The appellants are trade unions registered in terms of the
Labour Act [Chapter 28:01. The first respondent is Air Zimbabwe Holdings
(Private) Limited, a company duly incorporated according to the laws of
Zimbabwe, and the holding company of the second respondent (Air Zimbabwe), also
a private company incorporated according to the laws of Zimbabwe.
In January 2011, Elijah Chiripasi and Alexander Ngoni Guchu,
purporting to act on behalf of the first and second appellants, respectively,
filed a court application in the High Court seeking an order for the
provisional judicial management of the first and second respondents on the
basis that the respondents were indebted firstly, to members of the appellants
in respect of arrear salaries, and, secondly, to the appellants themselves in
respect of unremitted union dues.
It was the appellants' contention that the two respondents
were, by reason of mismanagement, unable to pay their debts and that if placed
under judicial management they could become capable of fulfilling their
respective obligations.
The application was opposed by the respondents who raised
three points in limine, namely:
1. That the deponents of the founding affidavits did not
have the authority of the applicants (appellants in this appeal) to make the
application since no resolution given by the membership of the applicants was
attached to the founding affidavits.
2. That the applicants had no locus standi to make the
application in the absence of compliance with the provisions pertaining to
demand laid down in section 205 of the Companies Act.
3. The application was vague and embarrassing in that:-
“6.4.1. It is not clear from the founding papers what
relationship the appellants are alleging to have with each of the respondents.
6.4.2 It is also not clear which of the respondents it is
alleged has failed to meet the alleged liabilities.
6.4.3 Applicants have not established the nature of
their relationship with each respondent nor specified the liabilities of each
respondent.
6.4.4 Being separate and distinct legal entities, the
respondents are accordingly inhibited from understanding the case or cases that
each of them has to answer.”
The respondents also averred that a number of members of
both appellants had distanced themselves from the application which they
regarded as a personal decision of the deponents to the founding affidavit.
The court a quo accepted, as a general principle, that the
appellants, as trade unions, are corporate entities which could sue and be
sued. It identified the issues to be determined in limine as:
(a) Whether the appellants had been authorised by their
membership to institute the proceedings; and secondly,
(b) Whether the deponents to the founding affidavits had
done so with the authority of the appellants.
(c) Whether proceedings were instituted prematurely.
Regarding issues (a) and (b) above, the court made the following
findings:
1. The appellants had attached no documents in support of
their contention that they were authorized to institute the proceedings.
Instead, they had attached to the answering affidavits two sets of documents;
Annexures A & B, after perusal of which the court noted:
(a) That the bulk of the documents were signed after
the filing of the application.
(b) The documents in Annexure B only authorized the
appellants to represent the signatories in the recovery of arrear salaries and
did not authorize them to institute judicial management proceedings.
(c) Thirdly, that the number of signatories in Annexure A
which purported to authorize the appellants to institute the proceedings did
not constitute a simple majority of the appellants' membership.
(d) That Annexure A reflects that the signatories are
employed by Air Zimbabwe Holdings (first respondent) and yet they are in fact
employed by the second respondent (Air Zimbabwe).
(e) The documents in Annexures A & B authorize first
and second appellants to do various acts and yet the signatories are not
members of both unions.
(f) Both Annexures do not authorize the deponents to depose
to the affidavits.
It concluded that not only had the deponents not derived
their authority to institute these proceedings from the membership of the
appellants, but the appellants themselves had not obtained a mandate from the
majority of their membership to institute the present proceedings whether by
resolution or otherwise.
It therefore upheld the points in limine and dismissed the
application.
Dissatisfied with this order, the appellants have appealed
to this Court contending that the finding by the court a quo, that the
appellants had not established their locus standi to bring these proceedings,
was wrong in law.
The gist of counsel for the appellants' submissions before
us is that the averments in the founding affidavits as to the positions held by
the deponents in the appellants as well as the fact that the appellants are
trade unions was sufficient to establish the authority of both appellants to
institute these proceedings and of the deponents to attest to the founding
affidavits.
It seems to me that counsel for the appellants misconceived the basis of the court a
quo's decision. The finding of the court a quo was not that the appellants, as
trade unions, could not sue on behalf of their membership but rather that the
deponents had not established that they had authority, either from the
appellants or their membership, to bring these proceedings. A reading of the appellants'
founding affidavit and the evidence before the court a quo cannot possibly
justify any other conclusion.
Further, in terms of section 29 of the Labour Act [Chapter
28:01], a registered trade union acts in terms of its Constitution. It is the Constitution
which must make provision regarding the person(s) authorized to institute
proceedings on its behalf and the manner in which such authority is to be
given. Because the constitutions of trade unions may differ, it is important to
refer to the Constitution in each case in order to determine whether authority
to institute or defend proceedings has been properly granted.
The appellants placed no reliance on the Constitution nor
did they attach a copy thereof to the application.
For the above reasons, we are of the view that
the appeal lacks merit. It is accordingly dismissed with costs.
