personally, or by his counsel, and the other party is in default, the court may, subject to rule 60, grant judgment or make such order as it considers the plaintiff or the plaintiff in reconvention, as the case may be, is entitled to upon the summons, declaration or claim in reconvention, as the case may be”. Counsel for the plaintiffs apologized to the court for the four plaintiffs’ absence after a protracted roll call, and explained that he had communicated with all the plaintiffs but due to their number he had not been prudent enough to count their heads that morning. The court’s ruling was that it was loath to grant absolution from the instance to the defendants in respect of the four plaintiffs at this stage because of the multiplicity of litigation between the parties and the possibility of further litigation if the court followed O9rr59A to the letter. The court then exercised its discretion and invoked rule 4C in the interest of justice, where after it suspended the operation of r 59A until 11 am sharp to give those plaintiffs that were not in attendance time to make their way to court. Thereafter Mr. Lovemore Matombo, the second plaintiff, took the witness stand and the oath was administered. The second plaintiff (Matombo) told the court that he was giving evidence on his own behalf and on behalf of the ZCTU as well, in his capacity as its president and based on the mandate conferred on him by its Constitution. He described himself as the ZCTU president from 2001 to date. He said that certain members of the ZCTU had approached him and requested that he correct the defective procedure which had been adopted when the ZCTU Congress was held in 2011. Matombo is currently not in occupation of the ZCTU offices or in control of any of its property because a decision was taken to resolve the dispute through the courts. This decision was taken after an urgent application to reclaim possession of the ZCTU assets from the defendants, and to stop the holding of the 2011 Congress was held to not meet the requirements of urgency by the High Court. The disagreement between the plaintiffs and the defendants has its origin in the membership verification exercise. The plaintiffs took issue with the lack of compliance by the defendants with the procedure set out in the ZCTU Constitution for the verification of the numbers of the union members. The ZCTU Constitution was registered in 1995 and amended in 2001. The amendments were adopted at the 2006 ZCTU Congress. The amendments appear in the presentation made to the 2006 Congress. HH 462-15 8572/11 The witness identified all the documents which form part of the plaintiff’s bundle and adopted them as part of his evidence in chief. Counsel for the defendants objected to the reference to the red and green Constitution as part of the plaintiffs’ documents, on the basis that the plaintiffs had not included it as part of the documents that they formally discovered for purposes of trial. Counsel for the defendants referred the court to Order 24 r 163 of the rules of this court, which provides that: “163. Effect of non-disclosure of document A document not disclosed as aforesaid may not, save with the leave of the court granted on such terms as to it may seem just, be used for any purpose at the trial by the party who was obliged but failed to disclose it, but any other party may use such document”. After hearing submissions from both counsel the court ruled that the plaintiffs could not rely on the red and green Constitution to prove their case because a perusal of their discovery affidavit and schedule of documents showed that it did not form part of the documents that they formally discovered for trial in terms of Order 24 of the rules of this court. The plaintiffs were obliged but they failed to produce the red and green Constitution, opting instead to produce only a copy of the white Constitution. Plaintiffs did not formally apply for leave to produce the omitted red and green Constitution during evidence in chief as provided for by Order 24 r 62. The court could not exercise its discretion in favor of the plaintiffs and grant leave to produce the red and green Constitution, when such leave had not been sought. Matombo’s evidence in chief ended there. During cross examination, Matombo told the court that he is currently employed as the president of the Communication and Allied Services Union. He admitted that he had been elected as the president of the ZCTU in 2006 and that each presidential term is for a five year period. His term was due to expire in May 2011. The ZCTU Congress was held after that date. Matombo denied that as at May 2011 he was no longer entitled to refer to himself as the ZCTU president because his term had expired. He admitted that the ZCTU Congress which he and others had purported to hold in December 2011, and which had returned him as president, was nullified by the High Court under case number HC11473/11. Matombo admitted that they had appealed to the Supreme Court against the decision of the High Court which had nullified their December Congress, but had subsequently withdrawn the appeal. He admitted that the High HH 462-15 8572/11 Court order which remains extant, had expressly barred him from holding himself out to be the