Munyaradzi Gara v Vital Logistics and Tobit Mupota

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/177/2020
HARARE, 1 JULY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/177/2020

HARARE, 1 JULY 2020				       CASE NO. LC/H/APP/265/19

AND 31 JULY2020

In the matter between:-

MUNYARADZI GARA					Applicant

And

VITAL LOGISTICS						1st Respondent

And

TOBIT MUPOTA						2nd Respondent

Before Honourable B.T. Chivizhe, Judge

Applicant			In default

For 1st Respondent	Ms S.Mapanje (Legal Practitioner)

For 2nd Respondent	Mr T.T. Mafongoya (Legal Practitioner)

CHIVIZHE, J:

This is a ruling on preliminary points taken before me by the 1st Respondent which points were opposed by the 2nd Respondent. It is however necessary to set out initially the background to the matter.

FACTUAL BACKGROUND

The 2nd Respondent was employed by the 1st Respondent as a driver. He was engaged on the basis of fixed term contract which later was converted to an open ended contract. His employment was terminated at the end of 2017. He thereafter, on the basis of Section 63 (3a) of the Labour Act [Cap 28:01] referred a claim of unfair dismissal, non-payment of overtime, notice-pay, allowances, gratuity backpay, and compensation for loss of employment to the Designated Agent(Applicant in this case). Upon consideration of the evidence and the submissions of the parties the Applicant handed down a ruling in which he directed 1st Respondent to pay 2nd Respondent USD2189 in notice pay, gratuity and compensation for loss of employment. The 1st Respondent was directed to pay the amount by the 31st January, 2019. The 1st Respondent having failed by the stipulated date to pay the 2nd Respondent by the stipulated date the Applicant, on the basis of Section 93(5)(c) of the Labour Act [Cap 28:01] as amended by Labour Amendment Act No 5 of 2015, filed an application for confirmation of his draft ruling with this court. The application was served on the 1st and 2nd Respondent. As the application was being filed out of time there was an accompanying application for condonation.

The matter was set down for hearing on the 5th of March, 2020. On that date appeared, the Applicant in person, Ms F. Takaendesa Human Resources Director for 1st Respondent and Mr T. J. Mafongoya Legal Practitioner for 2nd Respondent. The 1st and 2nd Respondent representatives having both indicated that they were not opposed to the granting of condonation the court duly extended condonation to the Applicant for late filing of the application for confirmation. The parties were thereafter allowed to present arguments. The Applicant made his submissions. The 1st Respondent, as represented by Ms Takaendesa, submitted that it was opposed to the confirmation of the ruling. The reason was that 2nd Respondent had been employed by a different company i.e. Spar Distribution Centre from 2010 to 2015 so it was 1st Respondent position that it was not liable for payment of gratuity. The second ground of objection was that 2nd Respondent had only been engaged by 1st Respondent on the basis of fixed term contracts the last of which ran from 1st may, 2016 to 31st July, 2016. It was Ms Takaendesa submission a copy of that contract had been placed before Applicant.

Mr Mafongoya, for 2nd Respondent, countered the submissions by 1st Respondent. It was his submission that the Applicant had duly considered the parties submissions and the evidence before arriving at his draft ruling. He had arrived at a finding that 2nd Respondent had been employed by 1st Respondent on a permanent basis hence 1st Respondent was liable to pay the amounts as reflected in the draft ruling. The Applicant had also made a formal finding that 2nd Respondent had been transferred from Spar Distribution Centre to 1st Respondent. He made a further finding that on the basis of the evidence in the record 2nd Respondent had started working for 1st Respondent in 2010. 1st Respondent was therefore liable to pay gratuity as calculated under the relevant N.E. C provisions. Mr Mafongoya submitted that in the circumstances the court ought to dismiss the 1st Respondent grounds of objection.

