Lovemore Kanjanda and 4 Others v Suraj Mining

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2025
HARARE, 28 FEBRUARY, 2025 AND
5 MARCH 2025
CASE NO R-LC/H/30/23
LOVEMORE KANJANDA AND 4 OTHERS
APPLICANTS
SURAJ MINING
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H//2025

HARARE, 28 FEBRUARY, 2025 AND

5 MARCH 2025

CASE NO R-LC/H/30/23

LOVEMORE KANJANDA AND 4 OTHERS

APPLICANTS

SURAJ MINING

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants - T. Chigubu, Unionist

For Respondent - H. Chinyani, Attorney

MUSARIRI, J:

Applicants applied to this Court for the review of the determination issued by Designated Agent T. Marisa on 30th November 2024 at Harare. The application was made in terms of Section 89(1) 1(d) of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the application.


The grounds for review were triplet thus;

“1. The Honourable Designated Agent erred at law in acting as the representative of respondent in that he was the messenger of all correspondences coming from applicant to respondent and also grossly erred and misdirected himself both on facts and the law when he declined to entertain the issue of terminal benefits in terms of Section 13(1) (a) (b) (c) (d) as read with subsection (2) which is the task for which the DA is employed. The DA’s action clearly shows in the cause, bias malis (sic) and corruption cannot be ruled out.

2. The Designated Agent erred at law in determining a non-existent matter i.e. he issued a determination with 4 applicants despite the fact that he was assigned to determine the matter with 5 Applicants and an element of incompetence cannot be ruled out. The matter before him had Lovemore Kanjanda, Lovemore Muchenje, Kudakwashe Makoni, Temba Tendai and Peter Mareya as Applicants v Suraj Mine but on Determination Peter Mareya was removed from the list for no apparent reason.

3. The Honourable Designated Agent erred at law in misinterpreting the labour act chapter 28:01 Section 12 as amended by Labour Amendment No. 5 of 2015 as well as section 14 of the same Labour Act Chapter 28:01.”

Applicants then prayed that the determination be set aside and the matter remitted back for rehearing by a “different adjudicator.”

The 3rd ground of appeal was earlier struck out of the record by this Court.

In its opposing affidavit, respondent countered that;

“3. The first ground for review is vague and embarrassing the Applicants say that the DA was a messenger of all correspondence when in fact the Union for the Applicants states that Honorable Marisa refused to entertain Section 13.


These are mere allegations which bear burden of proof. There is no procedural irregularity mentioned here, there is nothing. On this basis the application must be dismissed.

4. The second ground is that the DA determined a non-existent matter. This is equally frivolous to say the list (sic) and has no merit. The cause of action before the DA was unlawful casualization of labour, unlawful termination of contract, non-payment of terminal benefits and breach of contractual agreement. These were the issues the DA addressed, to say the DA addressed a non-existent issue is to be misguided. On this basis the second ground ought to be dismissed as it is embarrassing and a waste of the court’s time.”

Respondent prayed that the application for review be dismissed.

**Analysis**

**1st Ground**

The allegation was that the Designated Agent (DA) acted as a messenger for the respondent and that this shows bias or corruption on the part of the DA. However the founding affidavits by the applicants do not provide the evidence or proof that the DA acted as alleged. The reference to Section 13 of the Act was not elaborated. The Section deals with “wages and benefits upon termination of employment.” Contrary to applicant’s claim, the DA dealt with the issue of terminal benefits where he made the finding that;

“It is also my finding that the claim for terminal benefits falls away on this basis, 12(4b) of the Labour Act Amendment No. 5 of 2015 as alluded to by Respondent relates to an employee who is given notice of termination while he/she is on a contract without limit of time for them to qualify for compensation for loss of employment. Claimants were not terminated on notice neither were they on a contract without limit of time…”

Accordingly it is concluded that the 1st ground for review was not substantiated.

2nd Ground

The 2nd ground alleged that the DA removed Peter Mareya from citation of the parties in his determination. In its heads of argument respondent submitted that;

“14. … Where one omitted to cite the party to the determination this is only cured by just making an addendum to the determination or correction of the same. The Applicants did not make an application to the designated agent for correction of his determination on the parties involved. This cannot be cured by review but by simple application for correction of the same. Although, another party was omitted still the determination applies to both parties as they have the same facts and issues.”

The omission of Mareya is apparently admitted by respondent. The omission of Mareya in the determination has little practical effect given that all claims by the applicants were dismissed by the DA largely on the same basis. Therefore adding his name to the determination will make no difference to the merits of the present application. The omission in the circumstances amounts to harmless error.

Conclusion

The both grounds for review lack merit as shown in the above analysis. Accordingly the application stands to be dismissed as devoid of merit.


Wherefore it is ordered that,

1. The application for review be and is hereby dismissed; and

2. Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E
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