Munekani Majaya v Freda Rebecca Gold Mine Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 11TH
JUDGMENT NO. LC/H/143/24
CASE NO. LC/H/545/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 11TH MARCH 2024 AND 2 APRIL 2024

In the matter between

MUNEKANI MAJAYA

And

FREDA REBECCA GOLD MINE LIMITED

BEFORE THE HONOURABLE MAKAMURE , JUDGE.

JUDGMENT NO. LC/H/143/24

CASE NO.LC/H/545/23

APPELLANT

RESPONDENT

FOR THE APPELLANTT:MR P. URIRI (LEGAL PRACTITIONER)

FOR THE RESPONDENT:MR W. MUSENGWA (LEGAL PRACTITIONER)

MAKAMURE J:

This is an appeal against the respondent’s  dismissal of the appellant from its employ.

At the commencement of the hearing a point in limine was raised on behalf of the appellant. The point was that there was no company resolution authorizing one Takunda Timbe to depose to the opposing affidavit filed on behalf of the respondent. The respondent too had preliminary issues for consideration by the Court. These had to do with propriety of the grounds of appeal and the appellant’s prayer. These will be considered after the one raised on behalf of the appellant has been considered.

Preliminary issues raised by the Appellant

The appellant raised the issue that one Takunda Timbe had no authority to depose to the opposing affidavit on behalf of the respondent. It was argued that there was no company resolution or letter of appointment authorizing Takunda Timbe to prepare the opposing

affidavit on behalf of the respondent. It was submitted that under the circumstances the appeal is unopposed and should be granted. Reliance was placed on R25 of the Labour Court Rules Statutory Instrument 150 of 2017 (as amended) (the Rules). It was argued that the rule is peremptory and failure to comply with peremptory provisions of a statute is fatal, meaning that the affidavit in question is a nullity. Various case authorities were relied upon. These included the following: TN Gold Acturus (Private ) Limited v Pari and Another HH612/21;Garrat v Creative Credit (Private)Limited SC 146/21;Dube v Premier Services Medical Aid Society & Another SC73/19. During the course of his address Mr Uriri who appeared on behalf of the appellant also raised the point that the respondent’s legal practitioners were not properly before the Court as they did not file a written assumption of agency.

In response to the issue of the affidavit deposed to on behalf of the respondent, it was argued that the preliminary point would not be able to dispose of the matter. It was further argued that when a deponent to an affidavit states that they are duly authorized to swear to that affidavit, the one who disputes that authorization is put to the proof thereof. It was further argued that the absence of a resolution could not stop a deponent unless there was evidence to the contrary. Counsel for the respondent indicated that although the resolution was not part of the record it was in their possession. Leave to produce the resolution was sought but Mr Uriri objected to its production.

In response to the question of filing a written assumption of agency it was argued that the respondent’s legal practitioners of record have always represented the respondent and the

appellant’s legal practitioners in turn always copied correspondence to them. For that reason

,it was submitted that they were properly before the Court. Mr Uriri insisted that the

respondent’s legal practitioners had not pointed out any rule of this Court supporting their position.

I will hasten to deal with the question of filing the written assumption of agency. It is peremptory for there to be a written assumption of agency. However, considering that the appellant’s legal practitioners have always communicated with the respondent’s legal practitioners I find the appellant’s legal practitioners to have been complicit in the violation of the peremptory provision. This they did by corresponding with them. They should have totally objected to corresponding with or copying any correspondence to them once the matter was before the Court. It is trite that peremptory provisions of a statute must be complied with. However, taking a leaf from the Supreme Court case of Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited SC81/22 on

technicalities, the Court rules that the respondent’s legal practitioners are properly before the Court

Representation of parties before this Court is provided for in R25 of the Rules as follows:

‘25. Representation of parties, assumption and renunciation of agency

(1) Where a party—

is represented before the Labour Court by an official or employee of registered

trade union or employers’ organisation of which shall be required to produce proof of their capacity to represent the party;

is represented by a company official, they shall produce a company resolution or letter of appointment authorizing them to represent the party;

is represented by a legal practitioner, the legal practitioner shall file a written notice of assumption of agency in Form LC 6 with the Registrar and serve copies of the notice to the other party or that party’s legal practitioner or

representative.’(Emphasis added)