ZCTU president, from using the ZCTU name, and interdicted him from using the ZCTU property. Matombo admitted that the fourth plaintiff had failed to stop the August 2011 ZCTU Congress when its urgent application under case number HC 7815/11 was dismissed on the 12th of August 2011. He said that he was aware that the ZCTU Constitution had been amended at the General Conference of 1-20 May 2006. Matombo confirmed that he was present when the General Council made its report on 19 May 2006, and confirmed further, that the report was circulated and adopted by the General Conference. Matombo said that he was aware that the report contained certain recommended constitutional amendments, to the 1995 and 2001 ZCTU constitutions. He emphatically denied that those constitutional amendments which were adopted in 2006 were the same amendments which were captured in the red and green constitution. Matombo admitted that the decisions of the General Council were binding on the ZCTU and that they have the same force and effect as if they were decisions of the General Council. He did not dispute that it was the General Conference which set the date for the WAC Conference as 23 July 2011, the dates of the regional conferences as May 2011, and the date of the ZCTU Congress as 19-20 August 2011. Matombo demonstrated an impressive in depth knowledge of the origins of the ZCTU, its Constitutions, both accepted and disputed, and its internal workings, committees and qualifications of its office bearers. The court found him to be remarkably articulate in his narration of the sequence of events, and his understanding of the protracted litigation between the parties. Yet when it came to his responses during cross examination on the aspect of the constitutional amendments and which constitution was the legitimate ZCTU Constitution, the court found Matombo unusually reticent. He became less articulate. He was argumentative and failed to answer questions as they were put to him. He was repeatedly admonished by the court to answer questions put to him directly. He appeared shaken, and his voice became hoarse and his responses belligerent. He was nervous, and began to perspire heavily. When the questioning became more robust he pleaded illness and asked the court for permission to sit down, which was granted. The court did not find him a believable witness on the aspect of which ZCTU Constitution was legitimate. He appeared to develop selective amnesia. For a man who had HH 462-15 8572/11 demonstrated in depth knowledge of the ZCTU Constitution during evidence in chief, to now appear confused as to the question of whether the ZCTU Constitution was amended and if so to what extent, was disingenuous, to put it mildly. It was a blatant and dishonorable attempt to evade the truth. The court was not impressed. It found him an incredible witness on that aspect, and on the aspect of the minutes of the General Council meetings which were held to make resolutions on the membership verification exercise. The witness became as slippery as an eel in his evasive answers when questioned further. Matombo’s explanation that the minutes were ‘doctored’ were not believed by the court. No evidence was led to show who allegedly ‘doctored’ the minutes, and to what extent. The plaintiffs’ second witness was Elijah Chiripasi, a member of the ninth plaintiff, the National Air workers union. He told the court that he is employed by Air Zimbabwe as a technical officer, and that he has been a member of the ZCTU General Council from 2003 to date. He said that there are three disputes in regards to the ZCTU Constitution, which Constitution is genuine, the power of the General council, a leadership crisis about who should have been elected and how. The disputes arose in 2011 at a General Council meeting held on 30 July 2011. None of the people that meeting was well versed with the ZCTU Constitution. A returning officer was chosen, and nominations for candidates were considered. It was agreed to vote using the red and green Constitution. It was announced that the presidential term was now limited to two terms only. Matombo disputed that this clause was legitimately part of the ZCTU Constitution. He also disputed that the WAC delegates were entitled to vote. The witness told the court that although it was agreed that the red and green Constitution be used, it was his first time to hear that such a constitution existed, and his first time to hear that the original ZCTU Constitution had been amended. He said that he understood that any such amendments would have to be approved by the Ministry of Labour. The witness told the court that he was a member of the ad hoc committee which was set up to assist the credentials committee with the union membership verification exercise. They were told to check whether each union had a checklist system, a register of its members, receipts for membership subscriptions, and bank records. The committee encountered resistance from the unions because of a letter sent to them by the fifth defendant that their membership had been verified. The committee reported their findings to the General Council meeting. A motion was HH 462-15 8572/11 moved to suspend the report. The motion was carried. The members voted to adopt