Wise Garira & Others v National Engineering Workers' Union & Another

The first respondent is a registered trade union. The three appellants were employed by the Union: the first appellant as president, second appellant as secretary general, and the third appellant as trustee. On 15 February 2019, they were appointed as signatories to the Union's bank account with the second respondent bank. Subsequently, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019 respectively. The third appellant's trusteeship expired through effluxion of time. The Union sought to remove them as bank account signatories on the basis they ceased to be Union officials. The appellants resisted removal, claiming they were still legitimate Union officials and challenged the authenticity of the Union resolution authorising their removal and the legitimacy of Ben Mambara as Union president. The matter generated multiple conflicting High Court judgments. MUSHORE J declared the appellants to be legitimate office holders and Ben Mambara illegitimate (HC 8111/19). TAGU J granted the order removing the appellants as signatories (HC 6844/19). Subsequent applications by the first respondent to execute the removal order were dismissed by CHIKOWERO J (HC 444/20) and MUSITU J (HC 594/20).

• Whether the appellants could continue as signatories to the Union's bank account after ceasing to be Union officials
• Whether an appeal against dismissal from employment suspends the dismissal decision pending appeal
• The effect of conflicting High Court judgments on the same matter
• Whether the court a quo erred in making a final order removing the appellants as signatories
• The proper exercise of the Supreme Court's inherent jurisdiction in the face of conflicting lower court judgments
• The application of section 92E(2) of the Labour Act regarding the suspension of decisions pending appeal

The appeal partially succeeded. The order of the court a quo was set aside and substituted with an order that: (a) Pending the determination of HC 8111/19, the parties shall not take any steps that will interfere with the operations of the first respondent; and (b) The appellants shall bear the costs of the application jointly and severally, the one paying and the other to be absolved. Each party was ordered to bear its own costs of the appeal.

The binding legal principles established are: (1) When a person is appointed as a signatory to a bank account by virtue of holding office, that mandate terminates automatically upon cessation from office. (2) Under section 92E(2) of the Labour Act, an appeal against a dismissal from employment does not suspend the operation of the dismissal decision. The common law rule that an appeal suspends execution applies only to superior courts of inherent jurisdiction, not to labour tribunals unless statute provides otherwise. (3) A dismissed employee who wishes to remain in office pending appeal must obtain an interim order staying execution under section 92E(3) of the Labour Act. (4) All judicial decisions are presumed correct until set aside by a higher court, even when they conflict with each other. Only an appeal court has the right to declare a judicial decision wrong. (5) The Supreme Court has inherent jurisdiction to control its processes and prevent injustice, including restraining reliance on conflicting lower court decisions pending appeal. (6) It is undesirable and potentially harmful for a person dismissed from office to continue as signatory to their former principal's bank account pending appeal.

The Court made several non-binding observations: (1) It is preferable for the Court to use its original inherent jurisdiction where possible to achieve justice without recourse to "borrowed jurisdiction" under section 25 of the Supreme Court Act, which clothes the Supreme Court with High Court jurisdiction where there is a lacuna. (2) The appellants' failure to obey court orders was ameliorated by the fact they appeared to have been ill-advised to act on the basis of a court order that had been overtaken by events, rather than naked disobedience. (3) It is always wrong for a person to insist on being a signatory to another's bank account without that person's consent, even if they have been wrongfully removed from office. (4) The Court noted that the second respondent bank appeared to have remained neutral as the outcome was unlikely to prejudice it either way. (5) Regarding the first respondent's request for consolidation of multiple appeals, the Court observed that the requesting party had not established a compelling case and was uncertain of the status of the appeals she sought to consolidate.

This case is significant in Zimbabwean labour and administrative law for several reasons: (1) It clarifies that the common law principle that an appeal suspends the decision appealed against does not apply to labour tribunals or the Labour Court unless specifically provided by statute. (2) It confirms that section 92E(2) of the Labour Act reverses the common law suspension principle, meaning dismissed employees remain out of office pending appeal unless they obtain a stay of execution. (3) It demonstrates the Supreme Court's inherent jurisdiction to control its processes and restore order when faced with conflicting lower court judgments. (4) It establishes that all judicial decisions are presumed correct until set aside by a higher court, even when conflicting. (5) It provides guidance on when a court should exercise inherent jurisdiction rather than review jurisdiction under section 25 of the Supreme Court Act. (6) It affirms the principle that a person's mandate as signatory to an employer's bank account terminates automatically upon cessation of employment, regardless of pending appeals.