National Employment Council for Food and Allied Industries v Minister of Public Service Labour and Social Welfare (Pvt) and Registrar of Labour

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LCH/115/25
HARARE, 13TH MAY 2024
AND
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IN THE LABOUR COURT OF ZIMBABWE	   	 JUDGMENT NO. LCH/115/25

HARARE, 13TH MAY 2024

AND

14TH MARCH, 2025				 		CASE NO LC/H/75/24

In the matter between: -

NATIONAL EMPOYMENT COUNCIL

FOR FOOD AND ALLIED    INDUSTRIES                                                      APPLICANT

AND

MINISTER OF PUBLIC SERVICE                                                                        1STRESPONDENT

LABOUR AND SOCIAL WELFARE (PVT)

AND

REGISTRAR OF LABOUR                                                                           2ND RESPONDENT

Before Honorable Chivizhe J

For Applicant		Mr. L Madhuku (Legal Practitioner)

For Respondent	Mr. P Chibanda (Civil Division of the Attorney General’s Office)

CHIVIZHE, J

There has been a delay in the hand down of the judgement. I extend my sincere apologies to the parties. This is an application for review filed in terms of Rule 20 of Labour Court Rules, 2017. The Applicant is an Employment Council registered in terms of the Labour Act [CAP 28:01]. It is a body corporate enjoying perpetual succession and has the power to sue and be sued in its own name. The 1st Respondent is the Minister of Public, Service Labour and Social Welfare and has been cited as the government official who has been assigned responsibility over the Labour Act [CAP 28:01]. The 2nd Respondent is the Registrar of Labour cited herein in her official capacity as the official provided for in terms of Section 121 (1)(a) of the Labour Act [CAP 28:01].

THE APPLICATION

The Applicant seeks in this application to have reviewed the decision by the 1st and 2nd Respondents, jointly or one of them with the approval of the other to approve an investigator to investigate the affairs of the Applicant contrary to the provisions of Section 63 and Section 63A of the Labour Act [CAP 28:01] and without any other legal basis whatsoever. The 1st and 2nd Respondent announced the appointment of the investigator in a letter dated 22 January 2024 (attached as Annexure 4 to Applicant’s papers). There is attached to this letter a letter containing a complaint addressed to the 1st and 2nd Respondents. (Annexure 5).

The Applicant contends that on 23rd January 2024, the Respondents acted upon the letter (Annexure 3) and dispatched “investigators” to the Applicant’s offices.  The Applicant, acting on legal advice, sought the indulgence of the purposed “investigators” to await communication from the Applicant’s legal practitioners concerning the legality of their mission. The investigators were sent away.

Soon after this, Applicant’s legal practitioners wrote a letter to 1st and 2nd Respondents (Annexure 6).  No response had been received up to the date of the hearing of this matter. The 1st and 2nd Respondents are, however, said to be insisting on proceeding with the investigation as outlined in their letter of the 22nd of January, 2024. (Annexure 5).

GROUND FOR REVIEW

The Applicant has raised only one ground for review. The ground reads as follows;

Illegality: The 1st and 2nd Respondents, jointly or one of them with the approval of the other, made an appointment of an investigator to investigate the affairs of the Applicant contrary to the provisions of Section 63 and 63A of the Labour Act [CAP 28:01] and without any other legal basis whatsoever.

BASIS OF APPLICATION

The Applicant contends that it is a fully functioning employment council operating at all times in terms of the Constitution and the Labour Act [CAP 28:01]. As outlined in the Constitution, the Applicant has an elaborate scheme setting out its membership, structures, grievance and dispute resolution mechanisms.

The Applicant contends that it, as a rule, abides by the rule of law. It is, therefore, aware of the legal provisions governing the regulatory powers and/or supervisory responsibilities of the 1st and 2nd Respondents. The Applicant submits that it is not all employers and trade unions in the food and allied industries that sit in the Applicant’s Committees. Some are also not members of the Applicant. It is therefore not uncommon for employers and trade unions who are not involved in the management of the affairs of the Applicant to approach the 1st and 2nd Respondents with grievance or complaints. The Labour Act [CAP 28:01], however, regulates the relationship between the employment council and the 1st and 2nd Respondents.

The Applicant's basis for approaching this court with an application in this case is that the actions of the 1st and 2nd Respondents in appointing an “investigator” amounts to a nullity. The Applicant contends that there is no law permitting the 1st and 2nd Respondents’ actions in this regard. The Applicant contends that Section 63 (4) of the Labour Act that the 1st and 2nd Respondents have cited as the basis of their action does not grant them such authority.

The Applicant further submits that it is also not known who actually appointed the ‘investigator”. The use of “we” in the appointment letter also raises eyebrows in a situation where no law grants power to a group of people that can describe themselves as “we”.