the recommendations of the Credentials Committee. During cross examination the witness told the court that he was present at the ZCTU 2006 General Conference. He denied that his term of office expired in 2011, and insisted that he was still a member of the ZCTU General Council. The plaintiffs’ second witness was largely ignorant of the ZCTU Constitutional provisions. His knowledge of the legal requirements was rudimentary. He appeared to labour under various misapprehensions, which were largely based on what he had been told, and not his own knowledge of events. He was hostile during cross examination and had to constantly be admonished by the court to stop wasting time and simply answer the questions that were being put to him. He had a penchant for answering questions which were in his own mind, which had not been put to him, and resisted the guidance of the court, despite an explanation on the purpose of cross examination. This witness appeared unsure and lacked the same oratory skills as the plaintiffs’ first witness. In fact it would not be remiss to observe that he appeared ignorant, and the court formed the impression that he had been coached on what to say. The plaintiffs then closed their case. The defendants indicated that it was their intention to apply for absolution from the instance. The court indicated that due to the voluminous nature of the papers filed of record it would be prudent for the parties to file written submissions on this aspect. THE LAW Order 49 rule 437 sub-rule (1) of the High Court Rules 1971 provides that: “437. The burden of proof and the right or duty to begin (1) If on the pleadings the burden of proof is on the plaintiff, he shall first adduce his evidence, and if absolution from the instance is not then decreed, the defendant shall then adduce his evidence”. An application for absolution from the instance may be made at the close of the plaintiff’s case, before the defendant is put to its defence, and such an application may be granted where the court finds that the plaintiff’s evidence is insufficient for a finding to be made against the defendant. See Herbstein & Van Winsen, The Civil Practise of the Supreme Court of South Africa.1 For a defendant to be absolved from the instance, it must show that, after the plaintiff has led all his evidence, its burden of proof has not been discharged. The evidence led by the 1 4th ed, page 841 HH 462-15 8572/11 plaintiff will be insufficient to prove a prima facie case against the defendant. There will not be enough evidence to establish the plaintiff’s claim, and there will consequently be nothing for the defendant to rebut, or answer. See Mangwiro Sibanda v Jane Happiah Chikumba2, Effrolou (Pvt) Ltd v Mrs Muzungani3, Manyange v Mpofu & Ors4. It is trite that in civil proceedings a party who makes a positive allegation bears the burden of proving such an allegation. See Astra Limited v Chamburuka5, and Book v Davidson 6. The leading case on the question of absolution from the instance is Supreme Service Station (1969) Private Limited v Goodridge Private Limited7. It was held in that case that when an application for absolution from the instance is made at the end of the plaintiff's case the test is: what might a reasonable court do, i.e. is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff; if the application is made after the defendant has closed his case the test is: what ought a reasonable court do.(the emphasis is mine). The difference in the two tests in my view is in the differing levels of proof required in order to discharge the onus on any party who will have made any allegation, be it in the plaintiff’s claim, or in the defence proffered by the defendant. At the close of the plaintiff’s case, the burden of proof on the plaintiff is to make a prima facie case (on the face of it). The standard of proof is lower (what might the court do- the court may or may not). At the close of the defendant’s case, in my view the standard of proof is higher. Having heard plaintiff and defendant’s evidence, the court must decide what the balance of probabilities favors, it must decide what it ought to do, not what it may or may not do. In deciding what a court may or may not do, there is an implication that the court may make an incorrect decision, because at the close of the plaintiff’s case, it will not have heard all the evidence. However, after the defence case is closed, there is no room for error which may be occasioned by the paucity of evidence placed 2 HH 92-14 3 HH122-2013 4 HH162-11 5 SC27/12 6 1988 (1) ZLR 365 (S) 384 B-F 7 1971 (1) RLR 1 @ 5F-G HH 462-15 8572/11 before the court. The court therefore “ought’ to make the correct decision, based on the probabilities raised by the evidence before it. See also Peter Lewis Bailey NO v Trinity Engineering (Private) Limited, Aguy Clement Georgias & Harry. P. Pilley8, and Dube v Dube9, Munhuwa v Mhukahuru Bus Services10 The issue for determination is therefore whether the plaintiffs adduced sufficient evidence to establish a prima facie case against the defendants. The court must ask itself whether the evidence placed before it is sufficient to prove the plaintiffs claims as against the defendants, on the face of it? What might a reasonable court