My understanding of R25 with respect to representation and for the purposes of this Court, is that when parties appear before the Labour Court, whosoever appears on behalf of the parties must do so in terms of the provisions of R25. This ensures that parties who appear before the Court are indeed authorized to do so. This obviates the problem of persons who purport to be either legal practitioners, trade unionists or company officials from appearing in Court and on behalf of litigants, without the requisite authority. The documents that form the record of proceedings are brought to the Court by a person who satisfies the provisions of R25. Such documents are put together by the respective parties. If anything contained in the documents is suspect, then in my considered view, the party which raises the suspicion is required to prove its suspicion on a balance of probabilities. In the present matter Takunda Timbe did not appear before the Court. A legal practitioner did. However, the document which he authored and forms part of the record, is the subject of discussion. In Tian Ze Tobacco Company (Private) Limited HH 626/15 the Court stated that:

‘Indeed, where the deponent of an affidavit has said that she has the authority of the company to represent it, there is no reason for the court to disbelieve her unless it is shown evidence to the contrary and where no such contrary evidence is produced, the omission of a company resolution cannot be fatal to the application. That is as it should be because an affidavit is evidence acceptable in court as it is a statement sworn before a commissioner of oaths. Where it states that the deponent has authority, it can only be disbelieved where there exists evidence to the contrary. It is not enough for one to just challenge the existence of authority without more as the

respondent has done.’(Emphasis added)

I respectfully associate myself with what the learned Judge said above. Even if I am wrong in my interpretation of the provisions of R25, it is still my view that the affidavit by TakundaTimbe is a statement made under oath and there is no reason for it to be doubted. An

affidavit is evidence which invariably is acceptable before a court of law. Evidence to the contrary must be produced before it can be disbelieved.

In Dalny Mine v Banda 1999(1)ZLR 220 the Court held that:

‘As a general rule it seems to me undesirable that labour relations matters should be

decided on the basis of procedural irregularities. By this, I do not mean that such

irregularities should be ignored. I mean that the procedural irregularities should be

put right. This can be done in one of two ways:

by remitting the matter for hearing de novo and in a procedurally correct manner;

by the Tribunal hearing the evidence de novo.’(My underlining for emphasis).

It is a principle in this jurisdiction that labour matters should not be resolved on the basis of technicalities. Such technicalities must be corrected. Dalny Mine v Banda (above).The appellant herein raised the issue that there was no company resolution authorizing Takunda Timbe to depose to an affidavit on behalf of the respondent. When counsel for the respondent sought to correct the technicality by producing the resolution in question, counsel for the appellant objected to it. I think the objection is totally contrary to the principle enunciated in Dalny Mine (above).In Edmore Mapondera and 55 Others v Freda Rebecca Gold Mine Holdings Limited (above) the Supreme Court cautioned both legal practitioners and judges of this Court against being too technical to the detriment of achieving simple industrial justice between the parties and achieving finality to litigation. The fact that counsel for the respondent wanted to produce the resolution means that the technicality regarding absence of the authority would have been resolved. However, by holding on to that technicality counsel for the appellant was not only going against the principle referred to above, but against the policy of finality to litigation as well as part of the purpose of the Labour Act (Chapter 28:01), that is, to ensure expeditious resolution of labour disputes. This conduct by legal

practitioners should be discouraged. It is of paramount importance that provisions of the rules of this Court are complied with. Where there has been a breach and a party asks ,for leave to correct it, that, in the interests of justice and, within reason, should be considered. Thus, with the issue of absence of a company resolution authorizing Takunda Timbe to depose to an affidavit on behalf of the respondent, there has not been evidence contradicting the authority which he said he had.

After considering argument for and against the preliminary point raised, I find that it has no merit . The preliminary issue is dismissed.

The Preliminary issues raised by the Respondent.

