CHAMBER
APPLICATION
BHUNU
JA:
[1]
This is an opposed application for condonation and extension of time
within which to note an appeal. The application is brought in terms
of Rule 43 of the Supreme Court Rules 2018.
POINTS
IN LIMINE
[2] At
the commencement of the hearing of this application, the respondent
raised a point in
limine
protesting against the authenticity of one Patricia Darangwa to
represent the applicant in legal proceedings. They questioned the
validity of the resolution appointing her to represent the applicant
on the basis that there was another resolution appointing a different
person to represent it.
[3]
The law is clear. A legal entity can only be represented by an
authorized natural person in legal proceedings. In
Madzivire
& Ors v Zvarivadza & Ors
2006
(1) ZLR 514 (S) it was held that a company, being a separate legal
persona
from
its directors, cannot be represented in a legal suit by a person who
has not been authorised to do so. In
casu,
the applicant has however attached the minutes of the meeting that
granted her authority to represent the applicant. From those minutes
it is clear that three officials of the applicant were authorised to
represent the applicant and Patricia Darangwa is one of them.
Consequently, the challenge to the notice of opposition in this
respect lacks merit.
[4]
During the course of the hearing only the signature of the erstwhile
president removed from office under acrimonious circumstances was
challenged leaving three other signatures virtually unchallenged.
Counsel for the respondent explained that in the circumstances the
then President left office, they were unable to get confirmation of
his signature. That submission was not challenged by the respondent.
I then made the following ruling:
“Considering
that the majority of the signatures to the resolution are not
challenged, I come to the conclusion that the resolution authorising
Ms Chiyangwa to represent the applicant is authentic. The point
in
limine
is accordingly dismissed.”
[5] That
ruling still stands.
BACKGROUND
FACTS
[6] The
applicant is a National Employment Council duly established in terms
of the Labour Act [Chapter
28:01].
Its mandate is to regulate employment matters within the Engineering,
Iron and Steel Industry. It has an elaborate dispute resolution
mechanism for employers and employees falling under its ambit. On the
other hand the respondent is a trade union covering employees in the
Iron and Steel industry.
[7] The
parties are embroiled in a dispute over the scope or extent of the
respondent's membership. The applicant's certificate of
registration designates its scope of interests as “ENGINEERS”.
Its scope of operations therefore covers engineers.
[8] The
applicant approached the High Court (the court a
quo)
seeking a declarator and consequential relief. The applicant's
complaint was that the respondent was using its dispute resolution
mechanisms to represent employees who are not engineers. In other
words, the complaint was that the respondent was using its designated
agents to resolve issues of employees who were not engineers. It
averred that its designated agents had no jurisdiction to preside
over disputes involving employees who are not NEC graded.
[9] On
the other hand, the respondent contended that the applicant has
no business in preventing trade unions and those who subscribe to a
particular trade union, from
using applicant's quasi-judicial structures for redress.
This
is because workers have a statutory and constitutional right to
belong to trade unions of their choice.
FINDINGS
OF THE COURT A
QUO
[10] The
court a
quo
found in favour of the respondent's argument and held that
employees had a right to join any trade union of their choice whose
scope of operations covers their industry. Consequently, it dismissed
the applicant's application with costs.
[11] Aggrieved
by the dismissal of its application, the applicant sought to appeal
to this Court but was out of time, hence this application for
condonation of late noting of appeal and extension of time within
which to appeal.
RELIEF
SOUGHT
[12] The
applicant seeks the following relief:
1.
The application for condonation for non-compliance with Rule 38 of
the Supreme Court Rules, 2018 be and is hereby granted.
2.
The application for extension of time within which to file and serve
a notice of appeal in terms of the rules be and is hereby granted.
3.
The Notice of Appeal which is annexure "C" to this
application shall be deemed to have been filed on the date of this
order.
4.
Each party shall bear its own costs.
THE
LAW
[13] The
requirements for an application of this nature to succeed are well
known. These were listed in Forestry
Commission v Moyo 1997 (1) ZLR 254 (S)
by GUBBAY CJ, as follows:
(a)
That the delay involved was not inordinate, having regard to the
circumstances of the case;
(b)
That there is a reasonable explanation for the delay;
(c)
That the prospects of success should the application be granted are
good; and
(d)
The possible prejudice to the other party should the application be
granted.
THE
LENGTH OF DELAY AND EXPLANATION FOR THE DELAY
[14] The
judgment of the court a
quo
was granted on 18 May 2022. The applicant ought to have noted its
appeal within 15 days from the date of the judgment. The application
for condonation was filed on 3 August 2022, three months after the
lapse of the dies
induciae.
In my view the delay is not inordinate having regard to the
explanation for delay.
[15] The
applicant's explanation for delay is that when the judgment of the
court a
quo
was handed down some of its secretaries were not available to approve
the decision to appeal against the judgment a
quo.
In my view the explanation for the default is reasonable considering
the magnitude of the applicant organisation.
PROSPECTS
OF SUCCESS
[16] The
basis of the applicant's appeal is that the court a
quo
erred by allowing the respondent to represent employees who do not
fall within its scope of operations. On its part the respondent
denies that it is representing employees who fall outside its scope
of operations. The onus was on the applicant to prove on a balance of
probabilities that indeed the respondent was representing employees
outside its scope of operations. The nub of the applicant's appeal
is that the respondent's scope of operations does not cover
engineers. The respondent countered that it was entitled to represent
non-managerial engineers who were its members.
[17]
In opposing the applicant's claim, the respondent placed heavy
reliance on the case of Jack
v
National Employment Council for the Engineering and Iron and Steel
Industry
HH
204-19. In that case the court a
quo
held that the respondent was entitled to represent its members. In
that case the court had this to say:
“As
shown above, the trade union involved in this case is for the
industry or undertaking under which the third respondent falls. Its
name says so but, in any case evidence shows the involvement of the
respondents in cases in which the trade union has been involved. It
is not
for the conciliation tribunal to choose for or dictate to an employee
the particular trade union to join as long as the trade union which
the employee joins is for the undertaking or industry in which he is
employed. Such conduct as displayed by the respondents in objecting
to the applicant's membership of the trade union of his choice is a
violation of the applicant's rights as enshrined in section 65(2)
of the Constitution of Zimbabwe and in section 4(1)(a) and (2) and
section 50(1) of the Labour Act [Chapter
28:01],
and is unlawful. Applicant's
evidence shows that he is a member of the General Engineers,
Engineering Maintenance and Civil Engineering Workers Union. That
membership entitles the applicant to all the rights and privileges of
a member, including the right to seek advice from and be represented
by the trade union or its officials in any labour dispute whether
that dispute is at the conciliation stage or some other stage. The
trade union has the right to be heard on behalf of its members as
well.”
(My emphasis).
DISPOSAL
[18] In
the absence of any argument that the above case was wrongly decided
or distinguished from the instant case, it is difficult to fault the
learned judge a
quo
for following laid down precedence. Indeed the learned judge a
quo
was correct in premising his judgment on the basis that both the
Constitution and the Labour Act confer on employees the right to join
trade unions of their choice. I therefore hold that there are no
reasonable prospects of success on appeal. Costs follow the result.
[19]
It is accordingly ordered that the application be and is hereby
dismissed with costs.
Caleb
Mucheche and Partners, applicant's legal practitioners
Hungwe
and Partners, respondent's legal practitioners
