Samuel Charles Tsvangirai and Tawanda Mashona v Baking Industrial Workers Union and Brian Bonderai N.O and Jefta Muvunzi N.O

The first and second applicants were employed in the baking industry and were members of the Baking Industrial Workers Union (first respondent). They were elected as President and National Treasurer respectively at the union's National Congress held between 19-21 February 2015, with tenure to expire in 2020. Their employment in the industry was terminated in 2015. On 24 September 2016, the union's National Council convened a meeting and decided that following the loss of employment in the industry, some national executive members, including both applicants, ceased to be office bearers and vacancies had arisen. New office holders were appointed. However, the applicants were actually removed from office at an earlier Executive Committee meeting on 20 May 2016, which was chaired by the first applicant himself until his removal. The applicants filed an application on 26 April 2017 seeking declaratory orders that the decision to remove them was unlawful, null and void, and that they remained office bearers.

• Whether the application was properly characterized as one for declaratory relief or was in fact an application for review
• Whether the applicants ceased to be members and office bearers of the union upon losing their employment in the baking industry
• Whether the Executive Committee/National Council had jurisdiction to remove the applicants from office or whether only the National Congress could do so
• Whether the application was filed within the prescribed time limits for review applications

The application was dismissed with costs.

When determining whether an application is for declaratory relief or review, a court must examine the grounds of the application and the evidence produced in support, not merely the form of relief sought. Where the substance of an application challenges a decision on grounds such as absence of jurisdiction or irregularity in proceedings, it is properly characterized as a review application regardless of whether declaratory relief is sought. Applicants cannot avoid the procedural requirements applicable to review applications, including prescribed time limits under section 27 of the High Court Act, by simply framing their application as one seeking declaratory relief. An application that is in substance a review but improperly framed as declaratory relief and filed outside the time limits for review is improperly before the court and must be dismissed.

The court observed that both the applicants and respondents appeared to be operating under a misapprehension that the applicants were removed from office at the meeting of 24 September 2016, when in fact the minutes revealed they were removed at the earlier meeting of 20 May 2016. The court noted that it would have been illogical for the first applicant to term the 20 May 2016 meeting unlawful when he himself was the chairperson of that meeting until his removal. The court also commented that illegality is a ground for review under common law. The judgment suggests that it appeared the applicants filed the declaratory application in an attempt to escape the consequences of their failure to act timeously within the review period.

This case is significant in Zimbabwean civil procedure for reinforcing the principle established in Geddes Ltd v Tawonezvi that courts must look at the substance of applications rather than their form when determining whether proceedings are for declaratory relief or review. It confirms that litigants cannot circumvent procedural requirements for review applications (particularly time limits under section 27 of the High Court Act) by merely framing their relief as declaratory orders when the substance of their challenge is based on grounds for review such as absence of jurisdiction or irregularity. The case serves as a warning against attempting to disguise review applications as declaratory applications to avoid stringent time limitations and other procedural requirements applicable to reviews.