Ms Takaendesa, in reply, insisted that 1st Respondent’s grounds of objection were valid. The application for confirmation of the draft ruling stood to be dismissed. It was 1st Respondent position that 2nd Respondent having been employed by Spar Distribution Centre between 2010-2015 it was Spar Distribution Centre which owed him gratuity. The Applicant had erred in the conclusion reached.

It became apparent to the court that there was a clear dispute of fact between the 1st and 2nd Respondent as to which entity employed 2nd Respondent for the period 2010 to 2015 and was therefore liable to pay gratuity. It was also not very apparent the nature of the relationship between 1st Respondent- Vital Logistics and Spar Distribution Centre was it a holding company| subsidiary company 2nd Respondent had been transferred and if so the terms of such transfer. This information was necessary before the court could proceed to test the correctness of the Applicant’s ruling in regards the issue of gratuity. The parties were for that reason directed to file supplementary heads to address the issue of the relationship between 1st and 2nd Respondents and which entity was liable to pay the gratuity claim by 2nd Respondent before the Applicant. The parties were thus directed to file Supplementary Head of Arguments, in the case of 2nd Respondent at the latest by 13th of March, 2020 and in the case of 1st Respondent by 20th March, 2020. The 2nd Respondent duly filed his Supplementary Heads of Arguments on 13th of March. The 1st Respondent did not file the Heads of Argument.

On 16th of June 2020 Messrs Lunga and Associates authored a letter addressed to Applicant and copied to the court. It was indicated therein that they had been instructed to assume agency on behalf of 1st Respondent. They indicated that their client had not been served with the application by the Applicant as required by the Rules. This was evidenced by the record. As a result they had not filed any Notice of Opposition. It was indicated that in the absence of proof of service of the application on their client they were unable to file Notice of Opposition or the Supplementary Heads of Arguments as directed by the court. They were thus directing Applicant to serve the application within 48 Hours to enable them to file the Notice of Opposition and the Heads Of Argument. Messrs Mafongoya and Matapura who are Legal Practitioners representing 2nd Respondent filed their own response to the letter from Messrs Lunga and Associates. They objected to the tone of the letter which was meant to mislead the court. It was their submission that the 1st Respondent had clearly been served with the application. This was the reason why Mrs Takaendesa had even appeared at the initial hearing. The 2nd Respondent also invited the court to censure the 1st Respondent’s Legal Practitioners for the attempt to mislead the court. Upon receipt of both letters the court directed the set down of the matter.

The matter was reset for hearing on the 1st of July, 2020. On the date of hearing, Ms Mapange, for the 1st Respondent, then raised preliminary points. It was her submission that as the points were points of law they could be raised at any stage of the proceedings. The preliminary points were as follows;

There had been no service of the application on the 1st Respondent. In the absence of proof of service on the 1st Respondent the proceedings before the court were consequently invalid.

That the 1st Respondent cited not being a legal persona the application before the court was invalid.

The Applicant being a Designated Agent has no powers to issue a draft ruling and refer it for confirmation before the Labour Court.

Mr Mafongoya, for the 2nd Respondent in reply urged the court to dismiss all preliminary points. In relation to the third preliminary point he submitted that the point had clearly been overtaken by events. The Constitutional court had in the previous week issued its decision in the matter of Zimoco Trading as Isoquant vs Darikwa CCZ |2020. It was now the position of the law on the basis of this decision that Designated Agents, after failing to redress a dispute, and upon issuance of a Certificate of No Settlement, are empowered to draw up a draft ruling which draft ruling can then be referred to the Labour Court under Section 93(5)(c) of the Labour Act [Cap 28:01]. The preliminary point not having any basis at law clearly stood to be dismissed.

In regards the second preliminary point it was 2nd Respondent contention that the point also stood to be dismissed. The record clearly showed that the 1st Respondent had at all times held itself to be Vital Logistics. The 1st Respondent had also not taken the point before the Applicant. Even if the 1st Respondent was entitled to raise the point as a point of law the court however had powers to grant an application to amend the citation. The 2nd Respondent was therefore applying to amend the 1st Respondent citation by the insertion of (Pvt) and (Ltd) after Vital Logistics. It was submitted that 1st Respondent would not suffer any prejudice were the amendment to be granted by the court.

