Surface Investments v Morgan Chiname & 30 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/244/14
HELD AT HARARE 12TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/244/14

HELD AT HARARE 12TH FEBRUARY 2014		CASE NO LC/H/566/12

& 25TH APRIL 2014

In the matter between:-

SURFACE INVESTMENTS				Appellant

And

MORGAN CHINAME & 30 OTHERS		Respondents

Before The Honourable R. F. Manyangadze, Judge

For Appellant		S Takundwa (Legal Practitioner)

For Respondents		P Chakabuda (Trade Unionist)

MANYANGADZE, J:

At the hearing of this matter, appellant raised a point in limine,  to the effect that the Trade Union representing the respondents cannot do so without showing proof of its authority to represent the respondents.

I reserved judgment on the point in limine, and directed that the parties file supplementary Heads of Argument covering that aspect i.e. the Trade Union’s locus standi in judicio.  The parties duly filed their supplementary Heads of Argument.

The appellant avers that the Union’s constitution must specifically empower it to represent its members in legal proceedings.  In the absence of such provision in the constitution, the union will be acting ultra vires its constitution.  The proceedings in which it participates will consequently be fatally defective.  In this regard, appellant referred to the cases of Mall (Cape) Pty Ltd v Merino Ko – operasie BPK  1957 (2) SA 347, Air Zimbabwe Corporation and Others v The Zimbabwe Revenue Authority HH 96/03, and Zimbabwe Banking Corporation Ltd v Trust Finance Ltd and Another  HH 130/06, among other cases.

The critical issue in this case would be the Union’s constitution.  The respondents contended that their union, which the Zimbabwe Food Beverages and Allied Workers Union (the Union) is a duly registered union in terms of section 28 (1) of the Labour Act [Chapter 28:01].   The respondents submitted a copy of the union’s Certificate of Registration dated 4 April 2006, and its constitution.

Section 4.1 establishes the union as a body corporate.

Section 5.6 empowers the union to provide legal assistance to its members.  It reads:

“To provide, when deemed necessary, legal assistance to members on matters related to or incidental to their employment or any other such matters as the National Executive Committee may deem necessary.”

Further to that section 5:14 (iv) specifically provides:

“To make representations to a determining authority, or the Labour Court.”

It is clear from these provisions of the constitution, that the union is empowered to represent its members in legal proceedings, which include the labour dispute before this court.

Another issue which appellant raised is whether Mr P Chakabuda, the union representative who appeared in court, had authority to so appear.

Mr Chakabuda, together with the constitution and certificate of registration, also submitted a letter from the union, dated 12 February 2014, addressed to the Registrar of this Court.  The letter confirms that he is an officer of the union, whose duties include representing members of the union before a determining authority or the Labour Court.

The cases cited by appellant viz Air Zimbabwe and Zimbabwe Banking Corporation Ltd supra, actually strengthen respondents’ position. In both cases, the South African case of Mall (Cape) Pty Ltd supra was referred to with approval.  In particular, the following passage was cited;

“The best evidence that the proceedings have been properly authorised would be provided by an affidavit made by an official of the company annexing a copy of the resolution but 1 do not consider that that form of proof is necessary in every case:  Each case must be considered on its own merits and the court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorised person on its behalf.  Where as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the Court, then I consider that a minimum of evidence will be required from the applicant.”

Similarly, in casu, appellant has offered no evidence at all to suggest that the union representative is not properly before the court.  Thus, a minimum of evidence will be required from the respondents, authenticating their union’s locus standi.

In fact, during submissions in court, appellant’s legal practitioner pointed out he has known Mr Ckakabuda for a long time.  The legal practitioner further indicated that he did not doubt, or question Mr Ckakabuda’s capacity to represent union members,  having dealt with him in labour proceedings for a long time.  As I understood it, the issue before the court was whether the Union’s constitution empowered its officials to represent the union’s members in legal proceedings.  It was not whether Mr Chakabuda himself had the requisite authority, as an official of the union, to represent it in court.

The issue as to whether the union’s constitution empowered Mr Chakabuda to represent the respondents has been disposed of, by simply looking at the clear provisions of the constitution conferring that power.  The ancillary issue, of whether or not Mr Chakabuda himself is specifically authorised to appear on behalf of the Union, was not raised at the hearing of the matter.  It emerged from appellant’s supplementary Heads of Argument.

As already indicated, it was accepted, by the appellant’s legal practitioner, that Mr Chakabuda had capacity to represent the union.  There was a long history of such representation, which appellant was aware of and had never challenged.  That, coupled with the letter from the union, places him on a firm footing as a duly authorised union representative.  In my view, it constitutes the minimum evidence required to establish his authority to represent the union, in the absence of evidence to the contrary.

In the circumstances, I am unable to uphold appellant’s point in limine.

It is accordingly ordered that

The point in limine raised by appellant be and is hereby dismissed

The Registrar is directed to set down the main appeal on the earliest available date.

Each party shall bear its own costs.

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Manyangadze J.