Charles Sigauke v City of Harare

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IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO
LC/H/26/2023
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IN THE LABOUR COURT OF ZIMBABWE              JUDGEMENT NO LC/H/26/2023

HARARE, 24 AUGUST 2022 &                                       CASE NO LC/H/262/22

13 JANUAR 2023

In the matter between

CHARLES SIGAUKE                                                    APPLICANT

AND

CITY OF HARARE                                                        RESPONDENT

Before the Honourable Hove J

For the Applicant                            LP. Matapura with J. Gumbo (Legal Practitioners)

For the Respondent	R. Zinhema (Legal Practitioner)

HOVE J:

The appellant was employed by the Respondent prior to him being arraigned before the Disciplinary Committee on one charge of misconduct. The Appellant was found guilty and dismissed from employment.

At the hearing of the appeal, the Appellant raised a preliminary issue. It was submitted and argued that there was no proper opposition before the court on the basis that the opposing affidavit had not been duly authorized, that is, the deponent to the affidavit was not duly authorized to sign the opposing affidavit neither was there proof that he was who he said he was in the opposing affidavit, that is, the Acting Town Clerk.

The basis of this objection in limine is that the Acting Town Clerk has not attached any resolution from the respondent in terms of the Urban Councils Act [chapter 29:15] (Urban Council’s Act) to the effect that he, the deponent has the Authority to depose to the affidavit in opposition.

The Appellant submitted as follows;

“Without doubt, without evidence in the form of a resolution from the Respondent in terms of the Urban Councils Act to demonstrate that the deponent to the affidavit was duly authorized and appointed Acting Town Clerk and also authorized to sign, the affidavit is improperly before the Court.”

The argument is therefore that there ought to have been a council resolution in terms of the Urban Council’s Act. It was further argued that there is an obligation that there be a full council resolution authorizing him to represent Council. The provisions of section 136 (1) of the Urban Council’s Act provides for the functions of the town clerk and for purposes of signing affidavits on behalf of the council, the town clerk needs authorization from council by way of a council resolution.

In the opposing papers filed with the Court, there was nothing attached to show that the Acting Town Clerk was authorized by a council Resolution to file any papers on behalf of Council.

It was conceded that the provisions of section 136 are peremptory in so far as they provide for and regulate the town clerk’s authority.

The appellant further submitted that the Court enjoys no power to condone non-compliance with statutory provisions. The appellant referred to Authorities to support the position that the person who deposed to the affidavit in response, on behalf of the City of Harare, was not properly authorized and as such there was no valid opposition before the court.

Grant Trust v Creative Credit [Private] Limited SC 146/21

Air Duct Fabricators [Private] Limited v Machada D.M. and Sons (Private) Limited SC 54/16

Chiroswa Minerals (Private) Limited and Anor v Minister of Mines and Others HH 107/15

In the Grant Trust Case (supra) the learned Judge of Appeal made the following observations;

“It is correct to say that the learned Judge a quo found that the applicant failed to comply with the strict mandatory provisions of the law and that therefore the application before him was a nullity. At page 5 of the cyclostyled judgment, the learned Judge properly relied on the dictum in Air Duct Fabricators (supra). That case is authority for the proposition that failure to comply with mandatory course of action invalidates the thing done.”

The Learned Judge of Appeal went on to state that;

“Having correctly articulated the law, the learned Judge a quo appreciated that he ought to have struck the application off the Roll as a nullity for want of compliance with the law.”

The learned Judge of Appeal in his analysis concluded and held as follows;

“On the basis of the law as articulated through the cases, once the learned Judge had taken the correct view that the main application was founded on a nullity, he ought to have declared the application a nullity and stop there.’

In this case, it has not been denied that the acting town clerk failed to attach any resolution authorizing him to act on behalf of the council. Further, it has been conceded that the provisions of section 136 of the Urban Council’s Act are mandatory. Failure, therefore.to comply with the mandatory provisions of the Urban Council’s Act renders the papers and affidavit filed by the Acting town Clerk on behalf of the Respondent fatally defective and a nullity. There is thus no opposition to the appeal filed with the Court.

The law is as was established by the Supreme Court and no useful purpose will be served by relying on Judgments of the High Court where they depart from the position of law as per the decision of the Supreme Court in the case of Grant Trust (supra) and Air Duct Fabricators (Private) Limited v D.M. Machada and Sons (Private) Limited (supra).

The case of Dalny Mine v Musa Banda 1999(1) ZLR 220 does make the legal position that Labour matters ought not to be decided on technicalities but any irregularities must be put right. In casu however, the irregularity results in a nullity. The opposition is rendered a nullity, there is therefore nothing to put right. The matter is unopposed. The Preliminary issue should be upheld.

In the premises the appeal must succeed and the following order is appropriate;

ORDER

The appeal being unopposed it be and is hereby upheld with each party bearing its own costs.

The appellant is reinstated into his position with no loss of salary or benefits with effect from the date of this judgment.

Shomwe Nyakuedzwa Attorneys', Appellant’s Legal Practitioners

Gambe Law Group, Respondent’s Legal Practitioners