do, i.e. is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiffs? See Fox v Goodridge Supra. Let us remind ourselves what the plaintiffs claims are; an interdict, a declatur, and costs. The parties also agreed that the question of locus standi, authority to bring these proceedings on behalf of the 1st plaintiff, be referred to trial. Therefore the court must also determine whether the 2nd plaintiff Matombo adduced prima facie evidence that he is duly authorized to represent the 1st plaintiff, and to bring these proceedings on his own behalf and on behalf of all the other plaintiffs which did not adduce viva voce evidence in their own right? (a) Locus standi On the question of locus standi, it was submitted on behalf of the plaintiffs that Matombo in his evidence in chief did not say that he was giving evidence on behalf of all the plaintiffs in their entirety. He merely said that he was representing the first plaintiff in his capacity as its president. It was contended further, that, with the exception of the ninth plaintiff, none of the other plaintiffs, through their representatives who were present in court and accounted for after a protracted roll-call, took to the witness stand to confirm that they had given Matombo the authority to testify on their behalf. None of the other plaintiffs confirmed that they stood by the testimony given by Matombo and or associated themselves fully with it. It would appear that, with the exception of the first, second, and ninth plaintiffs, the rest of the plaintiffs cases were 8 HH 181-02(an application for absolution from the instance which quoted Supreme v Fox & Goodridge with approval) 99 HB-39-08 10 1994 (2) ZLR 382(H) HH 462-15 8572/11 opened and closed by the plaintiff’s counsel without them adducing any other evidence on their own behalf than what is available in the pleadings and discovered documents. One of the leading cases which set out the law that governs the legal principle known as locus standi, is the case of Zimbabwe Teachers Association & Ors v Minister of Education11, where the law is stated at 57B, as follows: “It is well settled that, in order to justify its participation in a suit such as the present, a party such as second applicant has to show that it has a direct and substantial interest in the subject-matter and outcome of the application. In regard to the concept of such a "direct and substantial interest", CORBETT J in United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) quoted with approval the view expressed in Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151(O) that it connoted - ‘. . . an interest in the right which is the subject-matter of the litigation and . . . not thereby a financial interest which is only an indirect interest in such litigation.' and then went on to say: 'This view of what constitutes a direct and substantial interest has been referred to and adopted in a number of subsequent decisions, including two in this Division . . . and it is generally accepted that what is required is a legal interest in the subject-matter of the action which could be prejudicially affected by the judgment of the Court . This requirement of a legal interest as opposed to a financial or commercial interest also received judicial endorsement in Anderson v Gordik Organisation 1962 (2) SA 68 (D) at 72B-E." It was contended on behalf of the defendants that the plaintiffs do not have an interest in the right which is the subject matter of the litigation, that they have no direct and substantial interest in the subject matter and the outcome of these proceedings. The defendants referred to clauses 12.3.1, 12.3.2 and 12.1.4 of the ZCTU white Constitution which confers the power to represent the ZCTU in legal proceedings, on the Secretary General and on the President. It was submitted further, that, in terms of clause 9.3 of the said Constitution, a General Conference of the ZCTU shall be held once every five years. The second plaintiff Matombo confirmed that he was elected president of the ZCTU in May 2006. It is common cause that a General Conference was held in August 2011 and that new office bearers were duly elected, and that Matombo was not returned as president of the ZCTU, even though he had been nominated for election to that post. Defendants contend that the second plaintiffs’ terms of office expired in 2011, more particularly since they purported to hold their own ZCTU General Conference in December 2011, whose outcome was nullified and declared null and void by the High Court under case number HC11473/11. In that case the court gave an order interdicting Matombo from holding 11 1990 (2) ZLR 48 HH 462-15 8572/11 himself out as the ZCTU president. That judgment is extant and binding on Matombo. He is precluded by dint of that court order from doing anything that involves holding himself out as the ZCTU President. No other documentary evidence was produced to prove that the second plaintiff is the first plaintiffs’ president. The court found there contentions persuasive. The plaintiffs second witness Elijah Chiripasi did not state on whose behalf he was testifying when he gave his evidence in chief. He did not tell the court who gave him the mandate to appear, or who he was representing. He did not tell the court