Barnabas Marau v NetOne Cellular (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/417/25
HELD AT HARARE
CASE NO LC/H/854/25
21 OCTOBER 2025 & 28 OCTOBER 2025
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IN THE LABOUR COURTOF ZIMBABWE HELD AT HARARE

21 OCTOBER 2025 & 28 OCTOBER 2025

JUDGMENT NO LC/H/417/25 CASE NO LC/H/854/25

In the matter between:

BARNABAS MARAU	APPELLANT

AND

NETONE CELLULAR (Pvt) Ltd	RESPONDENT

Before the Honourable Tsikwa J

For Appellant: P Gomo

For Respondent: N Mangoyi

TSIKWA, J: I dealt with the matter on 21 October 2025 and handed down ex tempore judgment. The respondent has requested for written reasons. These are they.

This was an appeal against the decision of the Designated Agent, Ms Mgazi upholding the decision of the respondent handed down on 29 April 2025.

Before the appeal could be argued on merits the appellant raised a point in limine.

POINT IN LIMINE

The appellant raised the point that the new resolution filed of record this morning for the purposes of granting Raphael Mushanavani authority to Netone Cellular (Pvt) Ltd was defective. It was submitted on behalf of the appellant that this resolution only granted him authority to file affidavits in the matter between Barnabas Marau and Netone Cellular (Pvt) Ltd. It was further argued that such an authority is defective in that it does not state that the board was aware of the previous proceedings that took place prior to 16 October 2025. It was argued that through the resolution the respondent ought to have indicated that it was aware of such proceedings by way of ratifying what was done prior to 16 October 2025.

It was submitted on behalf of the appellant that in the absence of ratification and further affidavits from Raphael Mushanavani after 16 October 2025 there is no proper notice of opposition and opposing affidavit before the court and appeal must be treated as unopposed.

This court was referred to the case of Arosume Property Development (Pvt) Ltd v Farai Mashonganyika and Anor HH143/25 by Dembure J where he stated as follows:

“As outlined in the Madzivire and Dube cases supra, a resolution of the board filed must show that the company indeed aware of the proceedings and that it has authorized the specific proceedings before the court. The resolution must also in clear terms give the deponent to the founding affidavit the specific authority to act on its behalf in commencing the instant application. In this regard, it has been expressed by several authorities that a blanket resolution is invalid. It is therefore, trite that a board resolution must authorize the specific litigation involving the parties before the court. One which purports to authorize all litigation by the company in the future cannot the requirement of specificity and therefore fatally defective and a nullity. Thus, in Mkandla v PPC Zimbabwe (supra) Kabasa J had this to say:

“In Beach Consultancy (Pvt) Ltd v Makonya and Anor HH696/21, Makomo J had the occasion to deal with the issue regarding blanket authority. The learned judge acknowledged the convenience that may dictate that a blanket authority may be given in some cases as it may be onerous for big corporates to routinely convene board meetings to pass resolutions granting an official to represent it each time such a corporate is engaged in litigation.

Having said that the learned judge went on to say:

“Unfortunately, this apparently convenient practice is in my view not supported by law. The current position of the law is that it must be shown that the corporate is aware of the proceedings that it is authorizing, The reason for insistence on a company being aware of the proceedings is to confirm that it is indeed the company that has taken the decision to participate In the court case and it is not an unauthorized person who is dragging the company to court without its knowledge.”

Reference was also made to the case of Makuvire v Zvarivadza and Anor 2006 (1) ZLR 514 (S).

The respondent further submitted that the opposing affidavit is properly before the court and as authority for that submission the court referred to the case of Bere v JSC and Ors SC 1/22 and Ovession Mutandwa v Sunningdale 2 Medical Centre HH510/24 among others.

In oral submissions counsel for the respondent argued that the resolution that was filed on the day of hearing of the matter did not take away the previous resolution. Counsel for the respondent further submitted the resolution dated 16 October 2025 filed to allay fears that the respondent was not aware of these proceedings.

