Sitali Wamundila has further argued that UNZALARU’s failure to show the illegality of the Acting Labour Commissioner’s decision to approve the termination of the Recognition Agreement between the union and the University council, does not warrant the application for judicial review.
Meanwhile, an assistant Labour Commissioner in the Ministry of Labour and Social Security Mukamasole Kasanda, has submitted that the commissioner was mandated to comply with the provisions of the law and notify the concerned parties of the decision to proceed and hear the application by either approving or rejecting the application to terminate.
In this matter, the University of Zambia Lecturers and Researchers Union (UNZALARU) is challenging the Acting Labour Commissioner’s decision to approve the university Council’s application to terminate the Recognition Agreement between the union and the council.
Kelvin Mambwe in his capacity as general secretary of UNZALARU has sued the Attorney General and the University of Zambia Council as first and second respondents respectively.
In February this year, the Lusaka High Court granted UNZALARU leave to apply for judicial review against the Acting Labour Commissioner’s decision and further ordered that the said leave shall operate as a stay of the said decision, pending determination of the matter or until any further direction or order by the court.
Mambwe stated in his affidavit in support of the ex-parte summons for leave to apply for judicial review, that on January 6, this year, UNZALARU held a meeting at which he (Mambwe) as general secretary, expressed concerns over the University Council’s delay in paying members of the union their December 2019 salaries.
“In exercising my freedom of expression and in keeping with the duty to speak on behalf of the union’s members, I lamented government’s failure to adequately fund UNZA and expressed the view that “if elections were held today (January 6, 2020), there were two categories of people that would vote for the PF, either those that were enjoying with them or idiots, it’s as simple as that”,” he stated.
Mambwe stated that arising from what was discussed at the said meeting, the University Council wrote to him alleging that they were inciting industrial disharmony, and further gave the union 48 hours within which to show cause why it should not invoke the provisions of the Act with a view to ask the Labour Commissioner to terminate the Recognition Agreement between the council and the union.
But in an affidavit in opposition to originating notice of motion for judicial review, the University Council has opposed to the application for Judicial Review, stating that the complaint that it lodged to the Acting Labour Commissioner wherein section 65A was invoked to terminate the Recognition Agreement between UNZALARU and the council, was within the parameters of the law.
Wamundila, the University Registrar, stated that at the said meeting held on January 6, this year, Mambwe in his address which was widely published by the media, made a number of remarks some of which fell outside the objects and mandate of the union.
“Some of these remarks included a warning that no students should return to campus until the union members were paid their salaries in full and in addition a myriad of insults to the UNZA management. It is our position further that the insults hurled were derogatory, disparaging, demeaning, spiteful and injurious to the University of Zambia management,” he stated.
Wamundila further stated that UNZALARU waived their right to claim a breach of clause 18 of the Recognition agreement when they had previously responded to a Section 65A application on September 17, 2018, giving reasons why the Recognition Agreement should not have been terminated.
He added that the procedure laid down in Section 65A and criteria set out was duly followed therefore the approval to terminate the Recognition agreement by the Commissioner was valid.
Wamundila noted that UNZALARU despite relying on illegality in their application for Judicial Review had not shown how the decision by the Acting Labour Commissioner was illegal, adding that failure to do that did not warrant the application for Judicial Review.
Meanwhile, the State has asked the court to dismiss the application for Judicial Review with costs.
Kasanda, an assistant Labour Commissioner in the Ministry of Labour and Social Security, stated that the commissioner was mandated to comply with the provisions of the law and notify the concerned parties of the decision to proceed and hear the application by either approving or rejecting the application to terminate.
“The first respondent is mandated to ensure that parties to trade unions conduct themselves in accordance with the law even when they are aggrieved,” stated Kasanda.