Zvanyanya & Ors v Zimbabwe Sugar Milling Industry Workers Union (ZISMIWU) & Ors

The applicants (1st to 10th) and respondents 2 to 6 were rival factions within a trade union (1st respondent). Respondents 2, 3 and 4 were members of the national executive committee of the trade union but had their employment contracts with the 7th respondent (the employer, Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd) terminated in 2016. Three years after their dismissal, they remained on the national executive committee. The applicants alleged that respondents 2, 3 and 4 were automatically disqualified from membership and from holding executive positions because they were no longer employees. Respondents 2 and 3 had appeals pending at the Supreme Court challenging their dismissal, while respondent 4 had lodged an application for leave to appeal. The applicants also sought orders compelling the trade union to hold elections and annual general meetings as required by its constitution. The 7th respondent was cited as a nominal party and abided by the court's decision.

• Whether loss of employment in the relevant industry automatically disqualifies a person from membership of a trade union established in that industry
• Whether ex-employees can continue to hold positions on the national executive committee of a trade union while their appeals against dismissal are pending
• Whether employment in the relevant undertaking or industry is a prerequisite for trade union membership under the Labour Act and the trade union's constitution
• Whether the remedies for termination of membership are confined to those expressly listed in the constitution or extend to loss of eligibility criteria
• Whether pending appeals or applications for leave to appeal suspend the effect of termination of employment for purposes of trade union membership

The court ordered: (i) The second, third and fourth respondents ceased being members of the first respondent upon termination of their employment contracts; (ii) The second, third and fourth respondents are disqualified from holding any positions in the first respondent's national executive committee; (iii) The first respondent shall hold elections to choose members of the national executive committee within 60 days or such other agreed timeframe; (iv) The first respondent shall hold an annual general meeting by not later than 31 December 2019; (v) Costs to be borne by the first, second, third and fourth respondents, jointly and severally.

Employment in the relevant industry or undertaking is a prerequisite for membership of a trade union established in that industry. Once a person ceases to be an employee in the relevant industry, they automatically lose their eligibility for membership of the trade union and are disqualified from holding positions on the executive committee, regardless of whether they are challenging their dismissal. The eligibility requirements for trade union membership are fundamental and continuing requirements; they are not merely initial threshold requirements. A pending appeal against dismissal does not suspend the effect of termination of employment for purposes of trade union membership, as appeals against decisions of non-superior judicial or quasi-judicial bodies do not have suspensive effect. The definition of 'employee' in section 2 of the Labour Act and the provisions of sections 4 and 27 confine trade union membership and office-holding to persons who are currently employed and performing work for remuneration.

The court observed that the trade union had been embroiled in endless litigation driven by factionalism. The court noted that while the applicants sought costs on an attorney-client scale against respondents 2, 3 and 4 alone, this would be irrational given that the first respondent itself had opposed the application vigorously and was itself riddled with factionalism. The court made non-binding observations about the need for court orders to be efficacious and not brutum fulmen (empty threats), commenting that the draft orders sought regarding elections and meetings were too open-ended. The court also observed that clause 7.0 of the constitution regarding exemption from subscriptions for unemployed members had a maximum cut-off period of two months and related only to payment of subscriptions, not to eligibility for membership.

This case is significant in South African and Zimbabwean labour law jurisprudence for clarifying that employment in the relevant industry or undertaking is a fundamental and continuing prerequisite for trade union membership. It establishes that trade union membership cannot be divorced from the employment relationship that gives rise to it, and that ex-employees cannot continue to hold positions in a trade union simply because they are challenging their dismissal. The case reinforces the principle that trade unions exist to represent employees in a particular industry, and that membership is intrinsically tied to employee status as defined in labour legislation. The judgment also clarifies that pending appeals do not automatically preserve trade union membership rights where the underlying employment relationship has been terminated.