It was further submitted on behalf the respondent that what was important was to tender proof of authority when the authority to represent a legal person is challenged. Reference was made to the case of Cuthbert Elkana Dube v Premier Service Medical Aid Society and Anor SC 73/19. Counsel for the respondent further made the submission that Netone Cellular is such a big organization / entity making impossible for the board to always meet each time a resolution is required. Further it was submitted that the specificity required relates to the need to specify the

parties to the dispute and not specific case number as that can lead to ab absurdity. The court was referred to the case of Bere v JSC (Supra). Counsel further submitted that Raphael Mushanavani the CEO for the respondent stated in the affidavit that he has the authority to depose of the affidavit and there is no reason to doubt him.

It was argued the opposing affidavit is properly before the court and as such the point in limine must be dismissed.

I n replication appellant’s counsel argued that the previous resolution cannot be relied upon because it is a general resolution and this court ruled on 8 September 2025 that it was null and void. Counsel further submitted that the resolution filed on the day of hearing dated 16 October 2025 did not help matters because it had effect from that date and did not ratify what had taken place prior to that date. It was said the resolution did not show that the respondent was aware or had given its blessing to what transpired prior to 16October2025.

Applicant’s counsel further submitted that the Bere case (supra) was distinguishable from the case at hand in that the general resolution in that case was held to be valid because the Acting Secretary of the JSC was given authority to represent JSC in terms of Section 10 of the Judicial Services Act. Counsel also referred the court to the case of Mapondera and 55 Ors v Freda Rebecca Gold Mine Holdings Limited SC 81/22 which cited the case of Dalny Mine v Banda wherein it was stated as follows:

“As a general rule, it seems undesirable that labour relations should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities be ignored. Imen that such irregularities should be put right. “

The was argued the respondent was aware of the need to have a proper resolution as from the previous court ruling on 8 September 2025 but never bothered to rectify the anomaly. Further it was submitted that the respondent was reminded of the need to file a resolution through an order by Justice Kudya but still no positive steps were taken to obtain a valid resolution.

Counsel for the appellant finally prayed that the appeal be treated as unopposed.

APPLICATION OF THE LAW TO THE FACTS

The relating to representation of legal persons in court proceedings is no mystery and is well settled. A natural person must be authorized through a board resolution which must specify the particular case it relates to. General board resolutions are considered null and void. The case of Arosume Property Development (Pvt) Ltd (supra) cited by applicant’s counsel is quite instructive in this regard. The court’s order of 8 September 2025 and an order by Justice Kudya was a reminder to the respondent to have a resolution which conformed to the requirements of the law. Respondent failed to do so. Instead, another resolution was done dated 16 October 2025 which authorized Mr Mushanavani to sign affidavit in the case between the Netone Cellular and Barnabas Marau. What is missing in this resolution is specific mention by respondent that it was aware of the proceedings

that took place prior to this date and it was with its blessings that the appeal was opposed. Specific mention had to be made of the fact that Raphael Mushanavani was duly authorized to depose of an opposing affidavit.

Counsel for the respondent noticed this anomaly and sought to rely on the initial resolution. She submitted that the new resolution did not set aside the one already filed of record. May be counsel for the respondent when she made that submission, she had forgotten the fact that in previous proceedings the court had a finding that the resolution was defective and a nullity in terms of law. Since it was nullity, it was not possible that it could relied upon in these proceedings. It is common cause that one cannot put something on nothing and expect it to stand. Instead, it not as it is bound to fall down.

In Madzivire v Zvarivadza 2006 (1) ZLR 514 (S) it was stated as follows:

“It is clear from the above that a company being separate legal person from its directors cannot be represented in a legal suit by a a person who has not been authorized to do so. This is a well- established legal principle which courts cannot ignore. It does not depend on pleadings of either party. The fact that the first appellant is the MD of the fourth appellant does not clothe him authority to sue on behalf of the company in the absence of a resolution authorizing him to do so.”

