National Airways Workers' Union and Air Transport Union v The Minister of Transport, Communication and Infrastructure Development N.O and Others

The applicant trade unions had a long-running legal dispute with Air Zimbabwe Holdings (4th respondent) and its subsidiary Air Zimbabwe (Pvt) Ltd concerning approximately US$35,415,731.80 in unpaid union dues and salary arrears for January 2009 to December 2011. On 23 January 2012, the applicants filed case HC 661/12 seeking to place Air Zimbabwe Holdings and Air Zimbabwe (Pvt) Ltd under provisional judicial management due to alleged mismanagement. On 2 April 2012, the applicants discovered an official letter dated 26 March 2012 from the 2nd respondent (Secretary for Transport) to the 3rd respondent directing that Air Zimbabwe Holdings transfer its shareholding in National Handling Services (Pvt) Ltd (5th respondent) - its only profitable subsidiary - to a government-owned nominee company, thereby dissolving National Handling Services' board. Fearing this would strip Air Zimbabwe Holdings of its assets and render their judicial management application nugatory, the applicants filed this urgent interlocutory interdict on 4 April 2012.

• Whether the matter qualified as urgent for purposes of the court rules
• Whether the applicants satisfied the requirements for an interim/temporary interdict
• Whether the transfer of shares would cause irreparable harm to the applicants
• Whether section 16 of the Labour Act protected the applicants' rights in the event of a transfer of undertaking
• Whether the balance of convenience favoured granting the interdict

The court granted the provisional interlocutory interdict, barring the respondents from giving effect to the transfer of Air Zimbabwe Holdings' shares in National Handling Services (5th respondent) and from interfering with Air Zimbabwe Holdings' assets in any manner that would strip the company of its assets, pending finalisation of case HC 661/12.

A matter is urgent when the need to act arises such that it cannot wait and the application is timeously made; the lawfulness of a respondent's actions is irrelevant to the determination of urgency. An interim interdict will be granted where: (i) the right sought to be protected is clear or prima facie established; (ii) there is well-grounded apprehension of irreparable harm if relief is not granted; (iii) the balance of convenience favours granting relief; and (iv) there is no other satisfactory remedy. Administrative directives to transfer shareholdings in state-owned companies can be interdicted where they would strip a company of its assets and render nugatory pending judicial management proceedings brought by creditors, including employee creditors claiming unpaid wages and union dues. Section 16 of the Labour Act does not apply to protect employees where a transfer directive is silent on the fate of workers and obligations to workers.

The court noted that it could take judicial notice of the notoriety of Air Zimbabwe Holdings owing substantial union dues and salary arrears to workers, and of the fact that Air Zimbabwe (Pvt) Ltd's planes were all grounded and generating no revenue. The court observed that the opposed application in HC 661/12 was close to being set down for hearing as the applicants had filed their heads of argument on 23 March 2012 and only awaited a set-down date. The court remarked that if the relief was not granted, the outcome would be a 'brutum fulmen' (an empty threat/ineffective act).

This case is significant in Zimbabwean labour and company law as it demonstrates the courts' willingness to protect workers' rights by preserving corporate assets pending judicial management proceedings. It clarifies that: (1) urgency is determined by the need to act and timeliness, not by whether respondents' actions are deemed lawful; (2) administrative directives to transfer state-owned company assets can be interdicted where they threaten to render pending litigation nugatory; (3) section 16 of the Labour Act (transfer of undertakings) does not automatically protect workers when transfer directives are silent on workers' rights and obligations; and (4) courts will protect the res litigiosa in pending judicial management applications to prevent asset stripping. The case reinforces the principle that creditors (including employee creditors) can prevent dissipation of corporate assets pending insolvency proceedings.