Concept of legal personality

What is a legal person? This is a question that has often been taken for granted, but has seen many cases being set aside on appeal when a party has attacked the legal personality of a party or the Court mero motu raises the issue.

In The Zimbabwe BATA Shoe Company v Zimbabwe BATA workers Committee SC 40.12, the Supreme Court held that, “The respondent, not being a legal persona, is not properly before this Court.  The proceedings before the Labour Court and prior to that, the arbitrator, was similarly void”.

The same fate also met the “Respondent’ in The  Zimbabwe BATA Shoe Company (PVT) LTD v BATA Shoe Company Middle Management SC 30.12 where the issue of legal personality was raised.

The position had been taken earlier in CT Bolts Pvt Ltd v Workers Committee SC 16/12, that a Workers Committee was not a legal person. The effect of not having a legal person is to render all proceedings null and void and of no force and effect.

You need to have clarity from the onset as to who you are entering into a transaction with as it will protect you in the event that there is a dispute and you want to enforce your rights. Let us look at the concept of legal personality. I am not going to go into greater jurisprudence of it.

Meaning and concept

The word “person” comes from the Latin word “persona” which originally means “mask”. Mask in this instance referred to a character in a play, a representative of it. The mask’s purpose was to make the actor’s voice vibrant and loud. Later, people came to use the term “person” to refer to the masked actor himself. The term developed and refers to a natural person.

Generally, there are two types of person that the law recognises, namely the natural and artificial person. Both natural persons and juridical persons are subject to rights and obligations. In general, only humans can be considered natural persons, since it is through their conduct that they can obtain rights and fulfil (or violate) obligations. Both natural persons and juridical persons have actions, which are understood as the legal obligations and subjective rights that make up this entity.

Natural persons refer to human beings. This means you have the legal personality to sue and be sued in your name as long as you have the legal standing (locus standi). There are other classes of people that have to be assisted in suits for example minors, who can only act through the guardians or Curator Ad Litem.

On the other hand, artificial persons generally refer to any being other than human being which the law recognises as having duties and rights. One of the most recognised artificial persons is the company. The other example of entities includes statutory bodies and common law Universitatis. These entities enjoy rights and obligations in terms of the law. The rights include the right to sue and be sued in their own names, they can own and dispose of properties on their own.

Artificial persons have to act through human beings who are authorized to do so. This particular area has vexed many practitioners and has seen many cases being thrown out on the basis that there is no legal persona cited in the proceedings.

Legal status of schools

This is one of the most confusing areas. I will deal with the other ones in future articles. There are quite a number of strange arguments that you find in Courts, one of them is that a school is a “legal person”.

A school is not a legal person. Meaning it cannot sue and be sued in its own name. The position of law on the status of a school has already been confirmed by the High Court in an appeal that combined three cases; DZOBO PRIMARY SCHOOL versus MARIAN MACHAKAIRE, DZOBO PRIMARY SCHOOL versus JUDITH JAMELA, DZOBO PRIMARY SCHOOL versus RENA DZOBO. The Judgment Number is HH354/16 presided over by the Honourable MWAYERA J AND MUNANGATI-MANONGWA J.

The Judgment settles quite a number of things,

that no proceedings can be instituted by or against a non-legal entity

that the question of legal capacity can raised at any point in time even on appeal for the first time.  This is also a settled position of law from many authorities in the High Court, and Supreme Court.

The Honourable Judges held that:

“The issue of legal capacity being a question of law could be raised at any time and the same cannot be wished away. It is a pertinent issue and has to be decided upon as there may be no party or parties before the court which would make the process of adjudication worthless. The magistrate should not have abrogated that duty when the issue of locus standi was raised at the registration of the award.

“It is clear from submissions made before this court and from the record that the SDC employed the respondents. The appellant is not a legal entity, but the SDC which employed the appellants can be sued as same has legal capacity conferred by Statutory Instrument 187/1992.

“As was found in CT Bolts (Pvt) Ltd v Workers Committee SC16/2012, where a party has no legal capacity there would be no party before the court. I identify with the finding therein where it was stated that

“The respondent not being a legal persona, is not properly before this court. The proceedings before the Labour Court and prior to that, the arbitrator, were similarly void.

“In casu, the award by the arbitrator was a nullity, so is the registration of the award. There was no party or legal entity before the court so an order could not be made against no one. Simply put, you cannot put something on nothing and expect it to hold. There was no competent order in the first place.”

Underlining for emphasis

The registration of a school in terms of the Education Act does not give a school legal personality. A school is simply a place of learning, and not a legal person. The legal person in case of a school is the responsible authority, and any proceedings must be brought against this legal person.

The Education Act does not have any provision which states that a school is a legal person. There are other statutes that specifically create juristic entities and out of interest the comparison is provided below;

Midlands State University Act [Chapter 25:21]

3 Establishment of University

(1) There is hereby constituted a university to be known as the Midlands State University.

[Subsection amended by section 38 of Act 14 of 2002]

(2) The University shall be a body corporate with perpetual succession and shall be capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that bodies corporate may by law perform.

Chinhoyi University of Technology Act [Chapter 25:21]

3 Establishment of University

(1) There is hereby constituted a university to be known as the Chinhoyi University of Technology.

(2) The University shall be a body corporate with perpetual succession and shall be capable of suing and being sued in its corporate name and, subject to this Act, of performing all acts that corporate bodies may by law perform.

University of Zimbabwe Act [Chapter 25:16]

3 Incorporation of the University

(1) The University incorporated by the Royal Charter shall continue to be the University of Zimbabwe but with effect from the 14th January, 1983, shall have the constitution, powers, duties and obligations as provided in this Act.

(2) The University shall continue as a body corporate with perpetual succession and may sue and be sued in its corporate name.

Labour Act

Section 23 Formation of workers committees

(1) Subject to this Act and any regulations, employees employed by any one employer may appoint or elect a workers committee to represent their interests: [CT BOLTS case]

Labour Act

29 Registration of trade unions and employers organisations and privileges thereof

(1) Subject to this Act, any trade union, employers organisation or federation may, if it so desires, apply for registration.

(2) Every trade union, employers organisation or federation shall, upon registration, become a body corporate and shall in its corporate name be capable of suing and being sued, of purchasing or otherwise acquiring, holding or alienating property, movable or immovable, and of doing any other act or thing which its constitution requires or permits it to do, or which a body corporate may, by law, do.

Education Act [Chapter 25:04]

15 Registration of non-Government schools

(1) No person shall establish and maintain a school other than a Government school, unless it is registered.

(2) Any responsible authority wishing to establish and maintain a school referred to in subsection (1) shall make an application to the Secretary in the prescribed form for the registration of such school, accompanied by such documents as may be prescribed.

There are many organisations that deal with schools and treat them as legal persons. In some instances, some schools are even given loans by Financial Institutions on the understanding that they are dealing with legal entities. Have you ever imagined what would happen when you want to institute proceedings, and yet you entered into an agreement with a non-legal entity?

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial, and family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]