It was Mr Mafongoya’s further submission that the first point in limine also stood to be dismissed. The record showed that on 1st of March 2020 1st Respondent was represented by Ms Takaendesa, Human Resources Director. Her attendance on that date clearly indicated that 1st Respondent had in fact been served with the application. The 1st Respondent could not be allowed to now claim it was not served in such circumstances. Mr Mafongoya also dismissed the attempt by Ms Mapange for 1st Respondent to suggest that she had been served with application in this case on the 26th of June, 2020. It was clear the service that she was referring pertained to a different matter. Mr Mafongoya called for censure of Ms Mapange for her unprofessional conduct in this regard.

Ms Mapange, in reply insisted that, the second point was a valid objection. There being no legal person known as Vital Logistics the point ought to be upheld by the court. She referred to JDM Agro Consult and Marketing (Pvt)Ltd and another HC | 513|06. After the bearing both parties filed authorities in support of their diverse positions.

It behoves the court to address the 2nd preliminary point first as it has the potential of being dispositive of the matter should the court find that the point is with merit.

WHETHER THE 1ST RESPONDENT HAS BEEN PROPERLY CITED

The 1st Respondent made a submission that having been cited as Vital Logistics as opposed to Vital Logistics (Pvt) Ltd the proceedings before this court are a nullity for want of proper description. The 1st Respondent relied on the authority of JDM Agro Consult and Marketing (Pvt) Ltd v the Editor, the Herald 2007(2)ZLR 71(H).

In JDM Agro Consult and Marketing matter Gowora J (as she then was) in placing reliance on an earlier decision in Gariya Safaris (Pvt) Ltd vs Van Wyk reached the conclusion that the 2nd defendant in the matter had been improperly cited she found that. She found that in the form in which 2nd Respondent had been cited it was not a natural or legal persona. The citation was therefore irregular.

The same reasoning was also followed by the Supreme Court in Fadzayi John vs Delta Beverages SC 40|17 in a matter which is on all fours with the present case. In Fadzayi John the case Respondent had been cited as Delta Beverages instead of Delta Beverages (Pvt) Ltd. The Supreme Court in placing reliance once again on Gariya Safaris case stated as follows;

“	In Gariya Safaris (Pvt) Ltd v Van Wyk  it was stated as follows:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

In this case the applicant cited a non-existent respondent. Thus in the same vein the application was a nullity.”

On the basis of the authorities it appears the position is settled that where the Applicant has cited a non-existent Respondent then the proceedings are a nullity as result. The 2nd Respondent has however argued that a company can still be sued using its trading name. He has placed reliance on several authorities including Chinyakata vs Crystal Cabs and Another HH660|2015. He has also attempted to distinguish the JDM case on the basis that that case related to a summons matter and this court is not a court of first instance; that the issue was never raised before the Designated Agent; that the evidence in the record such as the correspondence| payslips reflect that 1st Respondent had held itself out as Vital Logistics. It would appear to me that in the light of Fadzayi John Vs Delta Beverages matter a definitive position has been reached at the Supreme Court. The decisions that 2nd Respondent has sought to place reliance on which are emanating from the High Court were clearly overtaken. It is therefore apparent that no application by the 2nd Respondent in this case to amend the application can cure the defect as the notice is a nullity. It also appears absurd for the 2nd Respondent to be making the application for amendment of the citation. It is common cause that the application in this matter was filed by the Designated Agent. He as the Applicant is the one who ought to be making the application to amend assuming he was at law entitled to do so.  Unfortunately not even he can make the application to amend a nullity.

In the circumstances the point in limine clearly ought to be upheld. It is accordingly ordered as follows;

The 2nd point in limine is upheld.

The 1st Respondent, not being a natural or legal persona, the application is hereby struck off the roll for improper citation.

There is no order as to costs.