that he was testifying on behalf of the ninth plaintiff. This witness was also barred from holding himself out to be a ZCTU official under case number HC11473/11. His term of office as a member of the ZCTU General Council expired in 2011. It is my considered view that neither the second nor the ninth plaintiff established a direct or substantial interest in the subject of the first plaintiff, of whom they are clearly no longer office bearers. They were barred from representing the first plaintiff. They could not purport to do so while the order that barred them was still extant. They ought to have set that order aside by way of appeal. The evidence given by these two plaintiffs in their evidence in chief was insufficient and inadequate to establish their locus standi to represent the ZCTU. It is this court’s view that, these plaintiffs’ direct and substantial interest in the outcome of these proceedings, if any, does not concern an existing, future, or contingent right in the ZCTU. They lost their existing rights by the effluxion of time when their 5 year terms expired in 2011, and when they failed to be re-elected despite forwarding nominations, and when they were interdicted by a competent court from representing the first plaintiff, the ZCTU. Having made this finding, the matter ought to rest here. However, in case a different court may come to a different conclusion on this issue, I will proceed to address the merits of the matter, below. (b) Interdict In order to obtain a final mandatory interdict (a mandamus), the applicant must show the following requirements; i. A clear or definitive right-this is a matter of substantive law. ii. An injury actually committed or reasonably apprehended-an infringement of the right established and resultant prejudice. iii. The absence of similar protection by any other ordinary remedy-the alternative remedy must be; adequate in the circumstances; be ordinary and reasonable; be a legal HH 462-15 8572/11 remedy; grant similar protection. See Tribac (Pvt) Ltd v Tobbacco Marketing Board12, Setlogelo v Setlogelo13,Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor14, Boadi v Boadi & Anor 15, Diepsloot Residents’ and landowners’ Association & Anor v Administrator Transvaal 16 The evidence led by the two plaintiffs, coupled with the documentary evidence which was filed of record, does not, in my view, establish or demonstrate what clear or definitive right the plaintiffs have, which would entitle them to an interdict, as against the defendants. Second and Ninth plaintiffs were members of the ZCTU General Council. They admitted that their terms of office expired in May 2011. They admitted that they submitted nomination papers for re-election in August 2011, and that they lost to some of the defendants at the ZCTU General Conference. They admitted that they purported to hold their own ZCTU General Conference in December 2011, but it was subsequently nullified by this court. They admitted that they are currently barred and interdicted by an order of this court, from purporting to represent the ZCTU. The court failed to see what possible definitive and or substantive right these plaintiffs could possibly have in the ZCTU which would form the basis of an interdict. If the plaintiffs have no definitive right it follows that there can be no possibility of infringement of a non existant right, no possibility of prejudice by the infringement of such a right. There can be no absence of similar protection by any other alternative remedy. The basic requirement of an interdict is absent. A clear right. The evidence placed before the court, when regard is had to the provisions of both ZCTU Constitutions, is insufficient to establish, on the face of it, what possible rights the plaintiffs have, which would merit the granting of an interdict. The defendants cannot be said to be masquerading as executive members of the ZCTU. They held a ZCTU Conference in August 2011 at which they were duly elected to be members of the ZCTU. They cannot be barred from using ZCTU property or using its offices or from operating 12 1996 (2) ZLR 52 (SC) @56 13 1914 AD 221 @ 227 14 1980 ZLR 378 15 1992 (2) ZLR 22 16 1994 (3) SA 336 (A) @ 344H HH 462-15 8572/11 its bank accounts, in the absence of evidence that the plaintiffs have a right which entitles them to such relief against the defendants. The plaintiffs are themselves barred from holding themselves out to be executive members of the ZCTU. My reading of the ZCTU Constitution, does not show that it allows past ZCTU Presidents, and or past ZCTU members of the General Council, to purport to bring legal proceedings on its behalf, in which they seek to enforce their past rights in the ZCTU. (c) Declaratur The approach of the court to a claim for declaratory relief was summarized in the case of Johnsen v Agricultural Finance Corporation17 where the court said that: “The condition precedent of the grant of a declaratory order under s14 of the High court of Zimbabwe Act 1981 is that the applicant must be an ‘interested person’, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction. See Ex p Chief Immigration Officer 1993 (1) ZLR 122 (S) @ 129F-g, Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S)” The grant of declaratory relief