In chambers in terms of Rule 5 of the Supreme Court Rules.
The applicant seeks an order granting it leave to appeal
against a judgment of the Labour Court as well as condonation of its failure to
note an appeal on time, and an extension of time within which to note the appeal.
The crux of the matter is that the Labour court dismissed
the applicant's appeal on the preliminary point raised, namely, that the
applicant as a Workers Committee, has no locus standi to represent its members
in a court of law.
In arriving at this conclusion, the Labour Court followed
the judgment in CT Bolts (Pvt) Ltd v
Workers Committee SC16-12 where it
was decided that a workers committee, established in terms of section 23 of the
Labour Act [Chapter 28:01] (“the Act”), is not empowered by the Act to act
as a legal persona.
Counsel for the applicant, however, submitted that the
applicant is not a workers committee established in terms of the Labour Act [Chapter
28:01] but a creature of its own constitution; a copy of which was attached to
the papers and which contains the following relevant clauses:
“2. Perpetual Succession
The organisation shall have perpetual succession and shall
be entitled to sue or be sued in its own name.
3. Objects
The objects of the organisation are;
(a) To promote the interests of its members in so far as
their employment with the City of Gweru is concerned.
(b) To represent its members in any matters and/or disputes
concerning their employment with the City of Gweru.
(c) To undertake any activities that may be lawfully
undertaken by any organisation such as this as per the provisions of the Labour
Act (Cap 28:01) and the Regulations made thereunder, and in terms of any other
laws relevant to employment in Zimbabwe.”
The question to be determined is; what are the prospects of
success on appeal in view of the CT Bolts (Pvt) Ltd v Workers Committee SC16-12 judgment?
In that judgment, it was said:
“Under the common law, an un-incorporated 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 that has no constitution is not a universitas for it is the constitution that
determines whether an association is or is not a universitas.”
The applicant claims that by virtue of its constitution it
is a universitas endowed with the
attendant powers at law.
While it was my initial view that the application should
fail because of the decision in CT Bolts (Pvt) Ltd v Workers Committee SC16-12; upon further reflection, I am
now of the view that it is quite possible that the Court may take the view
proffered by the applicant, namely, that by virtue of its constitution it is a
universitas with the locus standi to represent its members.
For this reason, I am unable to hold that there are no
reasonable prospects of success on appeal.
Accordingly, the application is granted in terms
of the draft order filed, as amended.
