Marlborough High SDC v Unice Mudewa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/157/24
HARARE 24 JANUARY 2024
CASE NO LC/H/1044/23
09 APRIL 2024
MARLBOROUGH HIGH SDC
APPELLANT
UNICE MUDEWA
RESPONDENT
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE

HARARE 24 JANUARY 2024
09 APRIL 2024

MALBOROUGH HIGH SDC

UNICE MUDEWA

RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant - Mr H. Gwanyanya, Unionist

For Respondent - Mr A. Ndota, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court the both parties raised points in limine. The points shall be dealt with starting with respondents.

Respondent

Respondent stated that appellant’s attorney Mr Gwanyanya does not have right of audience in this Court as he did not file an Assumption of Agency. In response Gwanyanya stated that he uploaded an Assumption of Agency on 23 January 2024. A hard copy was produced. The point arose presumably because the appeal was filed by the employers association on behalf of appellant. However now that the Assumption has been filed albeit belatedly the point falls away. In any event respondent did not allege or prove any prejudice it suffered thereby.

Appellant


1. That the respondent’s affidavit is fatally defective:

The affidavit was deposed by Austin Ndota the National Organizing Secretary of respondent’s union. Though the affidavit does not say so, Ndota stated from the bar that he was authorised to act by respondent who was attending a funeral. He further stated that he has full knowledge of matters he spoke as he represented her before the lower tribunal.

Appellant relied the South African case of
Da Cunha v First Rand 1562/2022

Per Langa J at Para 14

“In a case such as this one there was clearly a need to prove the authority to act especially where same has been challenged Mrs Da Cunha has unfortunately conflated the authority to depose to an affidavit and the authority to act on behalf of a juristic or another person.

… She failed to make the crucial averment that she is authorised to institute the application on behalf of the applicant.”

By parity of reasoning in casu, Ndota was required to prove that he had authority to act. This is not just about competence to depose an affidavit. It concerns the juristic act by a party to oppose an appeal.

2 That respondent has failed to file heads of argument:

In light of the Court’s take on the first point it is unnecessary to deal with the 2nd point.

CONCLUSION

In light of the foregoing analysis, appellant’s point in limine succeeds whilst respondent’s point fails. There being no valid opposition, the appeal shall be treated as unopposed.


Wherefore it is ordered that

1. Appellant’s point in limine is upheld so that respondent’s unauthorised affidavit is struck off the record;

2. The appeal be and is hereby allowed in terms of Rule 29(b)(i) of the Labour Court Rules, 2017; and

3. The determination by Designated Agent A. Chimedza is set aside and substituted with the following
   “The claim for unlawful termination be and is hereby dismissed.”

G MUSARIRI
J-U-D-G-E
--- END OCR FALLBACK ---