Kenya Airways Ltd v Cleopatra Nazare & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/131/24
HARARE 22 JANUARY 2024
CASE NO LC/H/812/23
22 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 22 JANUARY 2024

22 MARCH 2024

JUDGMENT NO LC/H/131/24 CASE NO LC/H/812/23

KENYA AIRWAYS LTD	APPLICANT

CLEOPATRA NAZARE	1st RESPONDENT

CHIEDZA KANETA N.O.	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-	Mr W. Diarra, Attorney

For 1st Respondent	-	Mr C. Chisasa, Unionist

For 2nd Respondent	-	No Appearance, Absentia

MUSARIRI, J:

At the onset of oral argument in this Court 1st respondent raised 3 (three) points in limine which applicant opposed. The points shall be dealt with ad seriatim.

1. That the deponent to the founding affidavit does not have authority to institute these proceedings:

The founding affidavit was deposed by Ms Lisa Zvinavashe in her capacity as the attorney for applicant. Respondent argued that Zvinavashe could not institute legal proceedings without a board resolution authorising her to do so. In furtherance of this argument reliance was placed on the matter of Dube v PSMAS 2019(3) ZLR 589 (S) at paragraph 38 where Garwe JCC ruled that when challenged a person representing a corporate entity must produce the requisite board resolution.

Per contra, applicant argued that a party’s attorney can depose an affidavit in respect of procedural matters within his/her knowledge. The relief sought (reinstatement of an abandoned matter) is purely procedural.

In the Dube case supra, Garwe JCC laid down the law on the issue thus,

“…. 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. 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 state of the law in this country.”

This point was brought to applicant’s attention via respondent’s opposing affidavit filed in this Court on 25th October 2023 [Paragraph 3(a)]. In heads of argument filed on 2nd November 2023, applicant deals with the point thus

“The point is devoid of merit. It is trite that a legal practitioner can depose to an affidavit on behalf of their client in circumstances where the facts deposed to are within The legal practitioner’s personal knowledge and the legal practitioner can positively swear to the veracity of such facts.”

Applicant missed the point. The cases it cites relates to ongoing proceedings where clarification is required regarding procedural hitches. In casu we have fresh proceedings to reinstate a matter that has been abandoned. It is certainly necessary, when challenged, for the person representing applicant (a corporate entity) to prove that the corporate’s board of directors has authorised the institution of the fresh proceedings. All applicant had to do was to seek leave of Court to file the requisite resolution. They failed to do so. That failure renders these proceedings still-born.

Points 2 and 3

In light of the Court’s take on the 1st point it is unnecessary to deal with the remaining points.

Wherefore it is ordered that,

1st Respondent’s 1st point in limine be and is hereby upheld;

The application for reinstatement of matter is struck off the roll as being fatally defective for failure to produce the requisite resolution by applicant’s board of directors; and

Each party shall bear its own costs.

J-U-D-G-E