Kuzivakwamwari Paul Mudiwa v CEVAFRICA Logistics Zimbabwe

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/168/24
HARARE 26 JANUARY,2024
CASE NO. LC/H/1023/23
AND 15 APRIL, 2024
In the matter between: -
KUZIVAKWAMWARI PAUL MUDIWA
Applicant
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THE LABOUR COURT OF ZIMBABWE
HARARE 26 JANUARY, 2024
AND 15 APRIL, 2024

In the matter between: -

KUZIVAKWAMWARI PAUL MUDIWA
Applicant
Versus
CEVAFRICA LOGISTICS ZIMBABWE
Respondent
Before the Honourable L. Hove, Judge:
For applicant: Advocate R. Mabwe with Mr. C. Kuhuni
For respondent: Mr. R.G. Zhuwarara

This is an application for review. The applicant seeks to have reviewed, the respondent’s decision to charge him with acts of misconduct.

Brief background

The applicant was employed by the respondent. He alleges that he was retrenched from employment by the respondent. The respondent now seeks to charge him with acts of misconduct. The respondent challenges the applicant’s decision to charge him with misconduct after it had retrenched him. when the matter came up for hearing, both parties raised preliminary points.

The applicant’s preliminary point

It was submitted and argued that the matter was unopposed since there is no notice of opposition. This was argued to be so because the notice filed is defective and does not accord with the law.

The deponent to the opposing affidavit has not attached any resolution to show that he has authority to represent the respondent company in these proceedings. The applicant fortified their argument by drawing the Court’s attention to the case of Madzivire & ors v Zvarivadza & ors 2006 (1) ZLR 514. It was submitted that the Supreme Court in that case was clear that the established legal principle is that a company only acts through representatives of the company since it is a legal persona and not a natural person. The representatives must be authorized by the company’s board of directors to represent the company. The deponent had not attached the requisite authority and was therefore not clothed with the authority to represent the respondent company.

The Court was urged to strike off the responding papers and that the matter be treated as unopposed.

Respondent’s response to the applicant’s preliminary point


The respondent placed reliance on the High Court case of BAC ABC v PWC Motors HH 123/13 where the Court stated that the issue of filing a resolution authorizing a company representatives to litigate on behalf of the company had been blown out of proportion, what was important was that there be authority and once a representative of the company avers in a sworn statement that he or she has authority, the Court should not disbelieve him or her. There is no reason to disbelieve or doubt the deponent.

It again was further argued on behalf of the respondent that the application itself was defective and as such the respondent could not be barred. Reliance for this proposition was placed on the case of Dicron Investments (Pvt) Ltd v Kawa HH 129/17.

**Analysis**

The need for a resolution whenever a representative act on behalf of a company was placed beyond dispute by the Supreme Court, a company resolution is required, it must be filed. The case of Madzivire (supra) was clear that the settled legal principle is that a representative of a juristic person must file a resolution that they have been authorized to act on behalf of that juristic person. This Court is bound by the decision of the Supreme Court and failure to file the resolution makes the opposing papers improperly before the Court.

The Courts have been leaning over backwards to allow the filing of the resolution in cases where the resolution had not been filed. The respondent’s representative should have been aware of this and applied to seek the Court’s indulgence and be allowed to file the resolution when this issue was raised by the applicant’s representative. The respondent did not seek to have the Court allow it to place the resolution before the Court. The Court can therefore not grant something that has not been sought by the party. The respondent must have sought the indulgence of the Court and requested or sought that he be condoned and allowed to produce the authority. The position that the authority must be produced has become trite and where a litigant has not produced it, they must seek to be condoned and to be allowed to file the authority. The respondent did not move the court to allow him to file the authority and the court cannot unilaterally grant something that has not been sought by the parties. The opposing papers are thus defective.

**Preliminary point raised by the respondent**

The respondent argued that this application was improperly before the court. The improper application should dissuade the court from striking out the defective response papers.

The court was invited to look into the validity of the application itself which was argued to be ultra vires rule 20 (1) of the Labour Court Rules, 2017. The rule provides as follows;

> “a person wishing to seek review of proceedings referred to in terms of the act shall, within twenty- one days from the date when the proceedings are concluded, do the following.”

The argument is that no proceedings were concluded and as such the application for review is incompetent or at least premature. The applicant must wait for the disciplinary proceedings to be concluded before seeking any redress or seeking a review.

In response to this argument the applicant’s representative submitted that there are two issues which must be distinguished;

1) The validity of the application
2) The power of this court to entertain a matter brought before it

It was argued that the application complies with the rules of the Court and was therefore valid. The issue of jurisdiction was addressed firstly in terms of the Labour Act [chapter 28:01] (the Act).


Section 89 of the Act provides for functions and powers of the Labour Court. Section 89 (1) (di) provides that the Labour Court can exercise the same powers of review as would be exercised by the High Court. The question to be asked would be whether the High Court has authority to deal with unterminated proceedings? In the case of Machipisa v Nduna NO & anor SC 89/23 the Supreme Court stated that the High Court has power to review unterminated process but this must be in exceptional instances, where the irregularity complained of vitiates the proceedings and or it goes to the root of the proceedings.

It is clear from the above authority that this court can entertain applications for review where the proceedings have not been terminated provided the irregularity complained of does not vitiate the proceedings.

Rule 20 does not provide for the Court’s jurisdiction and must not be interpreted to take away the Court’s jurisdiction as provided by an enabling Act. The decision to bring the disciplinary proceedings is not immune from challenge. That decision by the employer can be subject to review.

The High Court clearly has the power in suitable cases, to interfere with unterminated proceedings. See also:

Bridged and H.V Magistrate Kwekwe and another 1996 (1) ZLR 189

It was submitted that, the error of the law in casu is charging a retrenched employee with acts of misconduct when he is no longer an employee.

The argument that the application does not comply with the rule 20 (1) does not subtract from the fact that the application for review is properly before the Court in terms of section 89 of the Act. I do not accept that this Court has no jurisdiction in casu. It has in terms of sections 89 and 92 EE. The rules regulate the process and do not confer jurisdiction. Jurisdiction is in terms of section 89 and 92 EE which give the Labour Court powers of review that are akin to those of the High Court and the High Court can review unterminated process.

The argument that the Labour Court is a creature of structure and therefore bound by the rules is without merit. The Labour Court is a creature of statute indeed and must act in terms of the powers granted it in terms of the Parent Act, that is the Labour Act. In this case, the parent act does give the Labour Court the power similar to that of the High Court to review unterminated proceedings in appropriate cases.

In the final analysis, I am not persuaded that the application is fatally defective as argued by the respondent. I will therefore dismiss the respondent’s preliminary point and uphold the applicant’s preliminary point. The following order is therefore made;

Order:

1. Respondent’s preliminary point is without merit and is dismissed.
2. The respondent’s papers being fatally defective, the applicant’s preliminary point is upheld and the notice of response is hereby struck off. The matter will proceed on an unopposed basis.
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