Raymond Gurupira v Ministry of Home Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/479/2016
HARARE, 5 JULY 2016 &
5 AUGUST 2016
CASE NO LC/H/929/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/479/2016

HARARE, 5 JULY 2016 &					        CASE NO LC/H/929/2014

5 AUGUST 2016

RAYMOND GURUPIRA							APPELLANT

MINISTRY OF HOME AFFAIRS						RESPONDENT

Before the Honourable G Musariri, Judge

For the Appellant	C Ngweshiwa (Attorney)

For the Respondent     C Chopamba (Attorney)

MUSARIRI J:

At the onset of the appeal hearing the respondent raised a point in limine. It was to the effect that there was no proper respondent cited. The one cited “Ministry of Home Affairs” is a non-entity at law. It is not a natural person. Neither is it a legal persona. As such it cannot sue or be sued.	 There being no respondent, the matter must be struck off the roll.

The respondent opposed the point raised. They countered that the State Liabilities Act [Chapter 8:14] provides that the Minister responsible “may” be cited where it is intended to sue the State. The use of the word “may” shows that it is not mandatory. Alternatively the court may exercise its powers to condone departure from rules.

I am unimpressed by the appellant’s response. Firstly, this court can only condone departure from its Rules. It cannot condone departures from the general law. It cannot, in casu, confer capacity to sue or be sued where none exists. The appellant intended to sue the State. The Act requires that the Minister responsible be cited. Though the word “may” is used, in this context it is used in a mandatory sense.

In any event there is no legal persona called “Ministry”. That is why the Act permitted citation of the “Minister.” On that basis, I find favour with the respondent’s point. I am fortified in this view by the case of Gariya Safaris v Van Wyk 1996 (2) ZLR 246 H where MALABA J (as he then was) stated that (at page 253 C-D):

“In this case, the person against whom the plaintiff thought it was proceeding as a defendant was non-existent at the time summons was issued. The proceedings and judgment that followed the summons were null and void. To try an action where there is only one party is an exercise in futility.”

It follows therefore that the point in limine must be upheld.

Wherefore it is ordered that:

The respondent’s point in limine (that the respondent cited is a non-entity) is hereby upheld;

The matter is therefore struck off the roll; and

Each party shall bear its own costs.

G Musariri

J-U-D-G-E