KUDYA
J:
This
matter raises issues that have been canvassed in such cases as Benson
Samudzimu v
Dairibord Holdings (Pvt) Ltd
HH204/10; Sibangilizwe
Dhlodhlo v
Deputy Sheriff of Marondera & Ors
HH76/11;
Ericson
Mvududu
v Agricultural and Development Authority
HH286/11; and Gaylord
Baudi v
Kenmark Builders (Pvt) Ltd
HH 4/12.
In
the present matter, the Works Council, consisting of management and
workers committee members of the respondent met on 6 June 2011.
Present as observers were also two representatives of the National
Education Union of Zimbabwe. The Collective Bargaining Agreement
reached was inter
alia
to pay a proportion of the money set aside for housing and car
purchasing loans as housing allowance. This aspect of the agreement
was not implemented.
The
matter was referred to conciliation and arbitration in terms of
section 93 the Labour Act [Cap
28:01].
On
15 November 2011 an arbitrator appointed in terms of the Labour Act
made an arbitral award directing the Works Council to convene within
10 days of the order and agree on appropriation of a proportion of
US$420,000-00 Housing Loan Fund as housing allowance failing which
they were to reset the matter before him for quantification.
In
the arbitration proceedings, the present applicant was the claimant
and the present respondent was the respondent.
The
parties did not meet.
The
respondent appealed the order while the applicant applied for
quantification. The applicant set out a Statement of Claim amounting
to US$397,381-80 duly divided amongst the applicant by grade. On 12
January 2012, after considering the written submissions of the
parties, the arbitrator granted the applicants relief in terms of its
Statement of Claim.
On
20 February 2012, the applicant applied to this court in terms of
section 92B(3) as read with 98(14) of the Labour Act for the
registration of the quantification of 12 January 2012 and costs of
suit.
The
application was opposed on 29 February 2012.
The
respondent raised a number of preliminary issues.
(i)
The first was that the applicant was not a legal persona
and could not register a judgment in that name.
(ii)
It also averred that the Workers Committee that authorised the
deponent to its founding affidavit was not a legal persona
and thus lacked legal standing to authorize registration of the
award.
(iii)
It further averred that the award in the record was not the original
or a certified copy of the original order as contemplated by Article
35(2) of the Arbitration Act [Cap
7:15].
(iv)
Lastly it averred that the award was appealed against both before
quantification and after quantification in LC/H/28/12.
On
the merits the respondent contended that it was against public policy
of Zimbabwe to award an amount calculated by non-managerial
employees, which was no longer available and would cause a huge
financial loss.
The
answering affidavit dealt with the preliminary points on locus
standi
and disputed inability to pay averring that the Works Council agreed
on the utilization of the Housing Loan Fund that was available.
The
arbitrator noted their availability on the date of the Collective
Bargaining Agreement and refused to reward the respondent for
attempting to deliberately place them beyond the reach of the Works
Council after the Collective Bargaining Agreement had been reached.
It
seems to me that the present application flounders on the rock of the
first preliminary issue raised.
The
question of legal persona
of a workers committee was conclusively dealt with by the Supreme
Court in CT
Bolts (Pvt) Ltd v
Workers Committee
SC16/12. In that case GARWE JA with the concurrence of ORMEJEE and
GOWORA AAJA surveyed the provisions section 23 and 24 of the Labour
Act that provide for the institution and functions of a workers
committee. He noted that the Act did not make provision for the
workers committee to operate as a legal persona.
It had not provided for the adoption of a Constitution or acquisition
of assets by the workers committee in contrast to section 28 and 29
of the Act that instituted every trade union, employer's
organisation or federation into a corporate body on registration.
The
LEARNED JUDGE OF APPEAL confirmed the correctness of the sentiments
expressed by KAMOCHA J in CSC
Co National Workers Committee v
CSC Co Ltd
2002 (1) ZLR 133 (H) at 142H-143A that “the legislature did not
give the workers committee the right to sue or to be sued like it did
to the employment council.”
He
stated at p2 of the judgment that:
“The
issue of the legal status of the respondent assumes greater
significance in a case as this one where there could be issues of
costs involved. Under the common law, an unincorporated association,
not being a legal persona,
cannot as a general rule, sue or be sued in its name apart from the
individual members, whose names have to be cited in the summons.
A
universitas
on the other hand has the capacity, apart from the rights of the
individuals forming it, to acquire rights and incur obligations. The
position is also established that a body corporate that has no
Constitution is not a
universitas
for it is the Constitution that determines whether an association is
or is not a universitas.”
See
also Privatisation
Agency of Zimbabwe & Anor v
Ukubambana
Kubatana Investments (Pvt) Ltd & Anor 2003
(1) ZLR 433 (S) at 436B-G on the four constituent elements of a
universitas.
At
p3 GARWE JA held that:
“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.”
It
is conceded in the answering affidavit by the deponent to the
founding affidavit that the citation of the applicant as ZIMSEC
EMPLOYEES was wrong. The deponent averred and counsel for the
applicant contended that the citation was a technicality that had
been dismissed by the arbitrator on the basis of the 147 names and
signatures on page 45 to 48 of the record of proceedings who
constituted a portion of 245 employees who comprise the applicant.
The
basis for the citation of the applicant before the arbitrator and in
the present application in this format was based on convenience.
The
citation of Workers Committee as a party in proceedings is replete in
our jurisdiction. It is found in such cases as
Thomas Meikles Centre (Pvt) Ltd v
TM National Workers Committee & Ors
SC77/02; Olivine
Industries (Pvt) Ltd v
Olivine
Workers Committee
2002 (2) ZLR 200 (S); and Sagittarian
(Pvt) Ltd v
Workers Committee, Sagittarian (Pvt) Ltd
2006 (1) ZLR 115 (S).
At
p3 of CT
Bolts
case supra,
GARWE JA was aware that the Supreme Court had in those cases
“proceeded on the basis that the workers committee cited in the
appeal proceedings was properly before it and that the issue of the
legal status of the workers committee had not, however, been raised
and consequently a determination of the legal status of the workers
committee never became necessary.”
It
is apparent from the concessions made by the deponent to the
applicant's affidavit and from its counsel that Zimsec Employees is
not a universitas.
It was a convenient appellation of 245 employees in Grade 2 to 8 of
the first respondent. The list of names and signatures fall short of
an affidavit of collegiality as defined and applied by BERE J in
Mabvadya
v
Chegutu Rural District Council & Ors
HH34/05 at p 4-5 and SMITH J in
Olive Mazvita Gudza v
University of Zimbabwe
HH85/95.
The
applicant is not a juristic person. It thus lacked capacity to
represent the 245 employees before the arbitrator and this Court. It
is not properly before this court. Its proceedings in that name
before the arbitrator and before this Court are void.
On
the basis of the above finding, it is not necessary to determine the
other preliminary issues raised and the merits of the application. As
the applicant is not a juristic person, an order that there be no
order of costs would meet the justice of this case.
Accordingly,
the proceedings are struck off the roll with no order as to costs.
Mangwana
and Partners,
applicant's legal practitioners
Dube,
Manikai and Hwacha, first
respondent's legal practitioners
