Packaging One (Sparkling Beverages) Employees v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/645/13
HELD AT HARARE 13TH NOVEMBER 2013
CASE NO
JUDGMENT LC/H/645/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/645/13

HELD AT HARARE 13TH NOVEMBER 2013		CASE NO LC/H/286/13

AND 22ND  NOVEMBER 2013

In the matter between:-

PACKAGING ONE (SPARKLING BEVERAGES			Appellant

EMPLOYEES)

And

DELTA BEVERAGES						Respondent

Before Hon  Justice L.M. Murasi

For Appellant		Ms R Makamure (Legal Practitioner)

For Respondent		Advocate T Magwaliba (Legal Practitioner)

MURASI, J

Respondent introduced a fourth shift at the workplace and this led to different interpretations of the relevant Collective Bargaining Agreement (CBA) governing Respondent’s subsidiary.  The matter was brought before the Works Council which ruled against the employees.  The employees are dissatisfied and have approached the Court for relief.

At the beginning of the hearing, Respondent raised a point in limine.  Respondent averred that for the appeal to be heard, it must be valid in the first place, that is, the parties must have legal capacity to appear before the Court.  Respondent stated that Appellant has been described as Packaging Line One (Sparkling Beverages) Employees and none has been identified by name.  Further, their  numbers have not been set out.  Respondent further submitted that there were serious consequences arising therefrom especially when it came to matters of costs.  It was further submitted by Respondent that Rule 12 which relates to informality of proceedings in the Labour Court does not cover void proceedings especially where the Appellant is non-existent.  In light of the above submissions Respondent prayed that the appeal be struck off the roll.

Appellant in response, stated that a list of the litigants was availed meaning that they are identifiable.  It was further submitted that Respondent had been dealing with Appellant all along and raising the issue at this juncture showed male fides on the part of the Respondent.  Appellant further drew the Court’s attention to the provisions of section 2 of the Labour Act.

The Court takes cognisance of the fact that similar matters have been dealt with by the Supreme  Court and this Court is guided by precedent.  In Panganai and Others v Kadir & Sons (Pvt) Ltd HH 26/95, Malaba J, (as he then was) had this to say:

“The first question is whether all the applicants are properly before the Court.  Clara Panganai swore the founding affidavit in which she said she had the authority of the other twenty workers to represent them.  No affidavits were filed by any of the twenty workers authorising her to represent them and verifying what she said in the founding affidavit.  Clara Panganai cannot represent the other workers.  Each of the twenty workers should have deposed to an affidavit identifying himself with the cause of action and approving the fact of being joined in the action.  Mr Paul who appeared in court purporting to represent all the twenty workers could not have had the mandate to represent them.  As an agent he could only represent principals who were properly before the Court.  Only Clara Panganai is properly before the court.”

In Retrenched Employees of National Breweries Ltd as

represented by Nathan Mudondo v National Breweries Ltd & Another SC 121/02, Cheda JA had this to say at page 2 of the cyclostyled judgment:

“There is not even a single supporting affidavit from any of the employees concerned.  It is just his word to that effect.  This is certainly insufficient.  There should be a proper mandate to represent parties in an action of this nature.

This is very essential, especially where the authority to represent another party is challenged, as in this case.  In addition, the court must be satisfied that such party authorised the  other to represent it, as an order for costs could be made against the losing party including the party that is represented.”

Lastly, in Zimbabwe Bata Shoe Company Ltd v Bata Shoe Company Middle Management SC/30/12 it was held:

“The Appellant has taken the point that although the Bata Shoe Company Middle Management is cited as the Respondent, it is not a legal person at law, with capacity to sue or be sued.  Therefore there is no Respondent before this Court.  Similarly there was no Respondent before the Labour Court or a claimant before the Arbitrator.

In light of the recent decision of this court in CT Bolts (Pvt) Ltd v Workers’ Committee SC/ 16/12, this Court is of the unanimous view that the Respondent is not a legal persona.  Consequently there is no Respondent before this Court.  Neither was there a Respondent before the Labour Court not a claimant before the Arbitrator.  Both proceedings before the Arbitrator and the Labour Court were therefore a nullity at law.”

Having regard to the case law authorities cited above, it is clear that Appellant was not properly before the Court.  The Court was referred to the provisions of section 2 of the Act and Rules 12 and 26.  The Court is of the view that Rule 12 which refers to informality of proceedings relates to proceedings which are properly before the Court as stated in the Panganai case (supra).  The Court is in agreement with submission by Respondent’s Counsel that section 2 of the Labour Act does not have the effect of promoting equity and justice where basic fundamental rules have not been adhered to.  There were no founding affidavits filed with the Court as is required by law.

In the result, the Court finds that the Appellant is not properly before the Court and the point in limine must succeed.  The appeal is accordingly struck off the roll.

There is no order as to costs.

Kantor & Immerman, Appellant’s Legal Practitioners

Dube, Manikai & Hwacha, Respondent’s Legal Practitioners