Onias Mawarire v National Parks and Wildlife

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/MS/18/2013
HELD AT MASVINGO ON 15 NOVEMBER, 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/MS/18/2013

HELD AT MASVINGO ON 15 NOVEMBER, 2013	      CASE NO. LC/MS/CON/02/2010

AND 6 DECEMBER, 2013

In the matter between:-

ONIAS MAWARIRE					-		Applicant

And

NATIONAL PARKS AND WILDLIFE			-		Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Chikozho Charles (Z.C.T.U.)

For Respondent 	-	Mwila Mufwamba (Human Resources Officer)

CHIVIZHE, J.

The matter was placed before me as an application for condonation of late noting of appeal.

On the date of hearing the Respondent took a point in limine that by virtue of the provisions in Section 92 of the Labour Act [Cap 28:01] which provisions limit representation of parties in the Labour Court to registered legal practitioners or official/employees of registered trade union/employer organization of which the employee is a member; that it being very clear that by the time of his dismissal the Applicant was not a member of any trade union affiliated to Zimbabwe Congress of Trade Union (Z.C.T.U.) and that it being also a fact that no dues were collected for transfer to the trade union concerned it was Respondent’s submission that the application be dismissed on the basis of the Representative’s lack of locus standi.

The point in limine was opposed by the Applicant on the basis that his Representative, contrary to Respondent’s submissions, had right of audience/representation before the Labour Court.  The court was referred to Section 52 of the Labour Act [Cap 28:01] which allows for the trade union to levy for services which might be needed by employees or former employees.

The Respondent in response further challenged the veracity of the statement by the Applicant’s Representative and insisted that the Applicant was not a member of the Z.C.T.U. The court thereafter directed the Applicant to place before the court such proof as to show that he was indeed a member of Z.C.T.U.

On the 21st March, 2013 the Applicant tendered in evidence two documents.  The first is a letter which is authored by the same representative Mr C. Chikozho, a paralegal officer of Z.C.T.U. in which he wrote to the court stating that Z.C.T.U. entered an agreement with the Appellant to assist him.  He further wrote that the issue of membership had previously been raised in the same matter and the Labour Court had proceeded to dismiss the point.  Attached to the letter was an agreement form signed by the Applicant on the one part and by Mr Chikozho in his capacity as Z.C.T.U. Officer.  The Agreement form showed that the Applicant is not a member of any of the Z.C.T.U. affiliate union.  He however had instructed Z.C.T.U. to represent him in the matter between himself and National Parks.  He in the same document agreed to pay Z.C.T.U. a non-refundable consultant fee of $20.00.  He further agreed to pay a 20% levy to Z.C.T.U. for services as he is not a member.

The Respondent in its notice of opposition filed attacked the agreement on the basis that as the document is not date stamped and does not show receipt of consultation fee the agreement was not authentic.  The Respondent also raised issues that touched on Applicant’s honesty which in my view were not relevant for the resolution of the present matter.

The simple issue that was before the court was whether the Applicant is a member of Z.C.T.U. or not.  This is because of the clear provisions in Section 92 of the Labour Act [Cap 28:01].  Section 92 reads as follows:

“A party to a matter before the Labour Court may appear in person or be represented and appear by –

a legal practitioner registered in terms of the Legal Practitioners Act [chapter 27:07]; or

an official or employee of a registered trade union or employers organization of which the party is a member.”

Clearly therefore for one to be represented in the Labour Court one has to be represented by either a Legal Practitioner or an official/employee of registered trade union of which the party is a member.  The mischief that the legislator intended to avoid is clear.

The Applicant also sought to rely on Section 52 of the Labour Act [Cap 28:01].  Section 52 recognises the right of registered unions to levy union or association dues.  Clearly that section had no application in the matter that was before me.  The Applicant in his papers did not dispute that he is not a member of Z.C.T.U.  In the agreement form tendered to the court he personally admitted to that position on at least two occasions.  That agreement was therefore of no probative value to his case.  The court also dismissed the contention that the Labour Court had previously determined that Applicant’s Representative had right of audience as this was just a bald averment made with no substantiation.

Clearly the Applicant not being a member of Z.C.T.U. or its affiliates the Representative had no locus standi before the court.  The Applicant’s Representative having no locus standi the matter had therefore been improperly set before the Court.  It was for these reasons that after hearing arguments and considering the record I handed down an order in the following terms;

The point in limine is upheld.

The application for condonation of late noting of appeal is struck off the roll with no order as to costs.

Zimbabwe Congress of Trade Union, Representing the Appellant.

Human Resources Officer, Representing the Respondent.