Willard Captain AND 7 Others V Nagle House School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/203/2021
HARARE, 25 OCTOBER 2021 &
CASE NO LC/H/117/21
5 NOVEMBER 2021
---------


IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/203/2021

HARARE, 25 OCTOBER  2021 &			 CASE NO LC/H/117/21

5  NOVEMBER  2021

In the matter between:-

WILLARD CAPTAIN AND 7 OTHERS		APPLICANTS

AND

NAGLE HOUSE SCHOOL				RESPONDENT

Before the Honourable Kudya  J

For the Applicants		A. Marara (Legal Practitioner)

For the Respondent		Mafongoya (Legal Practitioner)

KUDYA, J:

This matter was set down as an application for review at the instance of the applicant employees in a labour dispute pitting them and the respondent employer.  The employees raised a point in limine that there was no legal persona before the court in the form of the cited respondent.

The employer in response was adamant that it is a legal persona and if the court were to conclude that it was not it then prayed that the review application be consequently struck off the roll as being bad at law it being process against a party not legally recognisable. It is only this point in limine and the subsequent striking off plea that is addressed by this judgment.

It is the employee’s argument that the description of the respondent as Nagle House School is inconsistent with the correct definition of a legal person. They argued therefore	that all that the school did in the name of Nagle House which at law is not recognisable as a party at law was thus null and void.  They referred the court to page 25 of the record where the school was seeking to be exempted from paying the employees dues under Sec 12 (c) of the Labour Act.

In the result they prayed that the point in limine be dismissed for lack of merit and that they be adjudged to have been involved in a labour dispute with a nullity at law.

In reaction to the point the school indicated that in its view it was correctly cited as such. It referred the court to page 5 of the record where in paragraph 52 of the Founding Affidavit the school is described as having capacity to sue and be sued. It reasoned further that the employees were shooting themselves in the foot by advancing the argument that they were suing a legally non existent entity.

It relied on section 9 and section 15 of the Education Act to support its argument that on account of what section 9 and section 15 of the Education Act says it verily believed that it was properly before the court.  It reasoned therefore that the point had to be dismissed and that the court entertain its own points in limine which it had also brought against the employees’. In the result it prayed that the point in limine vs its locus standi be dismissed.

In their right of final audience the employees interpreted the 2 sections referred to by the employer.  In summary they submitted that a section deals with classification of schools whilst section 15 deals with registration of non government schools.  It quoted to that end the case of  Ncube  vs St Bernard School where the only issue at stake was the question of legal status. The employees argued that reference to section 15 which deals with status of a schools is neither here nor there.  They excused the reference in paragraph 5.2 of the founding affidavit as being inconsistent with the rest of the averments in the affidavit. In their view any inconsistency therefore needed to be construed in favour of excusing the irregular reference   See  Ackerman  v Dorken  SC -70-2-18.

In conclusion the emphasis relief on the case of C.T. Bolts  Pvt Ltd  v Workers Committee  SC-16-12. The employer reacted by arguing that the judgement in Dorken (Supra) simply put meant you do not amend an affidavit by giving evidence from the bar. Rather the old adage on application stands/falls on the basis of the founding affidavit, subsists.

Following submission from the parties representatives the matter resumed for the court to hand down its decision on the point in limine. At this point in time the school persisted that it had locus standi but if the court found otherwise the prayer was that the matter be struck off the roll on account of the absence of a respondent properly clothed with locus standi.

On the other hand the employees persisted that the point be allowed and that the review be granted on the basis of the points in limine and that the court orders their reinstatement.  This was on the basis that a nullity begets a nullity See McFoy v United Africa Company 1961 AllER 1169(PC).

It is settled law that for a matter to be said to be properly before the court it need to have parties properly and legally recognisable at law (CT Bolts) Supra In fact such is a point of law capable of being taken  at any stage of the proceedings and capable of disposing the matter in full.  See Easterbrooke v Sable Chemicals  SC-18-10 for what a point of law is.

The court is in agreement with the employer that a school as cited by the employee in the papers indeed is not a legal person See Dzova v Minister of Edcuation  SC-91-06 and for that reason the point should succeed. It is however the success of the point that brings into issue the subject of whether the matter should be struck off or the court orders reinstatement.  It is clear from CT Bolts (Supra) that nothing arises from irregularly cited parties.  The nullity principle (McFoy) cannot be overemphasised. (my underlining)

The court is therefore persuaded that the school is  no legal person. To that extent the point succeeds.  Having succeeded however it means whatever WAS said to be before the court is not it so the matter has to be struck off the roll.

IT IS ORDERED THAT

The point in limine about the status of the respondent school being with foundation it be and hereby succeeds.  The application for review being based on a party without locus standi it be and is hereby struck off the roll.  Each party bears own costs.

Mutangadura and Associates, Applicant’s Legal Practitioners

Mafongoya  and Matapura  Law Practice, Respondent’s Legal Practitioners