Cottzim Ginnery v J. Nyamapfeka and 6 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/695/14
HARARE, ON 8th OCTOBER, 2014
CASE NO. LC/H/313/14
AND 24 TH
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IN THE LABOUR COURT OF ZIMBABWE                               JUDGMENT NO. LC/H/695/14

HARARE, ON 8th OCTOBER, 2014			 	            CASE NO. LC/H/313/14 AND 24TH OCTOBER, 2014						X REF. LC/APP/H/49/14

In the matter between

COTTZIM GINNERY				–	APPELLANT

And

J. NYAMAPFEKA AND 6 OTHERS		-	RESPONDENTS

Before The Honourable F.C. Maxwell, J

For Appellant :	Mr R. Zimudzi (Legal Practitioner)

For Respondent:	Mike Chirenga

MAXWELL J,

This is an appeal against an arbitral award in favour of the Respondents. The Respondents were employed by Myramah Farming (Pvt) Ltd t/a Cottzim from September 2009 to September 2012. Respondents’ services were terminated. They approached the Labour Officer for conciliation on a dispute of unlawful termination by Cottzim. The parties reached an agreement but Appellant reneged on it. The matter was referred to arbitration. The Arbitrator put the terms of the agreement before the Labour Officer as the award.

The Appellant was aggrieved and noted an appeal in this Court on 11th April 2014. The grounds of appeal are:

The Honourable Arbitrator erred at law by failing to consider that the Respondents were employed by Myramah Farming (Pvt) Ltd and not the Appellant.

The Honourable Arbitrator erred at law and fact by failing to consider that only four Respondents were present and hand no mandate to represent the other two Respondents.

The Honourable Arbitrator erred at law and fact by merely rubber-stamping the Respondents’ exaggerated claims without any justification.

The Honourable Arbitrator erred at law and fact by failing to interpret the settlement agreement and its binding nature.

Respondents responded by asserting that the contract of employment explains the use of Cottzim as the employer. They also alleged that the absence of the other two Respondents did not have a bearing on the arbitration award. The Respondents further claim that Appellant was given time to avail what it termed correct figures but did not do so.

At the hearing of the matter a point in limine was raised to the effect that the arbitral proceedings were null and void as the Respondents had cited a non-existent party. It was submitted that there was no legal persona known as Cottzim. Furthermore Respondents had been employed by Myrammah Farming (Pvt) Ltd. which is now under judicial management.

Respondents submitted that the point in limine has no merit as the contracts of employment indicate that they were employed by Cottzim. Respondents indicated further that proceedings before the Arbitrator were defended in that name. Respondents also produced a schedule from the    National Social Security Authority listing employees of Cottzim as proof that Cottzim was the employer.

The issue of whether or not a company has capacity to sue or to be sued is a legal question. Only companies registered as legal persona have that capacity. As stated in the case of Chirumhanzi Rural District Council v Trvestroom Farm H-H-277-12 such companies carry the appellation Private Limited or Limited. In casu the Appellant carries no such appellation. Resultantly there was no Respondent before the Arbitrator. There is no legal person answering to the name Cottzim and the proceedings aquo are therefore null and void ab initio see Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H).

Accordingly the point in limine succeeds and the proceedings before the Arbitrator are declared null and void ab initio.

Sachikonye-Ushe - Appellant’s legal practitioners