Chamber Application
BHUNU J: The applicant
obtained an arbitral award in terms of the Labour Act [Cap
28:01] in the
following terms:
“Wherefore after carefully
analyzing the facts and the law, I make the following award:
1. That Claimant is hereby
reinstated as a permanent worker to his position without loss of
salary or benefits with effect from the date of dismissal.
2. That if reinstatement is not
an option, the Claimant should be paid damages of US$16,184-00 within
thirty (30) days from the date of the arbitral award.”
The arbitrator Mr. Munyaradzi Dangarembizi duly signed and
authenticated each page of his reasons for registration with the High
Court. The section provides as follows:
“(14) Any party to whom an
arbitral award relates may submit for registration the copy of it
furnished to him in terms of subsection (13) to the court of any
magistrate which would have had jurisdiction to make an order
corresponding to the award had the matter been determined by it, or,
if the arbitral award exceeds the jurisdiction of any magistrates
court, the High Court.
(15) Where arbitral award has
been registered in terms of subsection (14) it shall have the
effect, for purposes of enforcement, of a civil judgment of the
appropriate court.”
Mr. Thomas
Vallance submitted a
copy of the respondent's opposing affidavit in his capacity as
agent of the respondent authorized thereto by a special power of
attorney granted to him by the company's Managing Director one
Mohamed Hafiz- Abdulla.
The position in our law is
however that a company not being a fictitious legal persona it cannot
act on its own. There is therefore need for a company resolution to
legalize and validate any company acts as observed by MAKARAU J in
Tapson Madzivire and 3
Others v Misheck Brian Zvarwadza and 2 Others HH 2005. In
that case the learned judge observed 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 a company a resolution duly passed
by the Board of Directors of a company has to be produced to show
that the fictional person has authorized the act.”
(My emphasis).
I am in respectful agreement with her ladyship's observation.
In this case the purported
company agent produced a power of attorney granted to him by the
company's Managing Director. A power of attorney is however no
substitute for a company resolution.
In that case even if the Managing
Director Mr. Abdulla had appeared in person before the court he would
still have been required to produce a company resolution as proof
that the company had authorized him to do what he is attempting to do
on its behalf. Without a company resolution Mr. Vallance
is merely representing the Managing Director's position and not
that of the company.
The second hurdle for Mr.
Vallance
arising from the company's inability to represent itself is that
generally speaking a company can only be represented by a legal
practitioner in the superior courts.
Save in exceptional
circumstances, section 9 of the Legal Practitioners Act [Cap.
27:07] prohibits and
criminalizes anyone who represents another in legal proceedings
without being a legal practitioner in possession of a valid
practicing certificate. See Lees
Import and Export (Pvt) Ltd v Zimbank 1999 (2) ZLR 36 (S).
In the result I hold that the respondent not being properly
represented in these proceedings the application should be treated as
unopposed.
Wherefore after perusing documents filed of record and hearing the
Applicant it is accordingly ordered:
1. That the arbitral award of 17
May granted by the arbitrator Dangarembizi be and is hereby
registered as an order of this Court.
2. That the Respondent is hereby
ordered to pay E. Dendeuka damages in lieu of reinstatement in the
sum of US$16,184.00 (sixteen thousand one hundred and eighty–four
United States Dollars) within seven days of receipt of this order.
