MASUKU v DELTA BEVERAGES 2012 (2) ZLR 112 (H)

Flynote

Practice and procedure — declaratory order — application for — distinction from application for review — application for order having all characteristics of application for review — order sought being appropriate to review proceedings — application should be treated as one for review

Practice and procedure — parties — citation of — inaccuracy in identification of party cited — party nevertheless pointed out with sufficient accuracy to enable it to be correctly identified — process valid

Headnote

The applicant brought an application against her former employer, which was cited as "Delta Beverages". She sought a declaratory order to the effect that the freezing of her salary and her later dismissal were null and void and that she should be reinstated in her position. She alleged that she had not been afforded a hearing in terms of the company's code of conduct or in terms of the principles of natural justice.

The company raised three objections in limine: (a) that the applicant had cited a non-existent entity, the company's correct name being "Delta Beverages (Pvt) Ltd"; (b) that the High Court had no jurisdiction, as the application was in reality one for review and the correct forum was the Labour Court; and (c) that the matter was prescribed.

Held, that generally, proceedings against a non-existent entity are void ab initio and thus a nullity. However, where there is an entity which through some error or omission is not cited accurately, but where the entity is pointed out with sufficient accuracy, the summons would not be defective. Here, the respondent was a well known blue chip company whose fleet of cars were all over the nation's roads. Its commercial advertisements needed no introduction. The applicant may have technically erred in her description, but described the respondent with sufficient clarity, to the extent of eliminating any mistake, either legal or factual, about the respondent's identity. Held, further, that there is a clear distinction between an application for a declaratory order and an application for review. Although the application was presented as one for a declaratory order, its contents were those of an application for review. In such an application, the applicant seeksa review arising out of the irregularity of the procedure adopted by a tribunal or board. This what the applicant was seeking. The draft order was clearly not a declaratory order, but relief obtainable on review. As the application was in fact one for review, the correct forum for its determination was the Labour Court, as provided for under s 89(6) of the Labour Act [Chapter 28:01].

Held, further, that in any event, the claim was prescribed, as the debt arose over three years before the respondent was summonsed.