The Applicant also disputes the claim that the 1st and 2nd Respondents’ actions are justified on the basis of their “receipt” of a complaint of alleged misappropriation of council funds and property.   Applicant contends that there is no provision of the Labour Act [CAP 28:01] that empowers the 1st and 2nd Respondents to receive complaints referred to in these proceedings and to act upon them automatically in the manner they have done. Applicant also submits that in any event, Section 63A of the Labour Act [CAP 28”01] does not permit the penning of what forms the content of the letter of 22nd January 2024.

It is on this basis that Applicant believes that the actions of 1st and 2nd Respondents of appointing an “investigator” is a nullity and must be set aside by this court. In relief, the Applicant prays for the following;

“1. The 1st and 2nd Respondents’ appointment of an investigator to investigate affairs of the Applicant’s announcement in their letter dated 22nd January 2024 (addressed to Applicant’s General Secretary) be and is hereby set aside.

2. That as a consequence of the foregoing the 1st and 2nd Respondents’ letter dated 22nd January 2024 (addressed to Applicant’s General Secretary) be and is hereby set aside.

3. That 1st Respondent pays costs on a legal practitioner and client scale.

POINTS IN LIMINE

The Applicant, through their Head of Argument, have taken two points in limine. The first point in limine is that both the 1st and 2nd Respondents are not properly before the court. It is Applicant’s position that the application must consequently be treated as unopposed.

The Applicant has gone further to submit that the 1st Respondent in particular is not before the court. This is in view of the fact that there is no proof of authorization of the 2nd Respondent to represent him. Nothing has been attached in support of the averment made that the 2nd Respondent is authorized to represent him. Applicant contends that the mere say so of the 2nd Respondent is not sufficient. The Applicant submits that there is therefore no basis for this court to find that there is opposition by the 1st Respondent.

The Applicant has extended the argument further by stating that 2nd Respondent is not in any event, in a position to answer to the issues raised pertaining to the Minister. There is no room for delegation on the principle as laid in Cargo Carriers (Pty) Ltd vs Zambezi & Others 1996 (1) ZLR 613 (S). Applicant further contends that a principle has been firmly established that where a Minister is cited in legal proceedings, he/she must depose to the opposing affidavit as an answering affidavit deposed on his behalf is inadmissible evidence. Reference has been made to Minister of Home Affairs & Another vs Suzman Foundation & Ors [2023] ZAC PPC 1835 paragraph 12.

Turning to the second point in limine relating to the 2nd Respondent, Applicant submits that the deponent to the Opposing affidavit as an Acting Registrar of Labour, is lawfully acting in the capacity of Registrar of Labour. It is a requirement under Section 26 of the Interpretation Act [CAP1:01] however, that an official in an acting capacity can only exercise the power of the official for whom she/he is acting if he/she is lawfully in office. The Applicant is, in other words, demanding the 2nd Respondent to show that he/she is lawfully appointed to act as Registrar of Labour. Applicant contends that in the absence of such evidence, the court must find that there is no opposition by the 2nd Respondent.

Accordingly, both the 1st and 2nd Respondent, not being properly before the court, the Applicant's submission is that the application must be treated as unopposed.

PARTIES SUBMISSIONS

Mr. Madhuku, for Applicant, submitted that he would abide by the Heads of Argument. He, however, wanted to emphasize that the 1st Respondent in the absence of any affidavit deposed to by him was not before the court. There was also no supporting affidavit to the 2nd Respondent Affidavit to show that 2nd Respondent had been authorized by the 1st Respondent to represent him. Mr. Madhuku referred the court to the Cuthbert Dube vs PSMAS SC 73/2019 where the principle had been laid for authority to be produced wherever there is a challenge.

On the second point in limine, he submitted that in the absence of the evidence to show he was lawfully acting in the capacity of Registrar, there was also no opposition by the 2nd Respondent. His prayer was for both points in limine to be upheld.

Mr. Chibanda, in response, submitted that the first point in limine clearly had no merit. The law was very clear: a deponent to an Affidavit has to be the party who is privy to facts and who can positively swear to these facts. In this case, it was the 2nd Respondent. It was his further submission that the Minister and the Acting Registrar were both functionaries in the relevant Ministry.  They work in the same office. It is, however, the Registrar who has the power under the Labour Act to appoint an investigator. She is the one who could depose to an Affidavit. She was also privy to the circumstances surrounding the appointment of the investigator in this case. On the issue of authorization the 1st and 2nd respondent had referred to authorities in their Heads, including Tianze Tobacco Co vs Mutyunyedzwa HH626/15 ; Banc ABC vs PWC Motors (pty)ltd HH123/13 where the courts had underscored that where a deponent has indicated her position in an affidavit that is enough.  Mr. Chibanda also stressed that the Supreme Court had in several authorities dissuaded the Labour Court from determining labour matters on technical points rather they should be decided on the merits. He emphasized that this particular case involved the abuse of public funds. The matter, therefore, had to be resolved on the merits rather than on the technicalities taken. On this basis, his prayer was for the dismissal of both points in limine as lacking in merit. In the event that the court found the points to be merited however the court was urged to follow the approach as taken in the High Court in Ndoro and Another vs Conjugal Enterprises (pvt) ltd HH814/22 which approach was to remove the matter from the roll rather than striking the matter off the roll.