The first issue is that the applicant did not comply with provisions of R11A in that they did not furnish the email address and telephone number. These provisions are peremptory. In response it was argued that the said provisions fall under ‘General provisions for e-filing of process’. Further the argument continued, the fact that the appellant was registered on the system was proof that there were sufficient details. I agree. While the provisions are peremptory , the impression that that I get is that no prejudice was suffered by the other party. I do refer to the question of prejudice guardedly because the provisions are peremptory. However, in terms of r32 it is my view that it be directed that there was substantial compliance. It is accordingly so directed. I therefore find that there is no merit in the preliminary issue raised. The preliminary issue is accordingly dismissed.

The second preliminary point is that the relief sought is incompetent ; that some of the grounds of appeal are vague and grounds 5 to 8 and 12 raise procedural issues. In response it was argued that the prayer is exact and the grounds refer to the audi rule .It was submitted that the prayer and the grounds are not defective.

Some of the grounds of appeal followed by the prayer are couched along the following lines:

‘5. The disciplinary Authority erred on a point of law failing to apply his discretion judiciously when he refused the Appellant an opportunity to call two defense witness (sic),one who tested the motors and one who took photographs of the motors being tested, thus violating the audi alteram partem rule.

The Disciplinary Authority was biased…..

The Appeal Designated Authority…. thus condoning a breach of the audi alteram partem rule .

……

10. The Appeal Designated Authority erred and seriously misdirected himself that Mr Murombedzi , the competent person who the appellant relied on as the competent person contradicted the appellant when it is on record that it was actually the competent person, Mr Murombedzi, who was seriously contradicted by the appellant to the extent that the Appeal Designated Authority indicated that the competent person will be dealt with internally for misleading the Appellant.

….

Wherefore Appellant prays for:

An order setting aside the dismissal of the appellant’

The appellant reverts to the position he was prior to the commencement of the disciplinary hearing proceedings without loss of salary and benefits.

Should reinstatement be no longer possible he be paid damages in lieu thereof.’

As exemplified by some of the grounds of appeal referred to above, the grounds are either vague or they deal with issues which are for review and not appeal.

In Songono v Minister of Law and Order 1996 (4) SA 384(E) the court stated that grounds of appeal should be clear and concise in the following words:

‘…the grounds of appeal must be clearly and succinctly set out, in clear and unambiguous terms, so as to enable the Court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal… It is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intends to rely on but does not clearly set out.’

See also Simon Chinganga v Munashe Shava and 2 Others SC 12/22 and cases quoted therein.

In Fadzai John v Delta Beverages Limited SC 40/17 the Supreme Court had this to say about the need for a prayer to be exact.:

‘It has been emphasized in several judgments of this court that the rules require that that prayer in the notice of appeal must exact in nature. This matter came to the Labour Court as an appeal from a determination of the disciplinary committee. This application is to appeal against the decision of the Labour Court. In seeking the setting aside of the decision of the court a quo, the applicant neglected to address what should happen to the decision of the disciplinary hearing.

….

In the case of Ndlovu & Anor v Ndlovu & Anor MALABA JA, as he was then, held that: ‘“The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case

it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”’

It was submitted on behalf of the respondent that the grounds of appeal are not clear and concise. I agree. The grounds of appeal are long , vague and embarrassing .They do not put both the respondent and the court in a position to immediately ascertain what the issues for determination are. They are therefore not properly before the Court. What this means is that there is merit in the preliminary issue raised. The preliminary issue is accordingly upheld.

The prayer , it was submitted is not exact. Once again ,I agree. The prayer does not mention the fate of the decision of the internal appeal. Thus, while it refers to the disciplinary proceedings, it is not specific about the decisions. There is merit in the issue raised. It is upheld

I have found that the second preliminary point raised on behalf of the respondent which dealt with both defective grounds of appeal and prayer to have merit. This means that the matter is not properly before me. For what it’s worth all the grounds raising reviewable issues i.e. grounds 5,6,7,8,and 12 are stuck out. The remaining grounds are all not properly before the Court.

In view of the foregoing it is ordered that:

The matter be and is hereby struck off the roll.

There is no order as to costs.

KOSSAM NCUBE&PARTNERS , APPELLANT’S LEGAL PRACTITIONERS.

CHIMUKAMAFUNGA	COMMERCIAL	ATTORNEYS,	RESPONDENT’S	LEGAL PRACTIONERS.