is discretionary, and will not be used to usurp the function of another court or another procedure. See Khupe v Officer in Charge, Law & Order Section, ZRP Bulawayo Central & Ors18. The courts will use the power to issue a declaratur sparingly, and with utmost caution. See Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd19. It is a power that will only be exercised when there is a good reason for doing so. See Vine v National Docl Labour Board 20. It should be used in suitable circumstances. See Ex p Chief Immigration Officer.21 It is the view of this court that again the evidence which was placed before it is insufficient and inadequate to establish a direct and substantial interest pertaining to an existing, future or contingent right in the ZCTU, on the part of the plaintiffs. There is no good reason that the court 17 1995 (1) ZLR 65 (SC) @72 18 2005 (2) ZLR 394 SC @ 397 19 1921 2 AC 438 HL @ 445 20 1957 AC 488 (HL) @500 21 1993 (1) ZLR 122 (SC) @ 130F; 1994 (1) SA 370 (ZS) @ 377E. HH 462-15 8572/11 finds persuasive to accede to the relief sought by the plaintiffs. The August 2011 ZCTU Conference returned some of the defendants as executive officers. Plaintiffs lost. The next ZCTU General Conference is due to be held this year. Are these suitable circumstances for the issue of the declaratur sought by the plaintiffs? Should the court exercise its discretion to usurp the function of the ZCTU General Conference? The answer lies in the determination of whether or not the plaintiffs were shortchanged when the ZCTU General Conference was held in August 2011. Does the evidence before the court support the assertion that the ZCTU Constitution was violated when the General Conference was held in August 2011? It was submitted on behalf of the defendants that the General Conference of 19-20 August 2011 was to be attended by 225 delegates from thirty three ZCTU affiliates. Of these unions, the nine plaintiffs as well as four of the defendants were due to attend. The rest of the affiliate unions which attended the conference have not been cited nor have they been served with process yet they stand to be prejudiced if the outcome of that General Conference were to be nullified by the court. It was submitted further, that it is not only the first, second, third,eighth and ninth defendants who are office bearers of the ZCTU who will be affected by the outcome of these proceedings. Sixth and seventh defendants have in the interim been replaced by other people who will be affected by the outcome. Other members of the ZCTU were elected into office in 2011, such as Trustees, General Council, National Executive Committee, and WAC. None of these persons or bodies were cited as parties to these proceedings, or served with process. The fifth defendant has since left that post and someone else was elected to it. Absolution from the instance It was submitted on behalf of the defendants that Mr. Lovemore Matombo did not specify during his evidence in chief that he was mandated by all thirty three unions to take action on behalf of the ZCTU. Matombo admitted that the white Constitution was amended in 2006. He admitted that a dispute ensued on 30 July 2011 over which constitution to use. The dispute related to the limitation of the term of the ZCTU president to ten years, and to the mandate of the Credentials Committee. Matombo admitted that any problems encountered by the Credentials Committee would be referred to the General Council. On 30 July 2011, after the verification exercise was done by the ad hoc committee, the question was put to the vote and the General Council voted to stand by the report of the Credentials Committee, and to disregard the report by HH 462-15 8572/11 the ad hoc committee. Matombo admitted that the fifth defendant wrote to him and advised him that only the General Council had the constitutional mandate of stopping the WAC conference or deferring it, not the office of the president of the ZCTU. Matombo admitted that he did not attend the General Conference in August 2011. He admitted that he did not know who attended. He admitted under cross examination that his term as ZCTU president had expired before August 2011 when the General Conference was held. He admitted that he was barred by a court order from holding himself out as the ZU president. The plaintiffs’ second witness Mr. Elijah Chiripasi did not know anything about the red and green constitution, or the white constitution. He claimed to have attended all the General Council meetings, and confirmed that all the disputes raised were resolved by voting at the last General Council meeting of 30 July 2011. He confirmed that it was agreed at the General Council meeting to use the red and green constitution at the General Conference in August 2011. Clearly the General Conference was held properly in terms of the provisions of the red and green Constitution as agreed on 30 July 2011. It is my view that the registration of the red and green Constitution with the Ministry of Labour was irrelevant once the General Council had voted on the issue and agreed to adopt it and to be guided by it at the August 2011 Conference. It is my view that there is no evidence that the ZCTU Constitution was violated or contravened in any way when the