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Judgment No. 8/08
Civil Appeal No.120/07
NATIONAL EMPLOYMENT COUNCIL FOR THE
CATERING INDUSTRY v CATERING & HOSPITALITY INDUSTRY
WORKERS’ UNION OF ZIMBABWE
SUPREME COURT OF ZIMBABWE
CHEDA JA, ZIYAMBI JA & MALABA
JA
HARARE, FEBRUARY 12 & MAY 13, 2008
E T Matinenga SC
, for the appellant
M Kamudefewere , for the respondent
ZIYAMBI JA: The appellant, to whom I shall refer as “NEC”, is a
voluntary employment council formed in terms of s 56
of the Labour Act
[Cap 28:01] (“the Act”) which provides as
follows:
“56 Voluntary employment councils
Any
–
employer, registered employers organization or federation of such organizations; and
registered trade union or federation of such trade unions;
may, at any time, form an employment council by signing a constitution agreed to by them for the governance of the council, and by applying for its registration in terms of section fifty-nine”
Clause 5:3 of the appellant’s constitution makes
provision, as indeed it is enjoined to do by s
58[1] of the Act, for the admission of
new parties to the employment council. It reads:
“Any employer in the industry and any Employer’s Organisation or Trade Union registered in terms of s 36 of the Act, in respect of persons engaged or employed in the industry may be admitted to membership of the Council.”
Following its registration as a trade union on 29
December 2000, the respondent sought to be admitted to membership of the
appellant. The application having been refused, the respondent
sought assistance
from the Registrar of Labour. The latter found that:
“..the NEC does not have valid reasons for not accepting CHIWUZ (the respondent) therefore should consider
accommodating them” and concluded:
“Having taken cognizance of all issue(s) raised as well as
examining CHIWUZ’s register of 4590 members, it was decided
to give the
applicants 2 seats in the council on the Labour side. It is up to the union to
decide who is to represent them in the
council. It was also decided that the
NEC’s constitution should be amended to include CHIWUZ.”
Aggrieved by the Registrar’s decision, the appellant appealed, without
success, to the Labour Court which also refused an application
for leave to
appeal to the Supreme Court. The matter comes before us on appeal with leave of
a Judge of the Supreme Court in terms
of s
92F[2] of the Act.
The main
contention advanced on behalf of the appellant by Mr Matinenga is that by
virtue of its being a voluntary employment council, admission to its membership
is not as of right but dependent on the
discretion of the council. The use of
the words “may be admitted” in clause 5:3 of the constitution, he
said, clearly
showed that admission was not as of right. Since the issue of
membership was within the discretion of the council, a Court can only
interfere
with the exercise of that discretion if it was exercised irrationally. The
second contention was that s 21 of the Constitution
of Zimbabwe guarantees the
right of the appellant to freedom of association and there was nothing in the
Act which entitles the respondent
to membership of the appellant as of right or
obliges the appellant to admit the respondent to its membership.
The
respondent’s stance was that the constitution of the appellant does not
preclude membership of the respondent and that the
word “may” was to
be construed as being mandatory in this case since it was mandatory in terms
of s 58 of the
Act that any constitution of an employment council
should contain provisions for admission to that council. It was submitted that
it was irrelevant that the appellant was a voluntary employment council since
the appellant’s constitution could not be superior
to the Labour
Act.
The Act provides for two types of employment councils, namely,
voluntary and statutory. Voluntary employment councils differ from
their
statutory counterpart in the manner of formation. With regard to the former, the
parties, that is, any employer or employers’
organization and any
registered trade union or federation of trade unions may come together by choice
to form a council whereas in
respect of the latter, the parties to the council
are chosen by the Minister in the manner prescribed in s 57 of the Act. Section
57 of the Act provides as follows:
“57 Statutory employment councils
(1) The Minister may, whenever the national interest so demands, request -
(a) any registered employers organization or federation of such organizations; and
(b) any registered trade union or federation of such trade unions;
to form an employment council and to apply for its registration in terms of section fifty-nine.
(2) If within three months of a direction being given in terms of subsection (1), the parties concerned have failed to apply for the registration of an employment council, the Minister may appoint such number of persons as he considers will represent the employers and employees concerned, and such persons shall, within such period as may be specified by the Minister, form an employment council by signing a constitution agreed to by them for the governance of the council and by obtaining registration of the council in terms of section fifty-nine.”
