Shingirai Chitura v B. Mubataripi N.O. and The Avenues Clinic

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO. LC/H/65/23

HELD AT HARARE ON 29TH SEPTEMBER, 2022

CASE

JUDGMENT NO. LC/H/……/2022

CASE NO. LC/H/494/22

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/65/23

HELD AT HARARE ON 29TH SEPTEMBER, 2022 CASE NO.LC/H/494/22

AND 28 FEBRUARY , 2023

In the matter between:-

SHINGIRAI CHITURA APPLICANT

AND

B. MUBATARIPI N.O. 1ST RESPONDENT

AND

THE AVENUES CLINIC 2ND RESPONDENT

Before the Honourable Makamure, J.

For the Applicant : Ms T. Barangwe (Trade Unionist)

For the Respondent : Mr. G. Ndlovu (Legal Practitioner)

MAKAMURE J.

INTRODUCTION

This is a judgment on a preliminary point raised on behalf of both respondents. The background of the matter is that the applicant was employed by an entity known as Medical Investments Limited as a Clerk. This was in terms of a Fixed Term Contract which was signed on 19 December 2007. He was charged with

fraud. Following disciplinary proceedings he was dismissed from employment. His internal appeal was unsuccessful. He was aggrieved by that outcome.

He has filed an application for review. It is against this application that a preliminary issue been raised.

THE PRELIMINARY ISSUE

The preliminary issue raised on behalf of the respondent is that the application is fatally defective because the 2nd respondent is non-existent. It was submitted that the citation is a nullity and cannot be amended. It is the prayer on behalf of the first and 2nd respondents that for this reason the matter be struck off the roll. The following cases are some of the authorities cited in support of the preliminary point:

John v Delta Beverages SC 40/17; Gariya Safaris vs Van Wyk 1996 (2) ZLR 246 (H); Mhanyami Fishing and Transport Cooperative Society Limited and Others v The Director General Parks and Wildlife Management Authority N.O and Others HH 92/11; Chituku and Others v IDBZ and Others HH 414/21.

In response it was argued on behalf of the applicant that the position is settled in our jurisdiction that a preliminary point must be taken if it is meritable and has the effect of disposing of the matter without going to the merits. The following authorities were referred to in support of this submission:

Zim Cane Farmers Association v Mutamba HH 290/17; Telecel Zimbabwe (Pvt) Ltd vs Postal Telecommunication, Regulatory Authorirty of Zimbabwe (POTRAZ) and Others HH 446/15; Premier Finance Group Ltd v Jennifer Makasi Shava LC/H/129/2009 John L Nyampila v Zimbabwe Revenue Authority LC/H/167/2008.

The applicant also relied on authorities from this court to the effect that the Labour Court is a court which is there to dispense simple cheap justice expeditiously; that strict rules of evidence should not be applied and that the Court is concerned with substantial justice. That is correct. However the question remains, has the correct 2nd respondent been identified?. As already noted the applicant was employed by Medical Investments Limited and not by the Avenues Clinic. This is reflected on the contract of employment and this is not disputed. The Avenues Clinic is therefore not the 2nd respondent.

It is correct to say that the position in this jurisdiction is that a preliminary point should be taken when it is meritable and may dispose of the matter without having to consider the merits (Telecel Zimbabwe Pvt Ltd v Postal Telecommunication) (above). The question to ask therefore is, is there a legal entity by the name Avenues Clinic? In view of the authorities, there is none. I think that it is not disputed in Harare that there is a place generally known as the Avenues Clinic. While this may be so, Mr Ndlovu who appeared on behalf of the respondents argued that the Avenues Clinic is a building and not a legal entity. Further the argument continued, should the court issue an order, such an order will be enforceable.

THE LAW

In Fadzai John v Delta Beverages SC 40/17 the respondent was cited as “Delta Beverages Limited” instead of Delta Beverages (Private) Limited. The Supreme court quoted with approval the case of Gariya Safaris (Pvt) Ltd vs Van Wyk 1996 (2) ZLR 246 (H) where the court stated that:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio”.

CONCLUSION

Now to answer the applicant’s concern, is the preliminary point meritable? One way of looking at it is, if an order is made against ‘The Avenues Clinic’ will it be enforceable?. The answer is “No” it will not be enforceable. This means that the preliminary point is meritable. It would be a futile exercise to proceed with a matter where one of the defendants is a non-existent entity. Further and as the record shows, the 1st defendant is sued in his official capacity. That official capacity derives from the legal entity known as Medical Investments Limited.

This means that even if an order were granted, such an order would not be enforceable against the 2nd defendant. As matters stand the 2nd defendant has not been identified. It is the 2nd defendant which employs 1st defendant. 1st defendant is sued in his official capacity. As such no liability lies against him. I am aware of what the Supreme Court held in the case of Edmore Mapondera and 55 Others vs Freda Rebecca Gold Mine Holdings Limited SC 81/22 where there was miscitation of a party in a situation where the affected litigant had no control over the drafting of the summons. In that case the affected party could not be blamed for the miscitation. In the present matter the applicant knew the entity which employed him. This said in view of the contract of employment he entered with Medical Investments Limited and NOT with the Avenues Clinic.

What this means it that there is merit in the preliminary point raised. The preliminary point is accordingly upheld.

In the result it is ordered that:

The application for review be and is hereby struck off the roll with costs.

Gill, Godlonton & Gerrans - 1st and 2nd Respondents’ Legal Practitioners