National Airways Workers Union and Air Transport Union v Air Zimbabwe Holdings (Private) Limited and Air Zimbabwe (Private) Limited and The Master of the High Court

The applicants, two trade unions (National Airways Workers Union and Air Transport Union), sought an order placing the first and second respondents (Air Zimbabwe Holdings and Air Zimbabwe) under provisional judicial management. They alleged that by reason of mismanagement or other causes, the respondents were unable to pay debts, including salary arrears owed to employees and union dues that had been deducted but not remitted. The application was filed on 26 January 2012. The deponent for the first applicant was Elijah Chiripasi (vice president) and for the second applicant was Alexander Ngoni Guchu (chairman). They claimed authority by virtue of their positions. In support, they attached Annexures A and B containing documents signed by employees. Annexure A (160 documents, mostly signed 18 January 2012) authorized judicial management proceedings. Annexure B (199 documents, signed between 18 January and 14 February 2012) only authorized representation for salary arrears claims, not judicial management proceedings.

• Whether the deponents to the founding affidavits had authority to depose to the affidavits on behalf of the applicants
• Whether the applicants had locus standi and proper authority to institute judicial management proceedings
• Whether the proceedings were instituted prematurely
• Whether trade unions can sue on behalf of their members under section 29 of the Labour Relations Act
• Whether the mandate from members was sufficient to authorize the institution of judicial management proceedings

The application was dismissed. The applicants were ordered to pay the first and second respondents' costs.

For trade unions to properly institute legal proceedings on behalf of members: (1) The unions must obtain a proper mandate or resolution from the majority of their membership authorizing the specific proceedings; (2) The mandate must be obtained before proceedings are instituted, not after the fact (ex post facto mandates are invalid); (3) The mandate must specifically authorize the type of proceedings being instituted (a general mandate to represent members in salary claims does not authorize judicial management proceedings); (4) The deponents to affidavits must be specifically authorized to depose to those affidavits; (5) Authority cannot be assumed merely by virtue of holding office in the union. Where these requirements are not met, there is no proper application before the court and the matter must be dismissed on the basis of lack of authority.

The court noted that section 29 of the Labour Relations Act [Cap 28:01] provides that registered and certified trade unions and employer organizations are capable of suing and being sued on issues concerning their members. The court referenced the case of Telone (Pvt) Ltd v Communications and Allied Services Workers Union SC 26/06 which established this principle. The court indicated that had the first point in limine not succeeded, it would have considered the other points raised, including whether the proceedings were instituted prematurely, but found it unnecessary to do so given the finding on authority. The court also observed inconsistencies in the annexures regarding which entity (Air Zimbabwe Holdings vs Air Zimbabwe) actually employed the workers, though this did not form part of the ratio.

This case is significant in Zimbabwean law (applicable to South African law by analogy given similar company law and labour law frameworks) for clarifying the requirements for trade unions to properly authorize legal proceedings on behalf of their members. It establishes strict requirements for demonstrating authority: unions must show proper mandate from a majority of members, the mandate must specifically authorize the type of proceedings being instituted, and the mandate must be obtained before proceedings are instituted, not ex post facto. The case reinforces procedural requirements in company law applications, particularly the stringent requirements for judicial management applications. It demonstrates that while trade unions have legal capacity to sue under labour legislation, this capacity must be properly exercised through valid mandates from members.