Zimbabwe Football Association v Nelson Matongorere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/97/2016
HARARE, 22 JANUARY 2016 &
4 MARCH 2016
CASE NO LC/H/714/2014
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/97/2016

HARARE, 22 JANUARY 2016 &			                 CASE NO LC/H/714/2014

4 MARCH 2016

In the matter between

ZIMBABWE FOOTBALL ASSOCIATION				APPLICANT

Versus

NELSON MATONGORERE						RESPONDENT

Before the Honourable B S Chidziva J

For the Applicant      R T Manganga (Legal Practitioner)

For the Respondent   P Nyeperayi (Legal Practitioner)

CHIDZIVA J:

This is an application for leave to appeal against the decision of this court to dismiss the applicant’s appeal against the decision of Honourable Arbitrator Professor Madhuku’s award that was handed down on 14 August 2014.

The applicant has submitted to this court that it has prospects of success on appeal in that:

This court erred at law when it made the finding that the appellant’s Disciplinary Authority was not properly constituted.

The court erred at law when it failed to distinguish a “disciplinary authority” from a disciplinary committee thereby wrongly ruling that the appellant’s Disciplinary Authority was a Disciplinary Committee.

The court failed to interpret S2 of SI 15/2006 to the detriment of the appellant.

The respondent in response raised a point in limine to the effect that:

The applicant is not an existing entity and as such it has no legal capacity to institute the present application.

The deponent to the applicant’s Founding Affidavit has no authority to depose to the same. The deponent requires the applicant’s board resolution.

The respondent stated that the issues raised in the opposing affidavit were not denied. In the case of Chihwai Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2009 (2) ZLR 89 it was stated that:

“The simple rule of law is that what is not denied in affidavits must be taken to be admitted”.

The respondent in its heads of arguments raised the issues that were not denied. The issues are as follows:

The applicant is non-existent as there is no institution called ZIFA.

The deponent to the applicant’s Founding Affidavit has no authority to depose to this one. Furthermore assuming that the applicant is intended to be Zimbabwe Football Association, the respondent submitted that Zimbabwe Football Association did not pass a resolution.

In view of the principle stated in the case of Chihwai Enterprises (supra) it is taken that the issues that have been raised are being admitted by the appellant.

The respondent raised the second point in limine and stated that there is no applicant before this court because the Resolution from ZIFA emanated from Cuthbert Dube only. In the case of Mall (Cape) (Pvt) Ltd v Merino Ko-operasie Bpk 1957 (2) ZLR 347 page 221 G – 222 B it was held that:

“The best evidence that the proceedings have been properly authorised would be to provide by an affidavit made by an official by the company annexing a copy of the resolution but I do not consider that that form of proof is necessary in every case. Each case must be considered on its own merits and the court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorised person on its behalf. Where as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the court, then I consider that a minimum of evidence will be required from the applicant.”

KUDYA J in the case of Zimbabwe Open University v Gideon Magaramombe HH 61-2012 stated that:

“I am satisfied that to insist on a resolution from the applicant that it resolved that the deponent file the founding affidavit on its behalf would be carrying formality too far.”

The deponent Jonathan Mashingaidze in his affidavit stated that:

“I am the applicant’s General Secretary and have been authorised by the President of the applicant to represent the applicant association”.

The respondent during the hearing before the arbitrator addressed the applicant as ZIFA and Jonathan Mashingaidze as the Chief Executive Officer of ZIFA. Furthermore the ZIFA Board Emergency Committee meeting that was held on 10 November 2012 clearly show that Cuthbert Dube was the President of ZIFA.

In view of this evidence to insist on a resolution from the applicant that it resolved that Jonathan Mashingaidze file the founding affidavit on its behalf would be carrying formality too far.

To that end therefore this court finds that the points in lime lack merit.

Accordingly I order as follows:

The points in limine be and are hereby dismissed with costs.

The Registrar is directed to set down the application for leave to appeal for hearing.

Maganga & Company, appellant’s legal practitioners

Costa & Madzonga, respondent’s legal practitioners