Thawlay Investments Pvt Ltd v Kenneth Chikwava & 7 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/14/24
HARARE, 24 OCTOBER, 2023
CASE NO. LC/H/519/23
AND 29 JANUARY 2023
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 24 OCTOBER, 2023

AND 29 JANUARY 2023

In the matter between

THAWLAY INVESTMENTS PVT LTD

Versus

KENNETH CHIKWAVA & 7 OTHERS

Before The Honorable L. Hove, Judge:

For Applicant	: Mr.M. Chikwama For Respondent : Mr.K. Masasire

HOVE J:

JUDGMENT NO. LC/H/14/24

CASE NO. LC/H/519/23

Applicant

Respondent

The respondent in casu argued that the application is improperly before the Court because there is no resolution filed by the applicant authorizing the deponent to the founding affidavit to file the affidavit on behalf of the applicant company.

That no resolution was filed is not disputed. The respondent argues that the filing of a resolution authorizing the deponent to the founding affidavit to act on behalf of the applicant company is not necessary in every case. If it is found to be necessary, then it can be tendered from the bar. The applicant requested that he attaches the company resolution.

The position of law is that it is necessary to attach a company resolution once this issue has been challenged see in this regard the Supreme Court case of Madzivire and ors vs Zvarivadza and ors 2006 (1) ZLR 514 the court stated that a company being a separate legal persona, can not be represented by a person whom it has not authorized. This is a well- established legal principle which courts may not ignore. See also Dube v Premier services medical aid society SC 73/19.

The High Court Authority that the applicant company seeks to rely one cannot take precedence over Supreme Court decisions. The application would thus be improperly before the Court. The respondent raised this as far back as its notice of opposition but the applicant ‘application to regularize this irregularity was placed before the court. The application is thus improperly before the court.

Another point of law raised was that the applicant was seeking to review a Judgement granted in default. This, it was arguing it is not proper for one can only seek to rescind a default order and not to either appeal against it or seek to have it reviewed. Decisions of the Supreme Court have in my opinion placed this issue beyond debate. In Zvinavashe v Ndlovu 2006 (2) ZLR 372 the court held as follows;

‘Counsel for respondent argued correctly that a default judgment can only be set aside by a successful application for rescission of judgment under the rules of Court’ this is the only way to purge the default, the court added, otherwise the default remains unpurged. In OK Zimbabwean limited v. Tazvivinga SC 134/21 the court held that;

‘according to our law, a party cannot appeal or seek review against a default Judgment. ‘

The Supreme Court has stated that the proper procedure is to seek a default judgement’s rescission before one can raise all the issues it has with the dispute. Before seeking its rescission, one cannot relate to the default order or judgement in any other way. One cannot appeal against a default order neither can one seek a review against it.

In the result, the preliminary points are found to be with merit and they are hereby upheld.