Kama Winding Up Committee v Emmanuel Muchena

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/410/2014
HARARE, 26 JUNE 2014 AND
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/410/2014

HARARE, 26 JUNE 2014 AND	           		           CASE NO. LC/APP/H/265/14

04 JULY 2014

In the matter between:-

KAMA WINDING UP COMMITTEE				Applicant

And

EMMANUEL MUCHENA						Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		R.F. Mushoriwa (Legal Practitioner)

For Respondent		A. Chambati (Legal Practitioner)

MAXWELL J:

At the hearing of this matter Respondent raised a point in limine that Applicant had instituted parallel proceedings in the High Court under case number HC-5110/14.  The said proceedings in the High Court were actually set down for 1600 hours on the same day.  Respondent argued that Applicant was seeking before the High Court the same relief sought before this Court.

Mr. Mushoriwa denied that there were parallel proceedings in the High Court.  He argued that the parties are different as the applicant before the High Court is Kadoma City Council.  He also argued that the relief sought is different as in the High Court the order sought is to stop processes instituted by the registration of an award therein.  He pointed out that Respondent is seeking to enforce an award against the Applicant and has now attached property belonging to Kadoma City Council.

It appeared to the Court that “Kama Winding Up Committee” is not a legal persona, capable of suing and being sued.  Accordingly Counsel for the Applicant was asked to address the Court on the matter.  Applicant’s Counsel’s response was that since the award was against Kama Winding Up Committee (Kama) it follows that the Committee should have the ability to bring these proceedings.  He explained that the committee was set up to wind up affairs of Kadoma Marketing.  He further argued that since the Committee had been sued by the Respondent it cannot be prevented from instituting proceedings arising there from.

Counsel for Respondent argued that the committee was the alter ego of Kadoma City Council.  He pointed out that it has no separate existence to that of Kadoma City Council.  He further pointed out that it was created by Kadoma City Council by a charter which clearly states that it is solely owned by Kadoma City Council and has no separate existence on its own.

Counsel for Respondent further pointed out that this is not the first time where an award against Kama was pursued against Kadoma City Council.  In one instance Kadoma City Council ended up making payment thereafter.

I find merit in the point in limine raised by the Respondent.  Applicant is seeking to have the arbitral award dated 17 February 2014 suspended pending the outcome of the Appeal filed in this court.  The said award was registered in the High Court.  The award has become an order of the High Court.  It has not been disputed that proceedings before the High Court set down for 1600 hours on the day of the hearing of this matter concern the same award.  It is not proper for Applicant to run parallel proceedings in two different courts.  In any event once an award has become an order of the High Court, in my view, this Court does not have jurisdiction to stay or suspend it.  In any event I am of the view that no legal persona instituted proceedings before this Court.  I am fortified in my view by the following authorities.

Zimbabwe Bata Shoe Company Ltd v Bata Shoe Company Middle Management SC – 30 – 12.

CT Bolts (Pvt) Ltd v Workers Committee SC – 16 – 12

Zimsec Employees v Zimsec H-H-430-12.

I find that Kadoma Winding Up Committee is not a juristic person and lacks capacity to institute these proceedings.  Respondent urged the Court to order costs on a higher scale against Applicant.  I am not persuaded that an order of costs would be appropriate against a non-juristic persona.

Accordingly on that basis I dismiss the application.

Wherefore it is ordered that

Applicant not being a juristic person, the application be and is hereby dismissed with no order as to costs.

MAWERE & SIBANDA, Applicant’s legal practitioners

CHAMBATI, MATAKA & MAKONESE, Respondent’s legal practitioners