UZ-UCSF Collaborative Research Programme v Isidore Husaihwevhu & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/128/2020
HARARE, 19 FEBRUARY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/128/2020

HARARE, 19 FEBRUARY 2020		             CASE NO. LC/H/APP/124/19

AND 5 JUNE 2020

In the matter between:-

UZ-UCSF COLLABORATIVE RESEARCH			Applicant

PROGRAMME

And

ISIDORE HUSAIHWEVHU					1st Respondent

And

WALTER MUTOWO						2nd Respondent

And

FUNGAI ZINYAMA						3rd Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr H. Mutasa (Legal Practitioner)

For Respondents		Mr L. Madhuku (Legal Practitioner)

CHIDZIVA, J:

This is an application for condonation of late filing of an application for leave to appeal and an application for leave to appeal.

When the parties appeared before this court the Respondent raised the following points in limine,

The applicant raised the hybrid application which is not permitted by rules of this Court. The applicant ought to have raised an application for condonation on its own and if that application was granted then the application for leave to appeal would then be made.

The deponent has no authority to represent the applicant. There was no evidence to show that the deponent has authority to represent the applicant. In the absence of that authority there is no proper application before this court.

In response the applicant argued that the points in limine were meritless in that,

The Labour Court is empowered to determine a matter relating to condonation of departure from the rules at any time before or during the hearing of any matter.

Pangisile Matikiti had been representing the applicant and her authority had never been challenged.

What is to be decided in this matter is,

Whether or not the deponent of the affidavit has the authority to represent the applicant.

Whether or not the hybrid application is invalid.

Whether or not the deponent has authority to represent the applicant

In her founding affidavit Pangisile Matikiti stated that,

“I was employed by the Applicant as its CTU Administrative Director. It is on that basis that I am duly authorised to depose to this affidavit on behalf of the applicant.”

It is clear from this that the deponent was no longer in the employee of the Applicant.

In the case of Madzivire & Ors vs Zvarwadza HH 74/2006 Makarau J (as she then was) stated that,

“The fictional legal persona that is a company still enjoys full recognition by the courts. Thus for any acts done in the name of the company, a resolution duly passed by the board of directors of the company has to be produced to show that the fictional personae has authorised the act. In my view so trite is this proposition or so settled is this position at law that no authority need be cited.  The applicants are well aware of this position at law for in paragraph 17 of the first paragraph, issue is taken that no resolutions were passed by the company authorising the first respondents and others to do certain acts complained of in that paragraph. Due to lack of such authority stemming from the Board of Directors, the applicants argue that the purported acts by the first respondent are null and void. Such maybe the case but the wrong of it all is that the applicants themselves are guilty of the oversight forming the basis of their complaint to this court. No resolution was produced before me to show that the first to third applicants are authorised to bring this action on behalf of the fourth respondent.

In seeking to lay a foundation for purporting to act on behalf of the fourth applicant, the first applicant had this to say in paragraph 2 of this founding affidavit.

“I am making this Affidavit on my own behalf and on behalf of the Fourth Applicant who is a Legal personae wherein I am the Managing Director and Shareholder respectively and in that capacity I am authorised to make the following statements on behalf of the Fourth Applicant”

Needless to say this is woefully inadequate to clothe the deponent with authority to make any statement on behalf of the fourth applicant. The paragraph does not even attempt to lay a basis for holding that the bringing of proceedings in the name of the fourth applicant is authorised …. The first to third applicants have expressly averred in their respective affidavits that they also bring this application on their own behalves as directors and shareholders of the fourth Respondent.”

On appeal against the Madzivire case supra Cheda JA had this to say,

“A company being a separate legal person from its directors cannot be represented in a legal suit by a person who has not been authorised to do so.  This is a well established legal principle which the courts cannot be ignored. It does not depend on the pleadings by either party. The fact that the person is the managing director of the company does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so. The general rule is that directors of a company can only act validly when assembled at a board meeting. As exception to this rule is where a company has only one director who can perform all judicial acts without holding a full meeting.”

From the foregoing it is clear that a person who is representing a legal entity should show that he is authorised to do so. The fact that he used to represent the company before is not enough. He did not prove that she was authorised to represent the applicant in every case. She should have produced board resolution to show that the board was aware of these proceedings and that she had been given the authority to act instead of the entity.

The fact that he used to be employed as the CTU Administrative Director does not give her the authority to represent the company.

In the absence of this authority the affidavit before this court is irregular and cannot be accepted by this court. In the absence of this authority the point in limine must therefore succeed.

Whether or not the hybrid application is invalid

The Respondent has submitted that the hybrid application is not permitted in the Rules. The application for leave to appeal is governed by Rule 43.

I do agree with the Respondent’s submission that there is no rule that provides for hybrid applications. Furthermore in the founding affidavit the applicant was only dealing with the history of the matter and there is no mention of prospects of success.

This application is on the clumsy side. The application for condonation should have been made before applying for leave to appeal.

In the circumstances I make the following order,

The points in limine raised by the Respondent be and are hereby upheld.

Gill, Godlonton & Gerrans, applicant’s legal practitioner

Lovemore Madhuku Lawyers, respondents’ legal practitioners