Before
MALABA DCJ, in Chambers in terms of
r 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975. It is
opposed.
The parties concluded a
collective bargaining agreement but did not register it. The respondent
proceeded to pay salary and benefits to all managerial employees as provided
for in the collective bargaining agreement for two months. After two months,
the respondent changed course and reduced the salary and benefits. The applicant
was aggrieved by this move and approached an Arbitrator who ruled in favour of
the respondent. The applicant appealed to the Labour Court which upheld the
decision of the Arbitrator to the effect that the collective bargaining
agreement entered between the parties was invalid and not binding. The Labour
Court and the Arbitrator arrived at that decision on the ground that a
collective bargaining agreement is a product of the application of the
provisions of the Labour Act [Cap. 28:01]
and as such can only come into existence and have binding force upon strict
compliance with the statutory provisions.
The applicant which at that
time was a registered trade union was dissatisfied with the Labour Court decision. It appealed against that decision to the
Supreme Court. It however did not file a valid notice of appeal and the matter
was struck off the roll with costs on 31 July 2015. The applicant now seeks the indulgence of the
court to appeal out of time. The papers show however that this application was
made for what is called an 'application for condonation and reinstatement of an
appeal on 2 November 2015 in the name of the applicant.
It is common cause that
the applicant has since ceased to exist as a trade union. There was no
disclosure in the founding affidavit of the fact that there was no longer an
entity going by the name of the applicant. It only became apparent during the
hearing of the application that the entity that had appeared before the Labour
Court in the name of the applicant had ceased to exist.
Mr Maguchu who appeared for the respondent raised a number of
objections to the application. The most important point taken by Mr Maguchu was that there was no proper
application before the court because the entity seeking to invoke the
protection of the law does not exist. Professor Madhuku who appeared for the applicant, whilst conceding that the
entity that appeared before the Labour Court no longer exists, indicated that
there is in existence a trade union going by the name National Energy Workers
Union who took over the rights and obligations of the defunct entity which
appeared before the Labour Court. Until Professor Madhuku disclosed the information in his address to the court there
was no disclosure in the papers of the existence of the new trade union. No mention
of it had been made in the founding affidavit.
Mr Maguchu pointed out that there should have been an application by
the new trade union for an order of substitution of the party to enable the new
trade union to claim the rights and obligations of the former trade union in
the proceedings. As matters stand the new trade union remains without any right
to make any claim in the proceedings.
The issue before the Court
is whether the application was validly made by a non-existing entity. The starting
point here is section 29(2) of the Labour Act [Cap. 28:01] (“the Act”) which provides:
“Every trade union,
employers organisation or federation shall, upon registration, become
a body corporate and shall in its corporate name be capable of suing and being
sued, of purchasing or otherwise acquiring, holding or alienating property,
movable or immovable, and of doing any other act or thing which its
constitution requires it to do, or which a body corporate may, by law, do.” (underline
my emphasis)
It is clear from the
reading of s 29(2) of the Act that once a trade union is registered it becomes
a body corporate, having the power to sue or be sued. It is also true that only
an existing corporate body has the capacity to sue or be sued. Once an entity
ceases to exist, it loses its capacity to sue or be sued. It ceases to enjoy
any of the rights enjoyed by a registered body corporate. Upon dissolution a
trade union ceases to enjoy the rights enjoyed by registered trade unions and
as such becomes a non-existing entity which lacks the capacity to institute
proceedings and claim rights. No
obligations can be enforced against a non-existent entity.
Although the Act does not
expressly provide for the effect of dissolution of a trade union, it can be
noted from the reading of s 29(2) that once a trade union is dissolved it
ceases to be a body corporate and therefore it loses the rights which a
registered trade union enjoys. These rights include the right to sue or be sued
which rights can only be exercised by a body corporate.
