Safrique Safari (Pvt) Ltd v Shadreck Lunga & 23 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/396/2014
HARARE, 17 FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/396/2014

HARARE, 17 FEBRUARY 2014,			          CASE NO LC/H/92/2013

& 4TH JULY 2014

In the matter between

SAFRIQUE SAFARI (PVT) LTD					APPLICANT

Versus

SHADRECK LUNGA & 23 ORS					RESPONDENT

Before Manyangadze J

For the Applicant		R Chingwena	   (Legal Practitioner)

For the Respondent		M Magodi	(Trade Unionist)

MANYANGADZE J:

This is an appeal against an arbitral award in terms of which the appellant was ordered to pay a total of $57 391-59 to the respondents to meet underpayment of wages covering the period February 2009 to June 2012. The award was granted on 18 December 2012.

The factual background to the dispute is that the respondents were employed by the appellant; in various capacities, for a period stretching from November 1987 to the time of the arbitral award. However, seven of the respondents were employed by the appellant up to June 2012, the time of their dismissal, while the rest are still in the appellant’s employ.

All the twenty-four respondents were granted the claim for underpayment of wages. The seven dismissed respondents lost their claim against the appellant for unfair dismissal.

The concern of this appeal is therefore the award for underpayment of wages, in respect of all the twenty four respondents. At the hearing of the matter on 17 February 2014, the appellant’s counsel raised some points in limine. These were that:

The Workers Committee that was appeared before the arbitrator had no locus standi to do so.

The Chairman of the Workers Committee, Mr S Lunga, had no mandate to represent the rest of the respondents.

The arbitrator improperly joined, meru moto, parties to a dispute who had different causes of action.

The arbitrator erroneously ruled that the appellant fell under the Catering Industry.

The appellant’s Counsel, Advocate Rambai Chingwena, raised the points in limine by way of oral submissions.

It must be noted that at the time the appellant filed its appeal, it was not legally represented. It did so as a self-actor.

The court adjourned the hearing to 3 March 2014, by which date it directed that both parties file Heads of Argument on the points in limine.

At the hearing on 3 March 2014, the respondents had not yet filed their Heads of Argument. The appellant had filed its Heads of Argument on 25 February 2012. The respondent’s representative, trade unionist Mr Magodi, requested for time to respond to the appellant’s Heads of Argument. It was thus agreed by both parties that the respondents be given up to 10 March 2014 to file their Heads of Argument, after which the court will proceed to make a determination on the points in limine.

The respondents filed their Heads of Argument on 10 March 2014.

An examination of the arbitrator’s judgment shows that it is in fact the Workers Committee that appeared as one of the parties. This is what the arbitrator observed, as reflected in his remarks, at page 2 of the arbitral award:

“The first case was cited as Workers Committee v Sufrique Safaris while the second was Witness Million & 6 Ors v Safrique Safaris…”” (underlining added)

The arbitrator subsequently, for purposes of writing his determination, joined the two cases and changed the citation to read “Shadreck Lunga & 23 Ors.”

The arbitral award also shows that the persons who appeared at the arbitral hearing were officials of the Workers’ Committee. These are indicated, under representation of parties, as:

“S Lunga (Workers’Committee Chairman); N Muzambuko (Secretary); and

F Munga (Committee Member).”

It is clear that in the proceedings before the arbitrator, the Workers Committee appeared as one of the parties to the proceedings.

The appellant contended that it had no capacity to do so, as the Workers Committee has no legal capacity to institute or defend proceedings. In this regard, the appellant referred the court to the case of C T Bolts (Pvt) Ltd v Workers Committee SC-16-2012. The case involved a determination of the salary increment to be awarded to employees of the applicant. The Labour Court remitted the matter to the arbitrator for such determination. Both the Labour Court and arbitration proceedings were held to be a nullity, by reason of the Workers Committee’s appearance as a party to the proceedings, when it had no legal capacity to do so. The Supreme Court, at page 4 of the cyclostyled judgment, concluded that:

“The respondent, not being a legal persona, is not properly before this Court. The proceedings before the Labour Court and prior to that, the arbitrator, were similarly void.” (underlining added)

The court cited with approval the case of Cold Storage Company National Workers Union v Cold Storage Company Limited HB-08-02, in which it was held:

“The legislature did not give the workers committee the right to sue and be sued like it did to the employment council. In s 60 of the Act, employment councils were made bodies corporate, capable of suing and being sued. It seems to me that if the intention of the legislature was to make workers committee legal persona ‘it would have said so.’

The appellant, however, argued that it derived its authority from the provisions of the Act quoted supra. It seems to me that the argument ignores the fact that in the event of the case going in favour of the other party with costs such party would have no one to recover its costs from, as the applicant is not capable of suing and being sued. There would also be no one to execute the order against.”

Similarly, in casu, the Workers Committee had no locus standi to appear in the arbitral proceedings. The proceedings were therefore a nullity, in that one of the parties lacked legal capacity to prosecute such proceedings. The change of citation by the arbitrator, post facto, and as a matter of convenience for purposes of his determination, did not cure the fatal defect inherent in the proceedings.

This point, which was the first point in limine, has the effect of rendering the proceedings in the tribunal a quo a nullity. Consequently, the proceedings would also not be properly before this court. On the basis of this point alone, the arbitral proceedings must be set aside. This renders it unnecessary to delve into the other points raised by the appellant.

It is noted that the respondents’ Heads of Argument address only one issue, that of whether or not the appellant falls under the Catering Industry Collective Bargaining Agreement. The other crucial points, such as the one on the Workers Committee’s legal status, have not been addressed at all. This leaves the point in limine virtually unopposed.

In the circumstances, it is ordered that:

The first point in limine be and is hereby upheld.

The arbitral proceedings which resulted in the arbitral award of 18 December 2012, being a nullity, be and are hereby set aside.

Each party bears its own costs.

Advocates Chambers, appellant’s legal practitioners