Lloyd Machacha v Dr C. Dhege N.O. and Health Services Commission

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/93/24
HARARE 26 FEBRUARY 2024
CASE NO LC/H/1067/2024
07 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 26 FEBRUARY 2024

07 MARCH 2024

JUDGMENT NO LC/H/93/24 CASE NO LC/H/1067/2024

LlOYD MACHACHA	APPLICANT

DR C. DHEGE N.O.	1st RESPONDENT

HEALTH SERVICES COMMISSION	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-	Mr B. Magogo, Advocate

For Respondent	-	Ms A. Magunde, Officer Mr C. Gutu, Officer

MUSARIRI, J:

At the onset of oral argument in this Court applicant raised a point in limine which respondents opposed.

“2. No authority to depose to affidavit on behalf of 2nd Respondent.

2.1 The deponent to Respondents; opposing affidavit has no legal authority to depose to same on behalf of 2nd respondent which in terms of section 3 of the Health Service Act (Chapter 15:16), is a corporate body. It is trite that authority to act for a corporate body is required before a natural person’s deposition is accepted.

3. Michael Sande says he is the Acting Secretary for the 2nd respondent and has authority flowing from his position as such. He attaches no proof of authorisation to depose to the affidavit concerned by the Commission neither does he aver that the Commission made such decision at some point and delegated to him as per section 6 as read with 10(4) of the Health Service Act. His case stands or falls on his averments in his affidavit. He has no charge over applicant as he does not employ him.

2.3. He must be non-suited. The Notice of Response should therefore wholly be struck out and the matter proceeds as unopposed in terms of Rule 29 of this Court’s rules.”

In their heads of argument respondents countered as follows

“4….In casu, the Acting Secretary highlighted on paragraph 1 of his opposing affidavit that he has the requisite authority to depose the opposing affidavit. This point in limine ought to be dismissed for its lack of merit.”

The law on the representation of corporates in courts was laid by Garwe JCC in Dube v PSMAS 2019(3) ZLR 589(S) 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 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.”

Clearly the deponent in casu was obliged to produce proof of his authority to represent the Health Service Commission. Alternatively respondents relied on Extracts of minutes of the Commission signed by its Chairman on 19 February 2024. The relevant part of the extract reads

“It is hereby resolved that:

The resolution of the Commission meeting of 30 January 2023 assigning disciplinary responsibilities to the Secretary and all actions of the Secretary pursuant to the said resolution be and is hereby notified.”

Applicant argued that Commission in issue was only appointed on the 5th January 2024, He relied on the Press Statement issued by the Acting Chief Secretary to the President and Cabinet on that date. Applicant concluded that there was no Commission in January 2023 which could take decisions that would be ratified in January 2024. He pointed to the last paragraph of the Press Secretary which references a Ms Gwaunza who served on the predecessor Health Service Board (HSB) up to December 2022.

It appears that applicant has stretched and strained the import of Ms Gwaunza’s service on the HSB. That her service ended in December 2022 does not signify the end of the HSB. It only notes the end of her service on it. According to the Commission’s Chairperson a meeting was held on 30 January 2023. Its (or predecessor) resolution to assign the Secretary with “disciplinary responsibilities” was ratified by the present Commission as stated by the Chair.

Such ratifications are provided for by paragraph 10 of the Second Schedule to the Health Service Act Chapter 15:16 which provides that

“(1) No decision of the Commission or act done under the authority of the Commission shall be invalid solely because there were one or more vacancies on the Commission when the decision was taken or the act was done or authorised.

(2) If any decision or other act of the Commission is rendered invalid through a procedural irregularity, the Commission may at a duly convened meeting ratify the decision or act, and any decision or act so ratified shall be valid in all respects with effect from the date of its ratification.”

In his reply to respondents’ counter, applicant sought to make a constitutional argument concerning acts of a Commission whose members had not been sworn by the President in terms of the Constitution. Such argument was not made in the pleadings or heads of argument. It was only raised in reply to respondent’s arguments. The belated argument is clearly out of order and therefore discounted.

Wherefore it is ordered that;

Applicant’s point in limine be and is hereby dismissed;

The matter is postponed to the 19th March 2024 at 11:00 for continuation; and

Costs shall be costs in the cause.

G MUSARIRI J-U-D-G-E