Tandarike Chibade v National Spring Steel and General Engineering

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/192/24
HARARE, 27 FEBRUARY, 2024
CASE NO LC/H/282/23
25 APRIL 2024
TANDARIKE CHIBADE
APPELLANT
NATIONAL SPRING STEEL AND GENERAL ENGINEERING
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/192/24

HARARE, 27 FEBRUARY, 2024
CASE NO LC/H/282/23
25 APRIL 2024

TANDARIKE CHIBADE
APPELLANT

NATIONAL SPRING STEEL AND GENERAL ENGINEERING
RESPONDENT

Before the Honourable G. Musariiri, Judge:

For Appellant - Ms N. Matongwana, Unionist

For Respondent - Mr G. Mandizvidza, Director

MUSARIRI, J:

At the onset of oral argument in this Court, appellant raised 4 (four) points in limine which respondent opposed. The points shall be dealt with in turn.

1. That the Notice of Response was filed out of time:

The notice of appeal was served on respondent on 28 April 2023. Per Rule 19(2) of the Labour Court Rules, 2017 a Response was required within 10 (ten) days that is on or by 14 May 2023. The respondent filed its response on 24 May 2023.
 Appellant argued that the Response is improperly before Court as it was filed out of time and without seeking condonation by this Court. Respondent replied that the notice of appeal was served without attachments. They only managed to get all the documents from this Court on 3 May 2023. Then they sought assistance to file the response which they filed. On that basis respondent orally applied for condonation of late filing of their response. The Court notes that the delay in filing amounted to a week. Such short delay by a self-actor in these circumstances where they sought a complete appeal notice is condonable.

2. That the Response is defective for want of form:

Rule 19(2) requires that a Response be filed in form LC 2. Respondent used LC 2 and 3. The Court notes that it is only the notation “3” that is irregular. Otherwise, the body of the Response conforms to form LC 2. The point raised is therefore immaterial and pedantic.

3. That the deponent to the opposing affidavit was not properly authorised to represent respondent:

The appellant argued that as a corporate entity respondent can only act in this Court through its properly authorised officials. That authority is manifested by a resolution by its board of directors. The deponent to the impugned affidavit did not attach or refer to a resolution by respondent’s board. He relied on his word as Managing Director that he was authorised to act.

The applicable law was set out by Garwe JCC in the case of Dube v PSMAS 2019(3) ZLR(S) at Paragraph 38. A representative of a company is required to produce the resolution authorising him to act when he is challenged to do so. In casu appellant’s papers, including heads of argument, did not raise the point. It was only raised in oral argument. Having been thus ambushed, respondent deserves a chance to furnish the requisite resolution.


4. That the respondent’s heads of argument were filed out of time:

Appellant’s heads of argument were uploaded on the Court’s IECMS Platform on 7 June 2023. he argued that respondent was obliged to file their heads within 10 (ten) days per Rule 26(3). The rule requires heads of argument “where a respondent is to be represented by a legal practitioner or a representative at the hearing…” Respondent is not represented by a legal practitioner. It seeks to be represented **pro se** by its own official. The representative referenced by the rule is a professional representative in the form of a lawyer, trade union official or employers’ association agent. Respondent is not represented by such representative. Therefore, the obligation invoked by appellant does not apply.


Wherefore it is ordered that,

1. The late filing of respondent’s Response be and is hereby condoned;

2. The appellant’s 2\textsuperscript{nd} and 4\textsuperscript{th} points in limine be and are hereby dismissed;

3. The appellant’s 3\textsuperscript{rd} points in limine be and is hereby upheld so that; a) Respondent shall file a company resolution authorising its official to represent it, within 15 (fifteen) days of this order; and

   b) If respondent fails to comply with paragraph (a), the matter shall proceed as unopposed.

G. MUSARIRI
J-U-D-G-E
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