Zimbabwe National Road Administration v Grant Chirau & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/21/2021
HARARE, 08 JULY, 2020
CASE NO. LC/H/REV/04/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/21/2021

HARARE, 08 JULY, 2020		     	     CASE NO. LC/H/REV/04/20

AND 26 MARCH, 2021

In the matter between:-

ZIMBABWE NATIONAL ROAD ADMINISTRATION			Applicant

Versus

GRANT CHIRAU								1st Respondent

ZINARA APPEALS COMMITTEE					2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				Kadzere, Hungwe & Mandevere

For Respondents:				In Person

HOVE J:

This is an application for review against the decision of the appeals committee of the applicant.

The 1st respondent was an employee of the applicant before he was charged with misconduct it being alleged that he had wilfully refused to comply with established procedure/standing instructions or alternatively, failure to take disciplinary/grievance action.

A hearing was conducted by the applicants’ disciplinary committee which found the 1st respondent not guilty. The applicant appealed to 2nd respondent. The 2nd respondent heard the appeal and came up with a determination that is the subject of this application for review.

The parties appear to be agreed that “the outcome of the appeal hearing” is an irregular way to present a decision of an appeals committee. Each of the three member panel wrote their own decision and the three decisions were presented as the outcome of the appeal hearing. The applicant was aggrieved with this procedural issue and filed this application for review seeking that the matter be remitted to the applicant’s appeals committee and the matter to be heard denovo.

The 1st respondent opposed the application and raised the preliminary points to the following effect that:

The application is improperly before the court as it was served 11 days after being lodged with the Registrar of this honourable court instead of 5 days prescribed by the Labour Court rules, 2017.

The application is a nullity since he, the respondent has not been served with the decision of the Disciplinary appeals committee.

Other preliminary points were raised during the hearing and these were that;

Applicant is suing a non existant party, a party who is not recognized as a person in law either natural or juristic.

The 2nd respondent (zinara appeals committee) is alleged to be neither a juristic person nor a natural person and can therefore not sue or be sued. It is not a legal persona and has no capacity to sue or be sued in its own name.

The applicant is suing itself.

The applicant has failed to exhaust domestic remedies.

There is no prayer to have the three decisions set aside therefore the court cannot remit.

I will consider the preliminary points one after the other.

Application was served 11 days after being lodged with the Registrar instead of 5 days as required by the Rules

The applicant admits that it served the application outside the required 5 days. It however made an oral application for condonation. The reason given for the delay was that they were failing to locate the 1st respondent’s residential address. They also submitted that the delay was not inordinate and that the 1st respondent suffered no prejudice. They also argue that they have good prospects of success on the merits.

The court considered that the delay was not inordinate, the explanation for the delay is reasonable and there really was no prejudice suffered by the 1st respondent. The case of Tichawana Nyahuna v Barclays Bank SC 67/05 states that it is not every irregularity that vitiates proceedings the otherside must show that they have suffered prejudice. In casu, the 1st Respondent has not been able to show that it suffered any prejudice. The interests of justice will be best served by the condonation of the late service. The application for condonation is accordingly granted.

Application is a nullity since the 1st respondent was not served with the appeals committee’s determination

This preliminary point was not persisted with in argument and the court is of the view that the 1st respondent abandoned it.

The applicant is suing a non existant party

It has been argued that the 2nd respondent is neither a natural person nor a juristic person. It has no capacity to sue or be sued.

The applicant submitted in response that this is a technical issue that should not defeat the application. The applicant argued that not only is the point raised technical, it is also academic and should not defeat the application. The matter should be disposed of on the basis of its merit reliance for this proposition was placed on the case of POSB Workers Committee v POSB LC/H/16/12.

It was further submitted that the 2nd respondent is an independent and impartial body whose decisions and proceedings can be challenged by either of the parties.

The applicant, I think misses the point raised in this preliminary point. The challenge is not that the 2nd respondent is not an independent body nor that it is not an impartial body.

The challenge is that it has no capacity to sue or be sued, it is neither a natural person nor a juristic person.

The 1st respondent argued further that in the case of CT Bolts v Workers Committee (SC 91/11). The principle was clearly established by the honourable Judge of appeal (as he then was) in the following terms;

“Under the common law, an unincorporated association, not being a legal persona, cannot as a general rule, sue nor be sued in its name apart from the individual members, whose names have to be cited in the summons---

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.”

In casu, it has not been disputed that the 2nd respondent is neither a natural person nor a legal persona and therefore cannot sue or be sued.

The only respondent who is properly before the court is the 1st respondent. The applicant however is seeking relief not against the 1st respondent but against the 2nd respondent which cannot sue or be sued. The relief is being sought against a non existant party. This, in my considered view, makes the application improper. The applicant ought to have sued the members of the 2nd respondent in their personal capacity as individual members. See the CT Bolts case supra. Suing a non existant party makes the application fatally defective.

Alleged failure to exhaust domestic remedies and the failure to pray for the setting aside of the proceedings and the 3 outcomes need not be considered now in view of my finding in relation to the 2nd preliminary point.

Accordingly, the preliminary point is upheld and the application is dismissed with costs.

Kadzere, Hungwe & Mandevere	- 	Applicant’s Legal Practitioners