General Engineers, Engineering Maintenance AND CIVIL Engineering Workers Union V Steelbrands (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/164/24
HARARE, 22 JANUARY, 2024
CASE NO LC/H/868/23
11 APRIL 2024
GENERAL ENGINEERS, ENGINEERING MAINTENANCE
AND CIVIL ENGINEERING WORKERS UNION
APPELLANT
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GENERAL ENGINEERS, ENGINEERING MAINTENANCE AND CIVIL ENGINEERING WORKERS UNION

STEELBRANDS (PRIVATE) LIMITED

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant - Ms N. Matongwana, Unionist

For Respondent - Mr C. Mushiwokufa, Manager

MUSARIRI, J:

At the onset of oral argument in this Court appellant raised 4 (four) points in limine which respondent opposed. The points shall be dealt with ad seriatim.


1. That the Notice of Response is fatally defective for want of an opposing affidavit:

The impugned Notice of Response was filed in this Court on the 9th November 2023. It is signed on behalf of respondent but it is not in the form of an affidavit. Rule 19 (2)a of the **Labour Court** Rules S.I. 150/17 requires a response to complete a notice of response in Form LC 2. The said Form LC 2 reads;

“Take notice that the Respondent intends to oppose the appeal. Further take notice that the attached affidavit shall be used in support of the respondent’s case.”

It appears that a respondent is required to attach an affidavit to his notice of response. Respondent’s claim that it was advised by an official in the Court’s registry that the affidavit is unnecessary does not assist him. The Court is guided by its Rules and not the **ipse dixit** of its officials.

2. That the respondent is barred for failure to file its heads of argument:

Respondent did not file separate heads of argument. However, it argued that its notice of response is its argument. Indeed, its contents are worded in the style of an argument. On that basis the Court per Rule 32 is prepared to take the response as respondent’s heads of argument.

3. That respondent’s representative (Mushiwokufa) lacks the necessary authority to act for respondent:

As a corporate entity, respondent can only act through the duly authorised officials. This position was clearly stated in the case of;


Per Garwe JCC at Paragraph 38

“…He (representative) must produce a resolution of the board of that entity which confirms that the board is indeed aware of the proceedings and that it has given such person the authority to act in the stead of the entity. I stress that the need to produce such proof is necessary only in those cases where the authority of the deponent is put in issue. This represents the current state of the law in this country.”

Mushiwokufa produced a letter signed by respondent’s General Manager authorising him to act in this matter. However, such letter does not amount to a resolution by respondent’s board of directors. The Dube case makes it clear that nothing short of a board resolution will suffice.

4. That the Notice of Response is defective for want of form:

This is a variation of the $1^{st}$ point. It is clear that respondent did not use the requisite Form LC 2 as the format for its notice of response.

Conclusion

Save for the $2^{nd}$ point, the points in limine have merit and must prevail. There being no valid response, the matter shall be dealt with as unopposed as per Rule 29(b) (ii).


Wherefore it is ordered that,

1. Appellant’s points in limine be and are hereby upheld and the notice of response is struck off the record as being fatally defective;

2. The appeal be and is hereby allowed; and

3. The respondent shall remit appellant’s union dues of its actual members.

G. MUSARIRI
J-U-D-G-E
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