Golden Valley Mine v Charles Msimanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/332/2024
HARARE, 12 JULY 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 12 JULY 2024

08 AUGUST 2024

JUDGMENT NO LC/H/ 332/2024 CASE NO LC/H/529/2024

GOLDEN VALLEY MINE	APPLICANT

CHARLES MSIMANGA	RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-Mr BS Ziwa, Attorney

For Respondent	- Mr G. Ncube, Attorney

MUSARIRI, J:

Applicant applied to this Court for condonation of a belated application for leave to appeal to the Supreme Court. The application was made in terms of Rule 14 as read with Rule 32 of the Labour Court Rules, 2017. Respondent opposed the application.

At the onset of oral argument respondent raised three (3) points in limine which shall be dealt with in turn.

A That the draft grounds of appeal do not raise questions of law;

The impugned grounds read as follows

“1. The court a quo erred at law and misdirected itself by allowing the appeal on a basis that did not form part of the grounds of appeal that was before it, in particular, that

the Appellant should have appealed against the verdict of innocent, and

the reasons for dismissing the Respondent were sketchy and inadequate,

2. The court a quo erred and misdirected itself by failing to deal with the ground of appeal that was before it whose question was whether or not there was sufficient evidence proving that the Respondent had committed the misconduct he was charged with which the Appeals Authority relied on in up-holding the verdict of guilty and dismissal penalty.”

The respondent’s 1st ground of appeal to this Court read in part

“a) There was no evidence led that proved that the appellant’s exercise of discretion the

disciplinary hearing of 31st October 2022 amounted to misconduct.”

This Court ruled on that ground as follows

“The record of the disciplinary proceedings which appellant presided over was not placed before this Court. It is not clear what exactly was the evidence led in those proceedings. The employer made much about CCTV footage relied on. The sketchy details of the video set out in the minutes above do not give a clear picture of what was shown. It appears that the employer strongly believes that the evidence should have led to a guilty verdict. Whether that is correct or not, this Court is not in a position to determine in the absence of the relevant record.”

In other words, the Court found that there was no evidence of guilt as pleaded by respondent (employee). Therefore, the Court dealt with the grounds before it contrary to applicant’s averment.

The draft 2nd ground of appeal is but an iteration of the 1st ground. It states this Court failed to determine the questions of sufficiency of evidence. As shown in the excerpt from the judgement above, this Court dealt with and ruled on that very issue.

B That the application is a nullity because the deponent to the founding affidavit lacks  authority to act in the matter

The deponent, Alen Nani, deposed that

“A. I am a male adult, and the Applicant’s Human Resources Manager. I am duly authorised to

depose to this affidavit on behalf of the Applicant,

B. The facts to which I depose herein are within my personal knowledge …”

Respondent argued that the deponent should have attached a resolution by applicant’s board of

directors authorising him to act. Applicant countered through its heads of argument thus

“19. It is submitted that the deponent to the Founding Affidavit was authorised to depose to the Founding Affidavit on behalf of the Applicant.

20. In any event, the production of a company resolution as proof of authority of the deponent

is not necessary in every case.”

The Law on this point was settled in the case of

Dube v PSMAS 2019(3) ZLR 589(S)

Per Garwe JCC at 598 at Para 38

“…a person who represents a legal entity, when challenged, must show that he

is duly authorised to represent the entity. His mere claim that by virtue of the position he holds in such an entity he is duly authorised to represent the entity is not sufficient.  He 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.”

Clearly applicant was misguided in arguing that the requisite resolution is unnecessary. It was challenged on this point in respondent’s opposing affidavit filed on 6 June 2024. Instead of dealing with challenge there and then, applicant took the sanguine position that it was not necessary to file the resolution as stated in its heads filed on 13 June 2024. In oral argument applicant sought to argue in the alternative that the Court should condone its oversight in terms of the Court’s Rules. That argument is also misguided. Once it is found that the deponent failed to prove his authority to institute the application it follows that the  application is a nullity. In other words, there are no valid proceedings in which this Court can authorise departure from any of its rules.

C That the founding affidavit is fatally defective because of absence of the date of its  commissioning.

In light of the Court’s take on the first 2 points it is superfluous and unnecessary to deal with

this point.

Wherefore it is ordered that

Respondent’s points in limine be and are hereby upheld,

The application for condonation is struck off the roll as being fatally defective; and

Each party shall bear its own costs.

J-U-D-G-E