Sally Michelle Pettigrew v Kim Hulley & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/700/2014
HARARE, 15 JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/700/2014

HARARE, 15 JULY 2014 &			            CASE NO LC/H/442/2013

24 OCTOBER 2014

In the matter between

SALLY MICHELLE PETTIGREW				          APPELLANT

Versus

KIM HULLEY							1ST RESPONDENT

And

MLUNGISI VELEMPINI						2nd RESPONDENT

And

ARUNDEL SCHOOL BOARD OF GOVENORS			3RD RESPONDENT

Before Manyangadze J

For the Appellant		T Vallance  (Trade Unionist)

For the Respondent	F Mahere    (Legal Practitioner)

MANYANGADZE J:

The record shows two actions that the appellant took, following the decision of the respondent’s Disciplinary Authority to dismiss her from employment. The Disciplinary Authority found the appellant guilty of misconduct in terms of the Labour (National Employment Code of Conduct) Regulations, S I 15 of 2006.

The appellant then noted an appeal against the decision of the Disciplinary Committee, on 18 January 2013. Simultaneously with the noting of the appeals, she filed an application for a review of the Disciplinary Authority’s decision.

At the hearing of the matter, Mr Mahere, on behalf of the respondents, raised two points in limine.

The first one was that failure to cite Arundel School as the respondent was fatal both to the appeal and the review. The appellant cited Kim Hulley, the Headmistress as the first respondent, Mlungisi Velempini, the Deputy Head, as the second respondent, and the Board of Governors, as the third respondent. Arundel School itself, as the employer, does not appear on the applicant’s papers.

Mr Mahere averred that the non-citation of Arundel School, the principal respondent, rendered the appeal and the review fatally detective. It means that there is no respondent before the court.

The court was referred to the case of Mukahlera v Clerk of Parliament & Ors HH 107-05. In that case, the applicant cited the Clerk of Parliament, the Ministry of Finance, and the Reserve Bank of Zimbabwe, who ran a Fund from which the applicant applied for a vehicle loan. The Fund itself was not cited. The court stated, inter alia, that:

“It is very clear from the foregoing that the Fund is an independent and distinct entity with its own legal persona and the capacity to sue or be sued in its own name. It is equally clear that it is the Fund which disburses the moneys required to purchase the vehicles under the scheme. Again, the relief sought by the applicant pertains to matters which are directly within the purview of the Fund’s objects and operations. In these circumstances, it clearly behoved the applicant to make the Fund party to these proceedings. Indeed, it should have been cited as the principal respondent in this matter. The other respondents, in casu, properly regarded, were acting as officers or agents of the Fund in its administration of the scheme. The failure to cite the Fund is, in my view, fatal to the disposition of this application and the relief sought thereunder.”

The court was also referred to the case of Old Mutual Asset Management (Pvt) Ltd v F & R Travel & Tours & Car Sales HH 53-07 wherein it was stated:

“The plaintiff in casu who has instituted proceedings is non-existent. There is no such person and consequently, there is no person before the court in the guise of a plaintiff. It is, therefore, an action that is doomed from the beginning as there is no party before the court.”

The appeal and review in casu suffers a similar fate, “as there is no party before the court” in the person of the respondent. This is not a simple or inconsequential procedural technicality. It is fundamental to the court actions concerned. It concerns identification of the correct party against whom a court order has to be made and enforced. Citation of the wrong party renders the action a nullity. Non citation of the principal respondent, the legal persona who bears liability for the action instituted against it as employer, makes such action fatally defective.

In the circumstances, the first point in limine raised by the respondent is upheld. It is not necessary to proceed to the second point in limine, as the first point disposes of both matters.

In the result, it is ordered that:

The first point in limine raised by the respondent, in respect of both the appeal and application for review, be and is hereby upheld.

Both the appeal and application for review be and are hereby struck off the roll.

Each party bears its own costs.

Gill Godlonton & Gerrans, respondent’s legal practitioners