Shepherd Maseka v Chikomba Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/193/2020
HARARE, 26 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/193/2020

HARARE, 26 FEBRUARY, 2020		     	     CASE NO. LC/H/APP/455/19

REF CASE: LC/H/REV/76/17

AND 14 AUGUST, 2020

In the matter between:-

SHEPHERD MASEKA						Applicant

Versus

CHIKOMBA RURAL DISTRICT COUNCIL			Respondent

Before The Honorable L. Hove, Judge:

For Applicant	Mr L Zinyengere (Zinyengere & Rupapa Legal Practitioners)

For Respondent	Mr BS Ziwa (Gill, Godlonton & Gerrans Legal Practitioners)

HOVE J:

On 12 July 2019 this court partially upheld an appeal by the applicant against the Respondent.

On 29 July 2019 the applicant filed an application for leave to appeal.

His draft notice of appeal to the Supreme Court raises four grounds of appeal and in brief these are that;

1.	The court erred in law in upholding the verdict of the disciplinary committee when it had made a finding that the applicant was a non-managerial employee.

2.	The disciplinary proceedings had been vitiated by the charging of the applicant as a managerial employee.

3.	The court erred in making a finding that there was no prejudice suffered by the applicant when he was denied the input of the workers committee by treating him as a managerial employee.

4.	The court erred in finding that there was no bias exhibited by the disciplinary committee when;

1.	mitigation was not accorded to the applicant,

2.	the disciplinary committee withheld the record of proceedings and

3.	the adoption of the procedure which treated the applicant as a managerial

employee did not allow the participation of the workers committee who were privy to the facts.

The Respondent opposed the application for leave to appeal and raised a point in limine that there is no application before the court for want of a valid notice of appeal. The respondent argued that in its draft notice of appeal the applicant states that leave to appeal was granted by Justice Hove on 12 July 2019 when the leave to appeal had not been granted. Again, it was argued that the draft notice of appeal does not comply with form 1 prescribed by Practice Direction No.1 of 2017.

Secondly, it was argued that the draft order is defective in that it is not seeking the remittal of the dispute to the Respondent for the matter to be heard in a procedurally correct manner which is the correct relief in the event that it is found that there were procedural irregularities.

The applicant’s heads of arguments also raised points in limine. The applicant argued that the opposing affidavit be expunged from the record and the matter be treated as an unopposed matter on the grounds that the person who deposed to the opposing affidavit had no authority to represent the Respondent in view of the provisions of S.149 of the Rural District Councils Act [Chapter 29:13].

Secondly, it was argued in limine, that the opposing affidavit was fatally defective in that the deponent signed the affidavit on 7 August 2019 when the commissioner of oath signed on 6 August 2019.

The parties agreed that the court should decide the matter on the papers filed before it by the parties. The court will thus consider the preliminary points raised. The merits of the application will then be considered depending on the court’s findings in relation to the preliminary points raised.

The court will proceed to consider and decide the points raised in limine.

Whether or not there is a valid and proper opposing affidavit filed on behalf of the respondent.

The argument that the deponent has no authority is based on the allegation that the deponent was not authorized expressly to represent the Respondent.

Reliance was placed on the provisions of section 149 of the Rural Districts Councils Act [Chapter 29:13] in support the point in limine taken by the applicant.

The provisions referred to provides that:

149 Execution and authentication of documents.

Every order, notice, written contract or other document requiring execution or authentication by a council shall be sufficiently executed or authenticated if:-

(a)	signed by:

(i)	The Chairman of the council and the Chief Executive Officer or any other officer or employee duly authorized by the council; or

(ii)	any two or more councilors authorized by the council.

(b)	executed or authenticated in any other manner that may be prescribed in by-laws of the council; in the presence of such witnesses as may be required in terms of any law.

The deponent to the opposing affidavit is the Acting Chief Executive Officer. He,

in the opposing affidavit;- averred that he was properly authorized to depose to the

affidavit on behalf of the Respondent.

The provisions of section 149 of the Rural District Councils Act [Chapter 29:13]

allow the Chief Executive Officer to sign the opposing affidavit. The deponent is the

Acting Chief Executive Officer, acting as the Chief Executive Officer with authority to

stand in the shoes of the Chief Executive Officer and act in his stead. The deponent also

averred under oath that he has authority to swear to the affidavit. He is therefore properly authorized

by council unless it can be shown that he is not being truthful in making the averment.

In African Banking Corporation t/a BancABC v PCW Motors (Pvt) Ltd & others HH 123/13 the court stated as follows;

“I am aware that there is authority for demanding that a company official must produce proof of authority to represent the company in the form of a company resolution, South Africa Milling Company (Pvt) Ltd v Reddy 1980 (3) SA 431; South African Allied Workers Union & others V de Klerk No & others 1990 (3) SA 425.”

However, it occurs to me that the form of proof is not necessary in every case each case must be considered on its merits. Mall (Cape) (Pvt) Ltd v Merino KO-Opraisie Bpk 1957 (2) SA 345 (C). All the court is required to do is satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not an unauthorized person.

