By Daniel Nemukuyu
Trade unionist Lovemore Matombo and his 12 colleagues yesterday lost their bid to reclaim control of the Zimbabwe Congress of Trade Unions (ZCTU) after the Supreme Court dismissed their appeal with costs.
The new ZCTU leader George Nkiwane recently won the case at the High Court when Justice Francis Bere provisionally barred the Matombo faction from presenting themselves as the union’s leaders and carrying out any business for the trade union.
The same provisional order by Justice Bere also nullified the December 2011 general conference that elected Matombo, Raymond Majongwe and others leaders of the union. Justice Bere also barred the group from using the ZCTU logo, letterheads, business cards, bank accounts and assets.
That prompted Matombo and 12 others to file an appeal against Justice Bere’s judgment. Deputy Chief Justice Luke Malaba sitting with Justices Anne-Mary Gowora and Yunus Omerjee threw out the appeal with costs, despite a last minute indication by the group’s lawyer Caleb Mucheche to withdraw the appeal.
The dismissal of the appeal came at the time Mucheche, who was under pressure from the three judges who were grilling him on wrongly approaching the Supreme, had decided to withdraw the application.
After a plethora of questions from the three judges, Mucheche realised the fault in the way his clients had approached the Supreme Court before notifying the court of the intention to withdraw the matter.
The court took a 10-minute adjournment to allow Mucheche to take instructions from his clients before he officially decided to withdraw the case. Despite the notice to withdraw the case, the court went on to dismiss the appeal.
The court found that the group had already instituted proceedings to nullify the election of the Nkiwane-led executive at the High Court and that approaching the Supreme Court was a “self-help” move.
It was the court’s view that the group should first pursue their pending High Court application to nullify the election before rushing to the Supreme Court. “This court’s unanimous decision is that the appeal is hereby dismissed with costs,” Justice Malaba said.
“We do appreciate the position taken by the appellants to withdraw the appeal.
“After questions were put to Mucheche, issues became clear that both in terms of the law and fact it is necessary to indicate that both parties are in a dispute involving the Constitutionality or otherwise of the congress of August 19 and 20 last year.
“Both parties have a claim of rights arising from the constitution of the organisation. The claim of rights was taken to the High Court under case number HC8572/11. They correctly placed their dispute before the High Court as an independent body to determine impartially who is right and who is wrong.”
The court also indicated that the decision by the group to drop the appeal did not waste the court’s time and that it did not show that the case was weak. During the hearing, Justice Gowora asked if Mucheche had told his clients that the Nkiwane leadership will be in power until the contested election was set aside by a court of law.
