Air Zimbabwe Holdings Private Limited v Patience Madambi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/825/16
HELD AT HARARE ON 12TH OCTOBER, 2016
CASE NO. LC/H/APP/716/16
AND 30 DECEMBER, 2016
JUDGMENT NO. LC/H/825/16
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/825/16

HELD AT HARARE ON 12TH OCTOBER, 2016  CASE NO. LC/H/APP/716/16

AND 30 DECEMBER, 2016

In the matter between:-

AIR ZIMBABWE HOLDINGS PRIVATE LIMITED		Appellant

AND

PATIENCE MADAMBI							Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr A. T. Muza (Legal Practitioner)

For Respondent	:	Mr S. Zvinavakobvu (Legal Practitioner)

MHURI J.

On the 11th January 2016 the arbitrator Honourable Sengwe issued an award which was in favour of the Respondent.

In terms of Rule 15 (1) of the Labour Court Rules, 2006 Statutory Instrument 59/2006, Applicant had 21 days from the date it received the award to note its appeal with this Court, if felt aggrieved by the award.

Applicant did not comply with the above Rule hence this application for condonation of late noting of appeal.

In support of this application, Applicant’s Acting Human Resources Manager T. Tiwonge  Mukondya deposed to and filed a founding affidavit. She states in paragraph 1 of the affidavit that she is duly authorised to depose to the affidavit on behalf of the Applicant.

In her response to the application, Respondent took issue with Mukondya’s authority to depose to an affidavit on behalf of Applicant.

At the hearing of this application both parties’ Legal Practitioners raised preliminary issues, which if upheld will dispose of this application without going into the merits.

Applicant’s points in limine were on

the absence of Respondent at the hearing,

and

notice of response by Respondent.

Respondent’s point in limine was on

the lack of authority on the part of Mukondya to depose to a founding affidavit.

I will deal first with Applicant’s points.

It was Applicant’s submission that since Respondent was not in attendance, the application must be granted as a default judgment in terms of Rule 30. A Legal Practitioner is not a party to the proceedings but assists a party in the proceedings and so a party is to be present until excused by the Court.

Applicant also submitted that there is no response to its application as the response was not on affidavit. The application must therefore proceed unopposed and be granted.

I find Applicant’s points in limine to be totally without merit.

Section 92 of the Labour Act (Cap: 28:01) provides;

“Representation of parties

A party to a matter before the Labour Court may appear in person or represented and appear by-

a legal practitioner registered in terms of the Legal Practitioners act [Chapter 27:07]; or

an official employee of a registered trade union or employers organisation of which the party is a member”.

It goes without saying therefore that a party can either appear in person or be represented by a Legal Practitioner or Union Representative.

Rule 30 provides for a situation where a party or witness fails to appear.

It states	“Where a party or witness fails to appear at a hearing, the Court may, according to the nature of the case, or as the justice of the case requires-

proceed with the hearing on the merits, or

postpone the matter; or

upon application by the party in attendance, enter default judgment”.

In casu, Respondent’s Legal Practitioner was in attendance to represent her in these proceedings. It cannot even by any stretch of imagination be said she was in default. The default envisaged in Rule 30 is where the party, whether in person or represented by a Legal Practitioner or union representative is not in attendance at the hearing of the proceedings. It is under such a scenario that the party who is in attendance can apply for a default judgment in terms of subrule (c).

Applicant’s interpretation of this Rule is wrong and to that end this point in limine is dismissed.

Rule 14 (2)(a) provides for the action a Respondent is to take after being given notice to file a response to an application. The Respondent is to complete in three copies of his response to the application in Part II of Form LC2.

Part II of Form LC2 provides

DETAILS OF RESPONSE

“I………………………………….name of Respondent

of…………………………………address of Respondent

The following in brief is my response to the application / appeal

……………………………………………………………………………………

……………………………………………………………………………………

……………………………………………………………………………………

……………………………………………………………………………………

Name and address of Legal Practitioner or employee/employee representative of the Respondent, if any

……………………………………………………………………….”

Nowhere in this Rule or Form is it stated that the response shall be in affidavit form.

On the 29th July 2016 Respondent, through her Legal Practitioner  complied with the Rule and duly filed her response as required in Part II of Form LC2.

The point in limine raised by Applicant in this regard has no legal foundation. The Applicant should not import the procedures followed in the High Court to the Labour Court as these are totally different.

The point is therefore dismissed.

I now turn to the point in limine raised by Respondent. Respondent submitted that the application is fatally defective for lack of authority in the form of a Board Resolution authorising Mukondya to depose to the founding affidavit. Applicant being a corporate body, its existence is separate from its shareholders and as such a person who purports to act on its behalf must do so with authority -which is a board resolution.

Whilst Respondent has correctly stated the position of the law, I am however not persuaded that the lack of a board resolution nullifies this application. The deponent, Ms Mukondya states in her affidavit that she is authorised to depose to the affidavit on behalf of the Applicant.

I am persuaded by the cases cited by applicants’ Legal Practitioner in his heads of argument and the remarks made therein that the form of proof (board resolution) is not necessary in every case as each case is to be considered on its own merits.

“Where the deponent of an affidavit states that he has authority of the company to represent it, there is no reason for the Court to disbelieve this unless it is shown evidence to the contrary. Where no such contrary evidence is produced the omission of a company resolution cannot be fatal to the application”.

Per MATHONSI J

AFRICAN BANKING CORPORATION OF ZIMBABWE T/A BANCABC

V

PWC MOTORS PRIVATE LIMITED & OTHERS HH 123-2013

In light of the above, the point in limine cannot be upheld.

Having considered the parties points in limine and all having found no favour with this Court, I will order that each party bears its own costs.

Consequently it is ordered that the points in limine raised by both parties, be and are hereby dismissed.

Each party is to bear its own costs.

The Registrar is directed to reset the application for hearing on the merits.

Mawere & Sibanda		 	- Appellant’s Legal Practitioners

Zvinavakobvu Law Chambers	- Respondent’s Legal Practitioners