EVALUATION

After considering the submissions by both parties and perusal of the authorities as referred to, it is the court’s finding that both points in limine, whilst they may be with merit, are however not fatal to the proceedings before the court.  I proceed to outline my reasons for the position taken.

Under the first point in limine, the Applicant contends that the 1st is not properly before the court.  The submissions is made that in the absence of a supporting affidavit attached to the 2nd Respondent's papers, he is not properly before the court.

It is the court’s considered view that this point carries weight.  It is indeed correct position as submitted by Applicant that the 1st Respondent as the responsible Minister ought to have deposed to an affidavit.  The Affidavit could have been his own affidavit as it is clear that the court order being sought is directed at both the 1st and 2nd Respondent.  The 1st Respondent cannot be allowed to remain silent and uninvolved in a complaint falling under his purview.  The 2nd Respondent has, however, indicated in the Opposing Affidavit that he is making the averments on his behalf and on behalf of the 1st Respondent, as he is the one who is able to positively swear to the facts.  He further avers that this is necessary as the matter involves the use of the 1st Respondent’s powers under the Labour Act [CAP 28:01].

Whilst the court is prepared to accept the explanation for the 2nd Respondent deposing to the Opposing Affidavit, there has however been no explanation as to why the 1st Respondent has in this case not filed a Supporting Affidavit. There is no doubt that this is necessary for the 1st Respondent to confirm several things.  Firstly, as the responsible Minister, he has to clearly outline that he is aware of the complaints raised. Secondly, that he has, however, delegated his authority to the 2nd Respondent in this case.  Thirdly, he also has to confirm the contents of the 2nd Respondent’s affidavit in so far as it relates to the circumstances surrounding the issuance of the letter by the 2nd Respondent’s office.

It is, therefore, the finding of the court that the failure by the 1st Respondent to depose to a supporting affidavit is an irregularity.  Whether the irregularity is one that is fatal will be discussed after consideration of the second point in limine.

Under the second point in limine, the Applicant submits that the 2nd Respondent himself has no authority to depose to an affidavit. The contention is made that he has not shown in what capacity he is deposing to the Opposing Affidavit. He has merely referred to his title and position in the affidavit. The 2nd Respondent contends that this is enough. The 2nd Respondent has placed reliance on several authorities. Applicant, for reasons as outlined above, contends that this is not sufficient.

The issue as to what ought to happen when the authority of a deponent has been challenged has been well traversed in this jurisdiction. I am grateful to Respondent counsel for the authorities referred to, which authorities do suggest that the absence of authority is not fatal to proceedings.  The court notes however that the authorities as referred are largely from the High Court.  It is safe to state that when it comes to labour matters the position is now settled. Grawe JA (as he then was) after reviewing a long line of case authorities from the different courts, in Cuthbert Duve vs Premier Services Medical Aid Society and Anor SC  73/15 (to which the Applicant has also aptly referred the court) restated the current position of the law on the subject of paragraph 38 as follows;

“[38] The above remarks are clear and unequivocal. A person who represents a large

Entity, when challenged, must show that he is duly authorized to represent the entity”.

(my own underlining.)

In the Opposing Affidavit the 2nd Respondent avers that he is authorized to depose the affidavit. That authority to depose an affidavit has been challenged in this case. On the basis of the Cuthbert Dube decision, the 2nd Respondent must show that he indeed has the authorization to depose to the Opposing Affidavit. The court has already alluded above to the need for 1st Respondent to depose to a Supporting Affidavit. Both points in limine do have merit. The irregularities referred to however are not fatal to these proceedings.

With regards to the relief, the Applicant Counsel had urged the court to find that in the absence of the crucial documents referred to above, the court must treat the matter as unopposed.  The Respondent Counsel, on the other hand, has urged the court to remove the matter from the roll. The court is persuaded by the Respondent. It remains a standing principle that labour matters should largely not be resolved on procedural irregularities. They should be resolved on the merits Reference was aptly made by the Respondents to the Dalny Mine vs Banda. There is also the need to ensure finality to litigation. A striking off the matter in this case would just result in a fresh application with the attendant additional costs for everyone concerned. On this basis, therefore, the matter clearly stands to be removed from the roll.  It is so ordered.