General Conference was held in August 2011. In accordance with its constitutional mandate in the discharge of its duties, the General Council voted to use the red and green passport at the General Conference. Matombo actually chaired the meeting of 30 July 2011 and counted the votes in favor of such a resolution. The General Council agreed to stand by the Credential Committee report. The General Council agreed that the WAC delegates had a right to attend the General Conference and to vote. There is no evidence, from the pleadings, to the documentary evidence, to the testimony of the two witnesses on the basis of which a reasonable court might find in favor of the plaintiffs. The only plaintiffs which are properly before the court are the second and ninth plaintiffs. ZCTU is not properly represented by Matombo. None of the other plaintiffs gave evidence in support of their claims against the defendants. The plaintiffs even failed to discover the red and green constitution, which was vital to their claim that the white constitution had been violated, and disregarded unlawfully. It is this HH 462-15 8572/11 court’s view that none of the plaintiffs discharged the onus on them to establish a case against the defendants, on the face of it, i.e. prima facie. (d) Costs It was submitted on behalf of the defendants that the plaintiffs’ case is an abuse of process, which was fuelled more by the plaintiffs’ ego than by substance. To buttress this allegation, the defendants alluded to the fact that only two out of the ten plaintiffs fielded witnesses who were ready and able to testify in court. Even the ninth plaintiff’s representative did not seem to know a lot about what was at stake, or have the requisite knowledge or evidence necessary to establish the plaintiffs’ claim. Plaintiffs were allegedly motivated by sour grapes after their own General Conference held in December 2011. was declared to be a nullity by the court, and after they were barred from the ZCTU premises, stripped of their ZCTU assets, and interdicted from holding themselves out to be the ‘real ZCTU’. The plaintiffs tried and failed to stop the General Conference of August 2011. The multiplicity of action caused by the plaintiffs’ intransigence could have been avoided. The legal issues were clear. The plaintiffs were motivated by malice. It is trite that costs are always at the discretion of the court. It is this court’s view that the plaintiffs’ conduct did indeed leave a lot to be desired. A lot of court hours have been frittered away, and judicial time wasted, in determining the plethora of cases that have clogged our calendar since 2011 to date. Numerous urgent applications and counter applications were filed. Legal practitioners were hired and fired willy-nilly. All because some of the plaintiffs’ failed to secure the positions that they had been nominated for at the August 2011 ZCTU General Conference. Such conduct is deplorable. Sadly it has entrenched itself in the fabric of our society. There are no gracious losers. The spirit of sportsmanship, of gentlemanly, conduct is apparently dead. Perhaps orders of costs on a higher scale might deter other like minded individuals from wasting the court’s time for protracted periods of time. For these reasons, the plaintiffs are ordered to pay costs on a legal practitioner client scale. (e) Disposition According to both ZCTU Constitutions, the General Conference is mandated to elect officers (clause 11.1). Those defendants who are executive members of the ZCTU were duly elected to those positions at the August 2011 ZCTU General Conference. Some of the plaintiffs HH 462-15 8572/11 had submitted nomination papers for re-election. Sadly, they lost. The duties of the President of the ZCTU are clearly set out in (clause 12) of the ZCTU Constitution. While those duties include ensuring that the provisions of the ZCTU Constitution are not violated, in my view such a mandate does not extend to bringing legal proceedings on behalf of the ZCTU, to uphold its Constitution. Such a mandate is vested in the ZCTU General Council, which may mandate the ZCTU Secretary General to represent it. This was not done. No evidence was placed before the court to show that the second plaintiff was duly authorized by the ZCTU General Council to bring these proceedings on its behalf. It may sound lofty to talk about some unions which approached the second plaintiff and ‘asked him to uphold the ZCTU Constitution’. In reality such lofty and noble ideals must be buttressed by adherence to the terms of the very Constitution that is sought to be upheld. Both ZCTU Constitutions provide that the vice presidents of the Congress shall perform the duties of the President in order of seniority in his absence and shall be governed by the same provisions as the President (clause 12.2); the quorum of the General Council shall be eighteen (18)(clause16.3) powers and functions of the General Council (clause 16.8)-the powers and duties of the Congress Conferences shall be delegated to the General Council in between meetings of the Conference. In light of these constitutional provisions was it wrong for the 6th defendant to chair the August 2011 Conference if she was the next senior vice- president and if the General Council