Chitepo Secondary School v Joseph Mukushwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/129/16
HELD AT HARARE ON 16th FEBRUARY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/129/16

HELD AT HARARE ON 16th FEBRUARY, 2016     CASE NO. LC/H/522/15

AND 4TH MARCH, 2016

In the matter between:-

CHITEPO SECONDARY SCHOOL					    Appellant

And

JOSEPH MUKUSHWA							    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr T. Marume (Legal Practitioner)

Respondent	:	In person

MHURI J.

This appeal proceeded in terms of Rule 22 of this Court’s Rules Statutory Instrument 59 of 2006 after the Court found that Respondent had not shown good cause why he did not file his response to the appeal as required in Rule 15.

This is an appeal against an arbitral award issued against Appellant wherein it was ordered to reinstate Respondent with effect from 7th December, 2013 or pay him damages if reinstatement was no longer possible.

Appellant’s first of the four grounds which would dispose of the appeal if found to have merit was that,

“The Arbitrator aquo erred at law in proceeding to award against Appellant which at law is not a legal persona and is not capable of being sued.  To that end the award by the Arbitrator is a legal nullity.”

It was Appellant’s submission in support of this ground, that Appellant, Chitepo Secondary School is not a legal entity.  Appellant’s Legal Practitioner referred to the Education Act (Chapter  25:04) and submitted that in terms of Section 9 schools are classified into two namely, Government and Non-Governmental Schools.  Appellant is a government school and no legal personality is conferred on a government school.  Its actions are represented by the Minister and in casu, the Minister of Higher and Tertiary Education.

Section 9(1) reads:

“9 Classification of schools

Schools in Zimbabwe shall be classified –

As either Government Schools or non-Government Schools; and

………………………”

Section 3 of the State Liabilities Act [Chapter 8:14] is very clear on who should be cited in circumstances such as this one.

It reads:-

“3.	Proceedings to be taken against Minister of department concerned.

In any action or other proceedings which are instituted by virtue of section two, the Plaintiff, the Applicant  or the petitioner, as the case may be, may make the Minister to whom the headship of the Ministry or department concerned has been assigned nominal Defendant or Respondent.”

See:-

FLOSSY MACHAYA

vs

MINISTRY OF PRIMARY AND SECONDARY EDUCATION LC/H/551/14

It is also a trite position of the law that a non-legal persona lacks the capacity to sue or be sued.  The under mentioned cases are instructive on this principle

C.T. BOLTS (PRIVATE) LIMITED

vs

WORKERS COMMITTEE SC 16/12

ZIMBABWE REVENUE AUTHORITY

vs

CHENAI NYAGUSE & 12 OTHERS LC/H/128/14

I find therefore in view of the above, that Appellant is not a legal persona and consequently the proceedings against it are a nullity.

Filed of record is as contract of employment which clearly shows who Respondent’s employer was.  The form reads, in the relevant portion

”CONTRACT FORM FOR S.D.A. WORKERS

Contract of employment made and entered into between Chitepo Secondary School Development Association herein–after called the employer and JOSEPH MUKUSHWA herein–after called the contract worker ….”

This form clearly shows that the School Development Association was Respondent’s employer who should have been cited by Respondent when he instituted his proceedings.

If the Court had found that Appellant was a legal persona, still the proceedings would have suffered the same fate as Appellant was not the employer.

In the result, having found that the Appellant was not a legal persona and the entire proceedings a nullity, I find it unnecessary to deal with the rest of the grounds of appeal.

Consequently, it is ordered that the appeal be and is hereby allowed.  The arbitral proceedings and all the preceding proceedings instituted against Appellant are hereby nullified.

Matsikidze & Mucheche – Appellant’s legal practitioners