Morgen Maren v Sugar Production & Milling Industry Workers Union of Zimbabwe & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/154/14
HELD AT HARARE 3RD MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/154/14

HELD AT HARARE 	3RD MARCH 2014			CASE NO LC/H/921/11

& 28TH MARCH 2014

In the matter between:-

MORGEN MARENI							Applicant

And

SUGAR PRODUCTION & MILLING INDUSTRY		1stRespondent

WORKERS UNION OF ZIMBABWE

And

REGISTRAR OF LABOUR N.O.					2nd Respondent

And

ZIMBABWE SUGAR MILLING INDUSTRY			3rd Respondent

WORKERS UNION

Before The Honourable B.T. Chivizhe, Judge

The Honourable L Kudya, Judge

The Honourable E Muchawa, Judge

(IN CHAMBERS)

MUCHAWA, J:

This is an application for leave to appeal which is opposed.

Applicant has given notice of its application for leave to appeal in terms of Section 92F of the Labour Act [Chapter 28:01] as read with Rule 36 of the Labour Court Rules S.I. 59 of 2006.

The grounds of appeal are stated as follows:

The court erred, at law when it found that when the union “once constituted it acquired that separate legal entity and retains it to this day” in view of the provisions of section 30 of the Labour Act [Chapter 28:01].  The section clearly states that an unregistered trade union cannot perform the stated acts in its corporate name.

The court erred at law in finding that the Applicant had no legal interest in the matter in view of the following:-

Section 27 (2) of the Rules allows any person who has an interest in the determination of the matter to apply to be joined as a party to the proceedings.

The court erred at law in finding that the Applicant lost the legal capacity to represent 1st Respondent when he filed his application for withdrawal of registration.  At law, the withdrawal of the application is not synonymous with resigning from the trade union.  Applicant is still the president of 1st Respondent.

In opposition, 1st Respondent raises the point in limine that the

application is defective. On the merits it is argued that the applicationdoes not raise points of law, as required under section 92 F of the Labour Act.

I note that the application for leave to appeal is indeed defective for the following major reasons;

There is no founding affidavit to the application. An application stands or falls on its founding affidavit.  In casu there is no founding affidavit and as such there is no application before me.

The application does not have a draft notice of appeal which is usually attached to an application of this nature.

The application being defective clearly stands to be dismissed.  In the event that we are wrong however, I propose to address the merits.

On the merits, I deal with each of the proposed grounds of appeal.

In ground 1 Applicant alleges that section 30 of the Labour Act

[Chapter 28:01] precludes an unregistered trade union from suing and being sued in its corporate name.  There is no such provision in section 30 which clearly lists what such a trade union cannot do.  The finding that a universitas is a separate legal entity and such status is retained to date cannot be advanced as a point of law.

Ground 2 is also not sustainable at law as the judgment in question clearly illustrates that Applicant did not establish a legal interest as an individual.  In this proposed ground of appeal he is still demonstrating how it is the unregistered union that has a legal interest rather than himself.

It was never a finding of this court that Applicant lost the legal capacity to represent first Respondent when he filed his application for withdrawal of registration.  The court’s finding was that Applicant had not established a legal interest and that section 28 (1) (b) (iii) of the Labour Act [Chapter 28:01] provides for the office bearers, their powers and functions in a trade union.  The court refused to be drawn into that issue.There is consequently no merit in all the grounds of appeal.

It is therefore ordered as follows;

The application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

………………………………

E MUCHAWA

JUDGE

…………………………….  I agree

B.T. CHIVIZHE

JUDGE

………………………….   I agree

L KUDYA

JUDGE