Shaisano Zhangare & 12 Others v Appeals Chairman N.O. & Freda Rebecca Gold Mine Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/505/2016
HARARE, 5 JULY 2016
CASE NO. LC/H/505/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/505/2016

HARARE, 5 JULY 2016			          	       CASE NO. LC/H/APP/1365/15

AND 9 SEPTEMBER 2016

In the matter between:-

SHAISANO ZHANGARE & 12 OTHERS				Applicants

And

APPEALS CHAIRMAN N.O.						Respondents

FREDA REBECCA GOLD MINE LTD & ANOR

Before The Honourable F.C. Maxwell, Judge

For Applicants		Mr J.Bamu (Legal Practitioner)

For Respondents		Mr C. Kwirira (Legal Practitioner)

MAXWELL, J

At the hearing of this matter respondents raised a number of points in limine which are the subject of this judgment.

On 12 November 2015 applicants filed an application for condonation for late filing of an application for review.  The founding affidavit was deposed to by 1st applicant.  11 affidavits were filed in support of the founding affidavit.  Applicants place the blame for not complying with the rules of Court on their erstwhile legal practitioner who renounced agency.  On 25 November 2015 respondents filed their notice of opposition.  They raised a point in limine that first respondent was improperly cited as there is no office of an appeals chairman at the 2nd Respondent.  An appeals committee is appointed on an ad hoc basis as and when the need arises therefore applicants ought to have cited the actual person who acted as the appeals chairman.  On the merits of the application, respondents averred that the explanation given for the delay is not reasonable.

On 21 June 2016 parties appeared before me for arguing the merits of the matter.  Respondent’s Counsel persisted with the point in limine and added some more points which show that Counsel for applicants did not 	pay much attention in the preparation of the papers filed of record.  The following issues were pointed out by respondent’s counsel;

Applicants ought to have cited the Appeals Chairman by name.

12 affidavits are filed of record yet the citation is “Zhangare and 12 Others” therefore there are supposed to be 13 applicants.

Thomas Mapanzure is listed as the 12th applicant but he did not depose to a supporting affidavit.

Ronnie Ndlovu is the 4th applicant.  The rest of the applicants state in their supporting affidavits that they are the 4th applicants.

The citation has “Lazarus” as the 13th applicant.  There is a supporting affidavit by Lazarus Chatamuka.  One is left to assume that “Lazarus” is the same as Lazarus Chatamuka.  At law there is no basis to assume that it is one and the same person.

Applicants cannot seek to derive benefit from proceedings that they were not party to.

Applicants seek to rely on an award by M.C. Kare.  The award involved the second respondent and the Association of Mine Workers Union (AMUZ).  None of applicants is cited as a party to the proceedings before M.C. Kare.

Applicants seek to rely on LC/H/329/10 which involved 2nd respondent and AMUZ.  Again none of them is cited as a party to these proceedings.

Interdict LC/H/ORD/H/106/11 involved Jucha Mwanza and 21 Others.  There is no proof that apart from Jucha Mwanza, the Other applicants were party to those proceedings.

Counsel for respondents submitted that the application should be dismissed as it is incurably bad at law.  Counsel for applicants protested that he had not been given notice of the objections raised except the first one.  He needed time to prepare the response.  The matter was therefore postponed to 5 July 2016.  The following was his response to the preliminary issues.

Order 33 rule 256 of the High Court rules, 1971, is applicable to these proceedings.  Failure to mention 1st respondent by name is immaterial as what is required is that a copy of the application be delivered or directed to the presiding officer, chairman of the court, tribunal or board as the case may be.

On the issue of the supporting affidavits, no prejudice would be suffered by respondent if the position of each of the deponents is clarified.  Rule 24 of the Labour Court rules allows a judge to request for a written notice clarifying or amplifying any statement contained in notice of application lodged by such party.

AMUZ was representing mine workers at Freda Rebecca Mine.  The arbitral award is clear on that.  The same applies to proceedings in LC/H/392/10.  Error in LC/H/392/10 was corrected in LC/H/ORD/106/11 by citing the beneficiaries in their names.  The order citing individual beneficiaries has not been challenged and is extant. Respondents can simply peruse that record to find out which applicants were not party to the previous proceedings.  In any event 2nd Respondent in an affidavit in LC/H/APP/248/16 conceded that the present matter and LC/H/REV/15/16 emanate from the same award by M.C. Kare. 2nd respondent cannot blow hot and cold at the same time, making concessions in one matter in a sworn affidavit and seek to turn around in another matter and seek to adopt a contrary position.