had approved such a course of action? By show of hands the General Council voted on 30 July 2011 to use the red and green Constitution at the August 2011 General Conference. If more than eighteen representatives were present, which is the constitutionally mandated quorum of the General Council, on what basis would such a resolution be unconstitutional? Finally, if it is accepted that the General Council exercises the powers and functions of the General Conference in between Conferences, on what basis can it then be said that the adoption of the credentials committee report was unconstitutional? The Minutes of the ZCTU special credentials committee meeting held on 29 June 2011 in the fifth defendants’ office are at record p 393. The first defendant was chairing. The business of the day was to consider the membership verification report. The committee agreed that where figures from declared membership varied with the verified figures the committee would use the verified figures as authentic membership figures from each union and that letters were to be HH 462-15 8572/11 written to the unions to advise them of this decision. The minutes of the ZCTU Special General Council meeting held at the Cresta Jameson hotel on the 9th of July 2011, are at record p 415. The second plaintiff was chairing the meeting, and twenty eight members of the ZCTU were present. They constituted a quorum. The purpose of the meeting was to consider the theme of the Congress and to consider the credentials committee report which was presented by the first defendant. The first defendant reported that the committee recommended that the verified figures, as opposed to the proposed figures, be adopted as the correct figures for purpose of the Congress. “the report was adopted as opposed by Mr. Mutakura and seconded by Mr. Kuveya, with the exception of the three unions…’ It is my view that, once that report had been proposed for adoption, the proposal seconded, and the report accepted, there was no longer any dispute to speak of or any further verification required. The minutes of the special general meeting of the ZCTU held on 18 August 2011 at the Rainbow hotel are at record p 409. The meeting was chaired by the sixth defendant in her capacity as the 1st deputy president. There were twenty eight members of the ZCTU present. The purpose of the meeting was to discuss ongoing preparations for the upcoming ZCTU Congress. The sixth defendant was mandated to chair the upcoming General Conference. It was in accordance with the provisions of the ZCTU Constitution. There was a quorum of the General Council present. The second plaintiff Matombo confirmed that he was present when the General Council made its report on 19 May 2006, and confirmed further, that the report was circulated and adopted by the General Conference. Matombo said that he was aware that the report contained certain recommended constitutional amendments, to the 1995 and 2001 ZCTU constitutions. He emphatically denied that those constitutional amendments which were adopted in 2006 were the same amendments which were captured in the red and green constitution. The court found him an incredible witness on that aspect. Matombo admitted that the decisions of the General Council were binding on the ZCTU and that they have the same force and effect as if they were decisions of the General Council. Matondo admitted that the majority of the union representatives present agreed to use the red and green Constitution, but said that it was not unanimous. The constitution required a quorum which was present. In my view there is nothing in the ZCTU Constitution which HH 462-15 8572/11 stipulates that the decisions of the General Council must be unanimous. During cross examination, Matombo agreed that the General Council is given a mandate by a show of hands of the majority of its members present. He admitted that the decisions of the General Council are binding. Finally, Matombo admitted that the majority of union members present voted to accept the recommendations of the Credentials Committee regarding verified union membership. He admitted that the majority of members voted to disregard the recommendations of the ad hoc committee, which had not been given a mandate, by the General Council. Matombo admitted that he subsequently chaired all the meetings convened to discuss the impending Conference, that he presided over nominations for executive and other posts, and that he himself was nominated to be returned as president. He admitted that in the absence of the President, the Vice president may chair a General Council meeting. Finally, he said that, in the absence of the President, even the ZCTU Conference may be chaired by the Vice president. In light of these admissions. Even if it were to use a magnifying glass-this count would be hard pressed to find a contravention of the ZCTU Constitution in the run up to, during or after the August 2011 General Conference. The plaintiffs are not entitled to the relief that they seek for the reasons stated above. They are ordered to pay the costs of suit on a legal practitioner client scale. Messrs Mbidzo, Muchadehama & Makoni, plaintiffs’ legal practitioners Messrs Donsa-Nkomo, & Mutangi Legal Practice, defendants’ legal practitioners