Zimbabwe Urban Council Workers Union v Municipality of Redcliff

### Preamble
1
HB 202/20
HC 2434/17
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ZIMBABWE URBAN COUNCIL WORKERS UNION

Versus

MUNICIPLAITY OF REDCLIFF

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 9 JUNE & 1 OCTOBER 2020

Opposed Application

A.  Chinamatira, for the applicant

Advocate P. Dube for the respondent

MOYO J:	This is an appeal for the registration of an arbitral award.  The applicant is a union.  The founding affidavit was sworn to by a Mr Mathias Mandaza and it refers to the award that was made in favour of the union on 16 December 2015, wherein the respondent was ordered to pay a sum ofUS$1 116 503,50.  The applicant avers that the award remains unsatisfied as respondent has failed, neglected and or refused to comply with the arbitral award.

The respondent has raised a point in limine to the effect that applicant is a legal persona with a constitution which provides for how and who has authority to institute legal proceedings on its behalf.  Respondent further submits that the application is incurably defective.

Applicant did not file an answering affidavit to address this point but at the hearing of the matter, applicant’s counsel submitted that the issue of authority to institute the legal proceedings was neither here nor there as section 98 (14) of the Labour Act requires mere submission by an interested party and that the deponent to the applicant’s founding affidavit is also a beneficiary of the same award hence he is an interested party.  Respondent’s counsel submitted that the matter should be struck off the roll as it was not properly before the court for the simple reason that it was necessary to institute any proceedings by the union in terms of its constitution and that in fact same should have been attached for the court to satisfy itself that the rightful party is before it with the requisite authority per the constitution.

Respondent referred to the Supreme Court case of National Air Workers Union and Another vs Air Zimbabwe Holdings (Pvt) Ltd and Others SC-14-15.  In that case, the Supreme Court held that:

“It seems to me that Mr Mucheche misconceived the basis of the court a quo’s decision.  The finding of the court a quo was not that the appellants as trade unions could not sue on behalf o their membership but rather that the deponents had not established that they had authority either from the appellants or their membership to bring these proceedings.  A reading of the appellants’ founding affidavit and the evidence before the court a quo cannot possibly justify any other conclusion.”

In essence the Supreme Court stated that the deponents must establish their authority to sue on behalf of the union or its members.  The founding affidavit must canvass this point. The founding affidavit before me does not do so.  Neither was an answering affidavit filed to address this point.  The Supreme Court went further to state that:

“Further, in terms of section 29 of the Labour Act (Chapter 28:01), a registered union acts in terms of its constitution.  It is the constitution which must make provision regarding the persons authorized to institute proceedings on its behalf and the manner in which such authority is to be given.  Because constitutions of trade unions differ, it is important to refer to the constitution in each case in order to determine whether authority to institute or defend proceedings has been properly granted.  The appellants placed no reliance on the constitution nor did they attach a copy thereof to the application.”

In essence the Supreme Court stated that the constitution of a union is critical in its institution of court proceedings per section 29 of the Labour Act (supra) as it usually dictates who has authority to do so.  The Supreme Court also concluded that therefore it is important to refer to the constitution in each case in order to determine the crucial aspect of authority to institute court proceedings.  In the absence of any averments in the founding affidavit and how Mr Mandaza was authorized to act on behalf of the applicant and in the absence of a copy of the applicant’s constitution in support of Mr Mandaza’s representation, it becomes difficult to find that the applicant is properly before me in light of the judgment of the Supreme Court referred to herein.  It is for these reasons that I find that Mr Mandaza’s authority to represent the union, having been challenged by the respondent in terms of the law applicable, thereto, has not been established in light of the required criteria per the cited Supreme Court judgment.

I would therefore uphold the point in limine raised by the respondent.  I accordingly make the following order:

The application` is struck off the roll with costs.

Mavhiringidze & Mashanyare, applicant’s legal practitioners

Wilmot & Bennett, respondent’s legal practitioners