Andrew Magarasadza & 34 Others v Freda Rebecca Gold Mine Holdings Limited t/a Freda Rebecca Gold Mine & Associated Mine Workers Union of Zimbabwe

The applicants were 35 employees of Freda Rebecca Gold Mine whose employment contracts were unilaterally varied by the employer in 2009. Some employees who refused to sign the revised contracts were dismissed. The Associated Mine Workers Union of Zimbabwe (second respondent) lodged a complaint on behalf of employees to the Labour Officer, which was referred to arbitration. The arbitrator found the unilateral variation unlawful and declared the new contracts null and void, ordering fresh negotiations. Freda Rebecca appealed to the Labour Court, which struck off the appeal for non-compliance with the arbitral award. Freda Rebecca then appealed to the Supreme Court (SC 570/14). This appeal was postponed sine die due to issues regarding citation and representation of parties, arising from misunderstandings between the applicants and their union. The applicants then brought this chamber application seeking to substitute the union and be listed in their individual capacities as respondents in the pending Supreme Court appeal SC 570/14. The second respondent did not oppose the application or attend the hearing.

• Whether the application is properly characterized as one for substitution or joinder of parties
• Whether the Supreme Court sitting in chambers is the proper forum for such an application
• Whether parties who were not cited in original proceedings can subsequently be added or substituted in an appeal arising from those proceedings
• Whether the application is vague and embarrassing due to inconsistency between the relief sought and submissions made
• Whether a trade union representing employees must cite those employees or can act entirely in substitution of them

The application was dismissed with costs.

A party who was not privy to original proceedings cannot become a party to an appeal emanating from those proceedings. An application is vague and embarrassing where there is fundamental inconsistency between the nature of relief sought in the draft order and the characterization of the application in submissions. The Supreme Court, not being a court of first instance, is not the proper forum for applications seeking to add or substitute parties in pending appeals. A judgment may not be made affecting a person or entity that was not a party to the proceedings, and for a party with a real interest in a matter to be bound by a court's judgment, that party must be cited.

The court observed that the second respondent trade union had substituted itself for the applicants and other employees entirely without citing itself in a representative capacity or making reference to individual employees, despite individual employment rights being at stake. This resulted in an incompetent arbitral award ordering negotiations between employer and union for contracts that would ultimately be between employer and individual employees - described as an "untenable result". The court also noted that the first respondent had raised the issue of the union's locus standi at arbitration but no action was taken then to join the individual employees, suggesting the applicants were attempting to circumvent a legal point previously raised by seeking to enter the proceedings at the appellate stage.

This case is significant for establishing important principles regarding party citation and representation in labour disputes in Zimbabwe. It clarifies that: (1) parties who were not cited in original proceedings cannot subsequently join or be substituted in appeals from those proceedings; (2) applications must be properly characterized and the relief sought must align with submissions made, otherwise pleadings will be vague and embarrassing; (3) the Supreme Court is not the proper forum for applications for joinder or substitution in pending appeals; (4) trade unions representing employees in labour disputes should cite employees or clearly indicate representative capacity, as individual employment rights are at stake; and (5) arbitral awards and judgments cannot bind or affect persons who were not parties to the proceedings. The judgment highlights procedural deficiencies in how the union conducted the original arbitration, leading to an incompetent award.