Whilst the supporting affidavit of Thomas Mapanzure was regrettably not included, he was present in person and can confirm that he duly authorized the proceedings on his behalf.  Alternatively he can subsequently depose to a supporting affidavit as opposed to requiring him to institute fresh proceedings.

Counsel for applicants confirmed that applicants appeared before the disciplinary committee individually and the appeals were dealt with separately but by one person.

CITATION OF 1ST RESPONDENT

I did not hear counsel for respondent disputing that the appeals for the applicants were dealt with by one person.  Even though there might not be a permanent office of the Appeals Chairman, I am not convinced that in the circumstances of this case it would be difficult to identify the individual involved.  The whole purpose for proper citation is that the Respondent can identify the rightful person to input into the response.  In casu no prejudice has been alleged by the respondent. Whilst it would be ideal to provide the name of the individual involved, I find that the failure to do so cannot be held to vitiate proceedings in this case.  I therefore dismiss the first point in limine.

APPLICANTS WHO ARE BEFORE THE COURT

Even though the citation is Shaisano Zhangare and 12 Others, I find that they are only two applicants who are properly before the court.  It is trite that an application stands or falls on the founding and supporting affidavits. Counsel for applicants seems to downplay the effect of the errors that are in the supporting affidavits.  He gives the impression that it’s a matter of just clarifying the correct position of each of the applicants.  I hold a different view.  The Court cannot overlook a blatant lie in a sworn statement.  It would have been a different issue if we were talking of ordinary pleadings which are not sworn statements.  I therefore find that all those affidavits of persons claiming to be fourth applicant in this matter when they are not are improper.  They tell a lie and cannot be the basis of proper legal proceedings.

After the irregularity was pointed out to counsel for appellant, he had from 22 June 2016 to 4 July 2016 to decide on the best way forward.  Nothing precluded him from taking corrective action and applying for the leave to file corrected supporting affidavits.  I am of the view that an error in an affidavit cannot be corrected by word of mouth.  It requires another affidavit which explains the error in the sworn statement.  For one to just say it was copying and pasting from the bar is not sufficient.  I therefore find that only Shaisano Zhangare and Ronny Ndlovu are properly before the Court.

WHETHER APPLICANTS CAN BENEFIT FROM PROCEEDINGS IN WHICH AMUZ WAS A PARTY AND IN WHICH THEY WERE NOT CITED

The award by M.C. Kare mentions only three people as affected employees who attended the proceedings at some stage.  These are J. Mwanza, C. Njinga and A. Magarasadza.  As the record will show, A Magarasadza and C. Njinga were not among those who approached this Court in these proceedings.  J Mwanza is among the group that I have ruled are not before this Court.  The question is whether Shaisano Zhangare and Ronny Ndlovu can derive benefit from proceedings in which they were not cited.  In my view they cannot.  As was stated in Gweru Water Workers Committee v City of Gweru SC 25/15, the right to sue accrues to the employees and the employees in their individual capacities can enforce the rights. Representation in terms of section 24 (1) of the Labour Act [Chapter 28:01] does not mean that a person or a body would have the right to substitute itself in place of the employees as a party to the proceedings.  On the record before me there is no proof that the two applicants were party to the proceedings.  Neither is there proof that AMUZ instituted the proceedings on their behalf.  There is no specific mention of them individually.  I therefore find that there is no established link between the proceedings sought to be relied on and the applicants.  As such there is no basis for the application consequently the application cannot succeed.

In the final analysis, even though the first point in limine was dismissed there has been a finding that two applicants are before the Court properly, the third point in limine disposes of the matter.  Though the two applicants are properly cited, the basis of their application is faulty.  They cannot seek to derive benefit from proceedings that they have not shown to have been party to.  I therefore uphold the last point in limine and the application has to fail.

The following order is therefore appropriate;

The application be and is hereby struck off the roll for being improperly before the Court.

Applicants be and are hereby ordered to pay costs of suit.

Tamuka Moyo Attorneys, applicants’ legal practitioners

Magwaliba & Kwirira, respondents’ legal practitioners