The case of National Entitled Workers Union (NEWU) v Commission for Conciliation,
Mediation and Arbitration and Others [2010] ZALC 155 is instructive on this
issue. The court said the following:
“The other
important principle from the CCMA's case, which has not been stated in so many
words, is that the de-registration of a trade union does not dissolve that
union as a voluntary association. This means a de-registered trade union is entitled
to continue its existence in terms of the right to Freedom of Association. A de-registered trade union does however;
lose certain rights accorded to it by virtue of registration in terms of the
LRA. One of the rights which a deregistered trade union loses due to
de-registration is the right to represent its members before all the statutory
dispute resolution bodies. In respect of the court, a de-registered trade union
loses its right of appearance accorded to it in terms of s161 of the LRA.” (underline my emphasis)
C. Wilfred Jenks, in his
book The International Protection of
Trade Union Freedom at page 303 has the following to say:
“In a case
relating to New Zealand the deregistration of a trade union has the effect of
revoking privileges, such as legal recognition, the right to conclude legally
enforceable collective agreements and the exclusive right to represent the
workers at all stages of conciliation and arbitration procedure,….”
From the above it is
clear that once a trade a union is dissolved it loses certain rights that a
registered trade union in terms of section 29(2) of the Labour Act enjoys.
These rights include the right to sue or be sued. The entity presented as the applicant lost
the rights bestowed to it in terms of s 29(2) of the Act the moment it was
de-registered and as such cannot bring proceedings before the Court.
The inquiry in this case goes to the
issue of what happens to the proceedings instituted by a non-existing entity.
It is trite that where a non-existing entity institutes proceedings, the
proceedings are a nullity because there would be no applicant or plaintiff as
the case may be.
In the case of Stewart Scott Kennedy v Mazongororo Syringes
(Pvt) Ltd 1996 (2) ZLR 565 (S) at page 572, the court said the following:
“Without
a plaintiff there can be no claim. A document which purports to be a summons
requiring the defendant to comply with a claim of a non-existent person is null
and void as far as the institution of the claim is concerned. The plaintiff is
the one who issues the challenge to litigation (see Voet 5.1.9) and must be a
persona.”
Although the court in the
Mazongororo case (supra) was dealing
with action proceedings, the principle applies to application proceedings. Without an applicant there can be no claim.
As such, a purported founding affidavit sworn to by a person purporting to be
representing a non-existing entity is a nullity, because a person who swears to
a founding affidavit can only relate to the facts which came to his/her
knowledge at the time he/she is acting as the representative of an existing
legal persona. Resultantly, there can be
no proper application instituted on behalf of a non-existing entity.
Professor Madhuku, claimed that the rights and
obligations of the former trade union, Zesa Technical Employees Association,
has been taken over by the new trade union, National Energy Workers Union. The
question which then arises is whether the new trade union, if it has legally
acquired those rights and obligations, can claim them in these proceedings
without applying to be a party. For an entity to claim rights and obligations
of another entity in proceedings there has to be an application for
substitution of that party. If the new trade union became the successor to the
entity that appeared before the Labour Court and had assumed its rights and
obligations, there should have been an application for substitution of the new
trade union in the proceedings. Without such an application, the application
was brought by Zesa Technical Employees Association, a non-existing entity.
The need for an entity to
be joined or substituted before claiming rights has been noted by the courts.
In the case of Tel-One (Private) Limited
v Communications and Allied Services Workers Union SC-26-06, CHIDYAUSIKU CJ said that,
“It is quite clear
that s 29 of the Act, which the learned Judge relied on, confers on the
respondent the locus standi to sue and to be sued in its own name in matters
such as in casu. Section 29 of the Act, however, does not make a trade union
such as the respondent a party to proceedings which the trade union has not
commenced or in respect of which the trade union has not been cited or joined
as a party. Section 29 of the Act merely
confers on a trade union the right to sue or to be sued or to be joined as a
party to proceedings.”
Similarly, in the South
African case of Luxavia (Pty) Ltd v Gray
Security Services (Pty) Ltd 2001 (4) SA 211 (W), the court in granting the
application for substitution of a party, said that:
“There are several
cases where the substitution of one entity for another has been allowed in
order to ensure that the true plaintiff is before the court.”
The
position at law is therefore that, where a party to proceedings dies or ceases
to exist the claim is not extinguished. If another party wishes to proceed with the
claim, there should be made in terms of relevant rules of court an application
for substitution. It is not in dispute that the new trade union did not make an
application for an order of substitution. There is therefore no entity with
legal capacity to make the application for 'condonation and reinstatement of an
appeal' which had been struck off the roll. There is no applicant on whom the
court may grant the rights sought by way of the relief.
DISPOSITION
Matter is struck off the roll with no order as to
costs.
Dururu A and Associates, applicant's legal
practitioners
Dube, Manikai and
Hwacha, respondent's legal practitioners
