Joshua Manyange & 27 Others v Julie Whyte (2000)

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/469/2013
HELD AT HARARE 20 & 27 SEPTEMBER 2013
CASE NO. LC/H/469/2013
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IN THE LABOUR COURT 			             JUDGMENT NO. LC/H/469/2013

HELD AT HARARE 20 & 27 SEPTEMBER 2013		   CASE NO. LC/ORD/17/12

In the matter between

JOSHUA MANYANGE & 27 OTHERS				Applicant

And

JULIE WHYTE (2000)				                   Respondent

Before The Honourable P. Muzofa; Judge

For Applicant 	-	M.L. Katsiga (Unionist)

For Respondent	-	Mr Madya (Legal Practitioner)

MUZOFA P.;

This is an application for review.  Before the matter proceeded on merits four points in limine were raised.  On the basis of the points in limine this court dismissed the application.  These are the reasons for dismissal.

The background of the matter is that on the 20th of December 2011 the applicants held management hostage on allegations that they failed to pay the applicants cash in lieu of leave.  Management had to be rescued by the Zimbabwe Republic Police from Southerton Police station.  Eventually disciplinary proceedings were preferred against the applicants.  While the disciplinary proceedings were taking place the applicants filed an urgent chamber application with this honourable court for an interdict to stop the proceedings and to have such proceedings set aside in the event that they had been concluded.  The matter appeared before this court on the 28th of September 2012 and the matter was postponed sine die to enable the applicant to consult with a legal practitioner to properly address the issues raised.  The applicant purportedly filed a withdrawal of the application for an interdict and substituted it with an application for review.

The four points in limine raised being,

That the application for review was irregularly issued.

That there were no proper applicants before the Court.

That the application for review out of time.

That the applicants did not exhaust domestic remedies.

I will deal with the issues as they were presented.

That the application for review was improperly issued

It was submitted on behalf of the respondent that the applicants simply substituted papers for review in place of the application for an interdict.  Documents filed of record show that the application for an interdict was postponed sine die, there is no evidence that it was withdrawn.  As submitted by counsel for the respondent an application for review is not an interlocutory application it should be properly issued which means it is a separate set of proceedings.  The applicants’ representative did not oppose this point in limine and the court therefore accepted that it was unopposed.  On that basis this point in limine succeeds.

That there are no proper applicants before the court.

It was submitted on behalf of the respondent that the record of proceedings reflect that this is the case of Joshua Manyange and 27 others.  However there are no supporting affidavits filed with the court to show that Joshua Manyange was mandated to represent the 27 others.  It is settled law that in such instances supporting affidavits from the said employees should be filed see Nathan Mudondo v The National Breweries Limited and the Ministry of Public Service, Labour and Social Welfare N.O. SC121/02.  In this case a document titled “Mandating affidavit from the workers” was filed.  This document signed by seventeen workers purportedly mandate L. Katsiga to represent them.  However its form is not an affidavit and in any event the workers do not mandate Joshua Manyange to represent them.  It was also submitted that there were seventeen applicants instead of the twenty seven since ten were reinstated.  No application was made for an amendment. This matter has only one applicant Joshua Manyange and the seventeen cannot be properly represented by him.  The applicants’ representative could not ably put up any reasonable argument on this point since he labored under the misconception that the respondents were challenging his capacity to represent the applicants.

That the application for review was filed out of time.

It was submitted that in terms of Rule 16 of the Labour Court Rules 2006 an application for review shall be filed within 21 days from the date when the proceedings sought to be reviewed were concluded.

In this case the proceedings were held on the 11th and 12th of January 2012.  The application for review was filed on the 20th of December 2012 some eleven months after the said proceedings.  Mr Katsiga for the applicants again could not ably address this issue, no reasons were proferred for the delay.  In any event the applicants sought to sneak in the application for review without applying first for condonation of late noting of review.  This cannot be condoned this court rules are to be followed and failure to do so may be fatal to a party’s case.  Mr Kutsiga should have filed an application for condonation to get the court’s leave to file the application for review see Forestry Commission v Moyo 1997 (1) ZLR 254 (SC).

This point in limine is accordingly upheld.

There is no need for the court to proceed to address the other point in limine since it was also not opposed by the applicants.  The applicant’s representative did not ably discharge his mandate he could not even address the issues as raised by the respondent’s representative.  Representatives from trade unions are also required to properly prepare for cases so that the court can hear illuminated argument.  This application for review cannot succeed, it falls on the points in limine raised.

Accordingly it is ordered that

The application for review be and is hereby dismissed.

Each party to bear its own cost.

National Union of the Clothing Industry - Applicant’s Representatives

Wintertons  - Respondent’s Legal Practitioners