Chikomba Rural District Council v Lawrence Magwirot

IN THE LABOUR COURT OF ZIMBABWE                             JUDGMENT NO.
LC/H/247/24

HELD AT HARARE 30 MAY 2024                                  CASE NO. LC/H/261/24

AND 6 JUNE 2024



IN THE MATTER BETWEEN:-



CHIKOMBA RURAL DISTRICT COUNCIL                             APPLICANT

AND

LAWRENCE MAGWIROTO                                          RESPONDENT



Before Mr. Justice L.M. Murasi



For Applicant                           Mr. H. Mutasa

For Respondent                          Mr. T.E. Mudzuri



MURASI J.,

This is an application for leave to appeal to the Supreme Court in terms of section
92 F of the Labour Act, (Chapter 28:01).

At the commencement of the hearing, Mr. Mudzuri raised a preliminary point to the
effect that the deponent to Applicant’s Founding Affidavit did not have authority to
do so. He stated that council business is conducted through resolutions and in the
present matter, there was no evidence that Applicant has issued such resolution
delegating its powers to the deponent to ‘speak’ on its behalf. He relied on the
Opposing Affidavit filed of record. The requisite potions read thus:

      “1. The deponent of the founding affidavit to this application has not
      attached any proof of authority to depose to the founding affidavit despite
      their saying so. The applicant is Chikomba Rural District Council and
      requires a council resolution to authorize and empower any person who
      represents it in court. It is only via such resolution that a court can be able to
      confirm that the corporate in question is aware of the proceeding and has
further upon an exercise of certain individual’s fiduciary duties, consciously
decided to be part of the proceedings.


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      2. The only conclusion is that the deponent lacks such authority and is
      making vague averments to show that they are not well informed of the
      matter. It is trite that an application stands or fall on its affidavit. In casu,
      this application should be dismissed as there is no applicant.”

In response, Mr. Mutasa submitted that the preliminary point was without merit. He
stated that the deponent had stated his position as Human Resources Officer in
Applicant’s employ and was such authorized to depose to the affidavit. Mr. Mutasa
further submitted that in terms of section 69 of the Rural District Councils Act,
(Chapter 29:13), councils delegate their powers to their officers and employees. He
further argued that these officers also dismiss employees on behalf of the council. Mr.
Mutasa further argued that where power is delegated, the exercise of that power was
as good as the power of the delegator. He added that it was in this regard that the
deponent did not require a council resolution or specific authority to depose to the
affidavit.

A reading of the Rural District Councils Act (Chapter 29:13) shows the following.
Section 12 thereof provides:

      “Every council established in terms of this Act shall be a body corporate with
      perpetual success and, in its own name, shall be capable of suing and being sued
      and, generally, of doing, suffering and performing all things which, in terms
      of this act or any other law, ta may do, suffer and perform.”

Section 68 provides:

      “1. With the approval of the Minister and subject to any other enactment, a
      council may delegate to-

      a. The chairman of the council power to appoint or dismiss employees; or
      b. An officer the power to appoint or dismiss employees to or from, as the
         case may be, his department.

      2. Upon any delegation in terms of subsection (1), the provisions of this Act
      relating to the appointment or dismissal of employees which are
      appropriate shall apply, mutatis mutandis, to the chairman of the council or
      the officer, as the case may be, as if he were the council.”

It is therefore not correct as stated by Mr. Mutasa that the Human Resources
Officer had general powers to dismiss employees and by the same token he was
empowered to represent the Applicant. The section clearly provides that this
particular delegation of powers is subject to approval by the Minister. The Court
did not hear Mr. Mutasa to say that there was this authority given to the deponent.
Further no evidence was provided by him of this delegation of powers to the
deponent.

This takes me back to the provisions of section 12 of the Act. The section provides that
Applicant is a body corporate. It is trite that such a legal persona acts through
resolutions. The issue was

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clearly stated in a recent judgment of the Supreme Court. In Tichahleyi Mpofu v
Zimbabwe Manpower Development Fund SC 33/24, the Court dealt with the non-
availability of a resolution where a Chief Executive Officer had purported to
represent the Board without a Board resolution. MWAYERA JA had this to say at
page 11 of the cyclostyled judgment:

      “The challenge was based on the fact that the deponent to the founding papers,
      the chief executive officer, had no authority to institute legal action on behalf of
      the respondent. Upon challenge the deponent ought to have produced the
      Board resolution authorizing him to represent the entity in terms of the settled
      legal position. See the Dube case supra….The CEO is provided for as an ex officio
      member of the board. There is clearly a
      demarcation between the Board and CEO even though he becomes an ex officio
      member of the Board upon assuming office. The fact that the CEO sits on the
      Board by virtue of his position, does not make him the Board in the absence of
      other Board members.”

In the cited case, the deponent was an ex officio board member. Elsewhere in this
judgment I referred to the provision of the Act which requires the Minister’s
approval for an officer to be delegated the powers in section 68. Section 69, which
Mr. Mutasa sought to rely on is equally unhelpful in resolving the absence of
authority to depose to the affidavit. As pointed out above, there is no evidence of a
lawful delegation of powers to the deponent of the founding affidavit. I am of the
considered view that good corporate governance and ‘the settled legal position’
required that, Applicant, being properly seized with matter, would have issued a
resolution identifying itself with the legal processes that were being undertaken.
The suggestions put forward by Mr. Mutasa appear to be an attempt to rewrite
corporate governance jurisprudence without any legal foundation. It is my further
view that the point in limine ought to be upheld. There will thus be no need to
delve into the merits of the application.

The following order is appropriate;

1, The point in limine is hereby upheld.

2. The application for leave to appeal to the Supreme Court is hereby struck off the roll
by reason of a defective founding affidavit, i.e. the deponent to the said affidavit
lacking authority thereof.

3. Applicant to meet Respondent’s costs.
Gill, Godlonton and Gerrans-   Applicant’s legal practitioners

Lawman Law Chambers-           Respondent’s legal practitioners.


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