City of Harare v Jonas Makarichi & 19 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/416/2016
HARARE, 1 JUNE 2016 &
CASE NO LC/H/36/2016
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/416/2016

HARARE, 1 JUNE 2016 &					           CASE NO LC/H/36/2016

22 JULY 2016

In the matter between

CITY OF HARARE							APPELLANT

Versus

JONAS MAKARICHI & 19 ORS						RESPONDENT

Before the Honourable L F Kudya J

For the Appellant	Ms A Zvoutete  (Principal Legal Officer)

For the Respondent	A Mugandiwa  (Legal Practitioner)

KUDYA J:

This matter was set down as an appeal at the appellant council’s instance. On the set down date and in his heads of argument the respondent argued that the matter was improperly before the court for want of its process not being issued out and filed by a legal practitioner as defined by the Legal Practitioners Act. The applicant opposed the point taken and maintained that it was properly before the court on account of the fact that it was represented by its legal officer who is its employee and who fits within the ambit of who should lawfully issue out process on its behalf and to defend it. It is therefore the point at the outset which is addressed by this judgment.

It is a fact that the council is a legal person which cannot physically issue out process or defend self in a court of law. It is also not contested that the representative who was appearing for the appellant council is its employee and was in court in such capacity as its employee. The only critical question to be decided is whether the council is barred from filing an action and defending it through such a person. That the said representative is a legal person is not doubted and it is also clear from the attendance slip that she appeared as a legal officer of the appellant and not as a legal practitioner as defined by the Legal Practitioners Act. There is no evidence anywhere in the record where it shows that she charges fees as does legal practitioners operating in private practice.

The answer to the argument raised by the respondent rests in what the law says about representation in the Labour Act and the attendant rules. Section 92 of the Labour Act states clearly that a company can be represented by its employee. Nowhere does it state that if such an employee is a lawyer by profession such cannot represent it except if he/she does so as would a private practice lawyer. It is clear that the intention of the law maker was to allow legal bodies to have physical representation and such could came in the form of employees of same where the body in question is clear that it has mandated him on her to do so. It need be emphasised that the Labour Court representation is clearly distinct from that which obtains in the High Court where only registered legal practitioners can issue out process and defend matters. The court is therefore satisfied that the respondent has confused the operations on the two concerned courts and come up with the objection he has made. As stated above such objection is ill founded and has no basis and it cannot detain the conclusion of the matter on the merits. In the premises it should accordingly fail.

IT IS ORDERED THAT:

The point in limine in respect of representation raised by the respondent being without merit it be and is hereby dismissed. The Registrar is instructed to reset the matter down to be decided on the merits.

Each party to bear own costs.

Wintertons, respondent’s legal practitioners