The Act sets out in
s 58 the provisions which must be included in the constitution of every
employment council. There is no statutory
duty imposed on voluntary councils to
admit new members the only requirement being that provision must be made in the
constitution
for the admission of new
members[3]. Section 58 provides:
“The constitution of every council formed in terms of this part shall provide for -
(a)...
(g) the admission of new parties to the employment council;...”
The constitution of the appellant, in keeping with this
requirement, provides that a certain category of persons may be admitted
to its
membership. The appellant’s position is that persons or bodies falling
within this category may apply, not necessarily
successfully, for admission to
membership. The success of the application depends on the discretion of the
Council. The respondent
however contends, and his contention was accepted by
the court a quo, that the word ‘any’ in the appellant’s
constitution is indicative of the fact that once an applicant falls within
the
category mentioned in clause 5(3), admission to membership by the appellant is
compulsory. The use of the word ‘may’,
so it was submitted, is not
intended to be discretionary but mandatory and must be construed to mean
‘shall’. He submits
further that by requiring the employment council
to make provision in its constitution for admission of new members to membership
of its council, the legislature was making it mandatory for the appellant to
admit whosoever applied subject only to their possession
of the qualifications
set out in clause 5(3) of its constitution.
At common law, the position
relating to voluntary associations is as follows:
“Normally, an association has an absolute discretion as to whether or not it admits a person to membership.......It follows that in the matter of admission to membership no question of mala fides or non – compliance with principles of natural justice can arise.”[4]
The legislature is presumed to be aware of the common law and any intention to
depart therefrom must be clearly and unambiguously
stated in the statute
concerned. The following passage from Maxwell on the Interpretation of
Statutes[5] is
instructive:
“It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are “fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.”[6]
The
use of the word “may” in s 58 does not, in my view, disclose an
intention by Parliament to alter the common law relating
to voluntary
associations. Not only that but the provision in s 56 for voluntary councils,
in the absence of an express statement
to the contrary, lends weight to the
conclusion that Parliament intended these to be voluntary associations to which
the common law
is applicable. This view is strengthened by the further
provision, in s 57 for statutory employment councils. A trade union wishing
to
be part of an employment council may form one with any willing employer
organization. Alternatively, recourse may be had to the
Minister who may
exercise his powers in terms of s 57 to direct certain groups to form employment
councils where he deems such to
be in the national interest.
I conclude,
therefore, that s 58 does not impose mandatory membership on the appellant
formed, as it was in terms of s 56, and that
membership of the appellant is
governed by its constitution.
In its ordinary meaning the word
‘may’ is discretionary. The starting point in the interpretation of
statutes is that
words are to be given their ordinary meaning. In the words of
LORD REID in Pinner v Everett 1969 3 All ER 257 (HL) at 258:
“The first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.”
Although in the instant case the word sought to be
interpreted is not contained in a statute, the same principle is applicable.
When
given its ordinary meaning the word ‘may’ as it is used in
clause 5:3 of the appellant’s constitution does not,
in my view, conflict
with the intention of Parliament as expressed in the provisions of the Act under
mention. The provision in
s 29 (4) (f) of the Act that “a registered
trade union ... shall be entitled to form or be represented on any employment
council”
does not detract from that view.
The legislature, in
providing for the two different categories of employment councils, ensured that
all unions and employers organizations
could be represented on an employment
council. There is no disharmony between s 29 (4) (f) and s 56 by virtue of
which a trade union
may, in association with an employers’ organization,
form an employment council. Reading the two sections together I do not
discern,
as urged on behalf of the respondent, an intention by Parliament to depart from
the common law by imposing, as it is suggested
it does, any trade union or
employer organization as a member of a voluntary employment council.
It was therefore unlawful for the Registrar to impose the respondent as a
member of the appellant and the appeal must succeed on
this ground. This
conclusion renders it unnecessary to determine the other grounds of
appeal.
Accordingly it is ordered as follows:
The appeal is allowed
with costs.
The judgment of the court a quo is set aside and
substituted with the following order:
“The appeal is allowed with
costs”.
CHEDA JA: I agree
MALABA
JA: I agree
Gill, Godlonton & Gerrans ,
appellant’s legal practitioners
Musunga & Associates ,
respondent’s legal practitioners
[1] See paragraph
(g).
[2] Subs
(3)
[3] S58(g) supra
[4] The Law of Partnership and Voluntary Association in South Africa 3rd ed by Bamford at p 139.
[5] 12th ed by P. St. J. Langan at p116
[6] See George Wimpey & Co., Ltd. v. B.O.A.C. [1955]A.C.169, per Lord Reid at p. 191