Similarly, the authority granted to Raphael Mushanavani is for him to sign affidavits in the case between Barnabas Marau and Netone Cellular. It did not ratify whatever transpired before this authority was granted. In the absence of such ratification the resolution of the 16th of October does not help solve anomaly created by the earlier resolution.

It has been submitted that Netone is a big entity which covers the whole country such that it might not be possible board meetings for every case since they are scheduled and might not be convenient. The question of convenience was dealt with in the case of Beach Consultancy (Pvt) Ltd v Makonya (supra) by Makomo J (may his soul rest in peace). He stated as follows:

“Unfortunately, this convenient practice is in my view not supported by law   ” The fact that the

board cannot convene a meeting at any point a resolution is required is none event. A resolution is required to authorize a natural person to represent the respondent. At the same time the fact that Raphael Mushanavani is the respondent’s Chief Executive Officer does not automatically clothe him with authority to represent the respondent and litigate on its behalf unless authorised through a board resolution. This position of the law was stated in Mdzivire v Zvarivadza and Anor (supra).

The fact that the respondents scheduled meetings is another submission that cannot be taken seriously. In this era of technological advancement, board meetings can be conducted virtually and resolutions can be made. The respondent, in my view risks prejudicing itself in litigation if it continues to stick to old ways of doing business. In First Mutual Investments Ltd v Reussaland Enterprises (Pvt) Ltd and Ors HH301/17, it was made clear that a resolution authorizing a natural person to represent a legal entity is inevitable. It was held that:

“A company a legal person has no mouth through which it articulates its intentions. It has no ears with which to hear. It has no sense of sight or smell. It has no mind of its own. It speaks to no one except through directors. Not individually but collectively, through resolutions they pass when they are assembled in one room for the purpose of transacting business of the company.”

It was therefore expected that counsel for the respondent would guide the respondent in coming up with a legally binding and valid resolution taking into account that she was there on 8 September 2025 when the application for condonation was granted unopposed. Justice Kudya through her reminded the respondent the need to come up with a valid resolution. Therefore, Counsel for the respondent ought to have reminded respondent that the notice of opposition and opposing affidavits had been filed without being backed by a valid resolution and needed a resolution to ratify them. This did not happen.

The case of Ndebele v Ncube 1992 (1) ZLR 288 (S) is also instructive where McNally JA (as he then was) had this to say:

“It is a policy of the law that there should be finality to litigation. On the other hand, one does not want to do injustice to litigation but it must be observed that in recent years applications for condonation for leave to apply or appeal out of time and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for mercy than justice. Incompetence has become a growth industry. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt, roughly translated: the law will help the vigilant but not the sluggard.”

In casu the respondent was not so vigilant to come up with a resolution that is foul proof authorizing its representative to do specific acts with regards to this case and also indicating that whatever was done previously was done with its blessings. It was clumsy to simply say that Raphael Mushanavani is authorised to sign affidavits……. Ratification was so important in this case taking into account that the earlier resolution was fatally defective for being too general and predating the proceedings.

DISPOSITION

There being no valid resolution authorizing the deponent of the opposing affidavit on behalf the respondent, the appeal is therefore treated as unopposed.

Wherefore it is ordered that:

The appeal be and is hereby allowed.

The decision of the designated agent, Ms P Mungazi dated 29th of April 2025 be and is hereby set aside and substituted as follows:

The respondent is ordered to reinstate the claimant to his former position without loss of salaries and benefits and if the reinstatement is no longer tenable, the respondent will pay damages in lieu of reinstatement.

The respondent will pay the costs of this appeal.

Tembani Gomo Law Practice, Appellant’s Legal Practitioners.

MATLAW Global Investments Commercial, Labour Attorneys, Respondent’s Legal Practitioners