Broadbridge Investments v Mukudza & Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/398/2014
HARARE, 08 MAY 2014
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/398/2014

HARARE, 08 MAY 2014	    		  	            CASE NO. LC/H/904/12

AND 04 JULY 2014						         LC/H/577/12

In the matter between:-

BROADBRIDGE INVESTMENTS			Applicant

And

MUKUDZA & ORS						Respondents

Before Honourable E Muchawa, Judge

For Applicant		-	Advocate F. Mahere

For Respondent		-	M. Gwisai (Legal Practitioner)

MUCHAWA, J:

This matter is an application for rescission of an order granted in default by this court.

Applicant filed two appeals before this court, namely:

Interfresh Limited v Mukudza and Others LC/H/904/12 and

Broadbridge Investments (Pvt) Ltd v Mukudza and Others LC/H/577/12.

The two appeals were dismissed on the 15th August 2013 following an application made by respondent in terms of Rule 19 (3) (a) of the Labour Court Rules, 2006, in that applicant had not filed its heads of argument within fourteen days of receipt of respondent’s notices of response in respect of both appeals but about eleven months later.  It is that order that is sought to be rescinded.

The appeal in case LC/H/577/12 relates to the initial arbitral award which found in favour of respondents (hereinafter referred to as the main appeal) whilst LC/H/904/12 relates to the quantification award.

Respondent raised two preliminary points that require disposal first before I can consider whether the application meets the requirements for the granting of rescission of judgment.

The first issue is that applicant in this matter is called “Broadbridge Investments (Pvt) Ltd t/a as Wholesale Fruiterers”  The deponent to the founding affidavit deposed too as the Chief Executive Officer of “Broadbridge Investments (Pvt) Ltd t/a Wholesale Fruiterers.”

Respondent avers that applicant lacks locus standi as the respondents do not know this applicant “Broadbridge Investments (Pvt) Ltd”.  This is because, respondents claim, the party in the order they seek to rescind is “Interfresh Limited t/a Wholesale Fruiterers”.  This is the named used in the arbitral awards and in case LC/H/904/12.

It is further submitted that “Broadbridge Investments (Pvt) Ltd” is an entirely distinct legal entity from “Interfresh Limited”  It is respondent’s case that “Interfresh Limited” is not just a trade name but is a company duly incorporated as is “Broadbridge Investments (Pvt) Ltd”.  Without an application for joinder of “Broadbridge Investments (Pvt) Ltd,” respondent submits there is an incurable fatal defect in the application.

Further submissions by respondent on the issue are that as no evidence of the relationship between Applicant and “Interfresh Limited” has been given, they stand to suffer prejudice as they might fail to enforce their judgment if it turns out that applicant is a mere shelf company or has no means.

The applicant explained that applicant is and has always been a registered entity named “Broadbridge Investments” which trades inter changeably as Interfresh or Wholesale Fruiterers.  The use of Broadbridge Investments (Pvt) Ltd is said to be merely reverting to Applicant’s proper registered name instead of its trade name.  It was pointed out that in the main appeal LC/H/577/12, applicant had filed its appeal under the name of Broadbridge Investments (Pvt) Ltd t/a Wholesale Fruiterers.

I find it highly irregular that applicant has just chosen to revert to another name, which does not appear in any of the two arbitral awards which are the subject of the appeals before me.  No proper explanation has been given to explain this shift.  The respondents’ fear of getting a brutum fulmen as a judgment if applicant persists in the changed identity is well founded given that “Interfresh Ltd” is a registered company duly incorporated under the laws of this country with locus standii to institute proceedings in its name.

The supporting affidavit to this application is by one Lishon Chipango the Chief Executive Officer of Broadbridge Investments (Pvt) Ltd t/a Wholesale Fruiterers.  The proper employer party in the application for dismissal of appeals, which is sought to be rescinded is Interfresh Ltd t/a Wholesale Fruiterers.  That too is the proper party in the arbitral awards brought on appeal.

I consequently find that there is no proper applicant before me as the applicant lacks locus standi (see JMD Agro-Consult and Marketing (Pvt) Ltd v The Editor of the Herald Newspaper and The Herald Newspaper HH-61-2007).

The application is therefore void ab initio and invalid.  (See Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565)  I accordingly dismiss the application with costs.

DUBE, MANIKAI & HWACHA, Applicant’s legal practitioners

MUNYARADZI GWISAI, Respondent’s legal practitioners