To my mind the attachment of a resolution has been blown out of proportion and taken to ridiculous levels. Where the deponent of an affidavit states that he has the authority of the company to present it, there is no reason for the court to disbelieve him unless it is shown in evidence to the contrary. Where, no such contrary evidence is produced the omission of a company resolution cannot be fatal to the application. I therefore reject the point in limine”.

Although the High Court was in this case referring to companies and not to Rural district councils as in casu, I am of the considered view that the issue of authorization should be an issue taken to assist the court in determining that indeed it is the Respondent who is indeed responding to the litigation. It cannot be used to frustrate the determination of issues before the Court. In this case, the deponent is the Acting Chief Executive Officer. The relevant provisions allow authentication by the Chief Executive Officer. This in my opinion should be read to include the Acting Chief Executive Officer, to hold otherwise might actually defeat the whole purpose of the relevant Act. In any event the deponent is lawfully acting on behalf of an authorized person.

Further and above the fact that the Acting Chief Executive Officer is himself authorized by virtue of being the Chief Executive Officer, he is also an official of the Council who has under oath stated that he is duly authorized. Apart from arguing that he acted outside the provision of section 149 of the relevant Act, nothing further is stated in support or in evidence on the record to show that the deponent is not being truthful. I therefore reject the point in limine.

Was the opposing affidavit properly commissioned?

Page 23 of the record shows that a commissioner of oaths Jambawo Alphaeus commissioned the affidavit. The stamp of the commissioner of oaths is not dated. There is therefore no evidence in support of the averment that the deponent signed on the 7th of August 2019 and the commissioner of oaths signed on the 6th of August 2019. It is therefore not fatally defective. This is so because the affidavit shows on the face of it (page 23) that it was done and sworn to at Harare before a commissioner of oath on the 7th of August.

On the record, there is nothing stated to support the averment that the commissioner of oaths signed on the 6th of August 2019. This point in limine has not been substantiated and must again be rejected.

Was leave to appeal granted by Justice L. Hove on 12th July 2019

It is clearly common cause that the stated fact is not accurate. Nothing further needs to be said about this point except to accept the Respondent’s averment that the notice of appeal is defective in this regard.

The court however accepts the submission by the applicant that the court should condone the vice in the interest of justice especially in view of the fact that the respondent has not alleged that it has been prejudiced in anyway.

The Labour Court is authorized in the interest of justice to condone any failure to abide by the rules of court.

Rule 32 provides that;

“at anytime before or during the hearing of a matter a Judge or Court may-

(a)	direct, authorize or condone a departure from any of these rules, including any extension of any period specified therein where Judge or Court is satisfied that the departure is required in the interest of justice, fairness and equity”.

In the case Githere v Kimingu 1976 – 1985E  A 101 the Court stated that:

“the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the Court should not be too far bound and tied by the rules which are intended as general rules of procedure, as to be compelled to do that which will cause injustice in a particular case.”

The defect is therefore condoned in the interest of justice.

The second objection in limine is that the relief sought is incompetent in that he does not seek on the basis of the alleged procedural irregularities to have the matter remitted to the employer to have the matter heard in a procedurally correct manner. The applicant seeks rather to have allegations against him dismissed. This is irregular. The court has stated in the case of Dalny Mine t/a Run Mine vs Musa Banda SC 39/99 that the remedy to procedural irregularities is by either remitting the matter to the court (or tribunal) aquo or by the court itself hearing the matter in a procedurally correct manner. In Manyonda and ors v PTC SC 10/99 the court again frowned at the disposal of Labour disputes on the basis of procedural irregularities, the Court said;

“their defence is entirely procedural. They do not say, we should not have been dismissed. They say, “we should not have been dismissed in that way……. . They point to the registered code of conduct of the Post and Tele communications and claim they should have been dealt with under the code. There should have been hearings etc”.

The applicant in casu is in the same position as the appellants in the Manyonda case (supra). He is not offering any defence but argues that the proceedings were defective and I must be re-instated. The courts have also stated times without number that it is undesirable to dispose of Labour disputes on the basis of procedural illigarities. See in this regard the case of Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60.

where the court stated that:

“as correctly contended on behalf of the appellant, this court has in the past emphasized the need to avoid determining matters on the basis of technical irregularities in labour disputes, particularly where such irregularities can be cured by leading evidence”.

To therefore ask the court to dispose of a Labour dispute on the basis of procedural irregularities is itself irregular. I find therefore that there is merit in the preliminary objection that the prayer in the draft is fatally defective.

In the result, the points raised in limine by the applicant are found to be without merit. The first preliminary objection by the respondent is upheld but the failure to comply with the rules is condoned. The 2nd preliminary point by the respondent is upheld, the application before the Court is fatally defective on account of the prayer being fatally defective.

The application is accordingly struck off the Roll.

Zinyengere Rupapa	-	Applicant’s Legal Practitioners

Gill, Godlonton & Gerrans	- 	Respondent’s Legal Practitioners