National Mine Workers Union of Zimbabwe and 2 Others v KTULU Resources (Pvt) Ltd t/a Benson Mine and Jinan Corporation (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/209/25
HARARE, 05 JUNE, 2025 AND
09 JUNE, 2025
CASE NO LC/H/453/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/209/25 HARARE, 05 JUNE, 2025 AND

09 JUNE, 2025	CASE NO LC/H/453/25

NATIONAL MINE WORKERS UNION OF ZIMBABWE	APPLICANTS AND 2 OTHERS

KTULU RESOURCES (PVT) LTD	1ST RESPONDENT T/A BENSON MINE

JINAN CORPORATION (PVT) LTD	2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants	- K. Masarire, Attorney

For 1st Respondent	- V. Masaiti, Attorney For 2nd Respondent	- W.T. Davira, Attorney

MUSARIRI, J:

1

On 27 May 2025 Applicants filed an urgent application in this Court for a provisional order directing respondent to cease or desist from “committing any unfair labour practices against Applicant’s members.”

The application was made in terms of Section 89(c) (vii) of the Labour Act Chapter 28:01 as read with Rule 18 of the Labour Court Rules, 2017. Respondents opposed the application.

Preliminary Points

Applicant filed a Certificate of Urgency dated 23 May 2023. The pertinent parts of the Certificate stated that,

“3. The Applicant has a membership of over 200 people who are employees of the

Respondent.

That through the Applicant the employees have filed their claim of underpayment of salaries and other unfair labour practices done by the Respondents the matter is pending before the NEC for the Mining Industry and have been set on the 11th of June 2025.

As a result of these matter set down for hearing the Respondent through its management has committed serious unfair labour practice by threatening Applicants members to resign from the union and as well as with the claim of underpayment and provision of protective clothing, late payment of salaries and threat of dismissal from work if they do not do as instructed by the Respondents management.

The Respondents have no right whatsoever to threaten and forbid the Applicants member to exercise their right for freedom of association and assembly as provided for in the constitution and the labour Act.

9. It is on this basis that I clearly state that this matter is urgent. The matter cannot wait. The Respondents actions were perpetrated when the matter was postponed mainly on the 16th of May 2025 to 11 June 2025. The Applicant has treated the matter with the urgency

it deserves. The Respondent’s management was telephonically communicated with and they are not stopping the victimization and further it has taken full swing.”

2nd Respondent’s opposing affidavit countered as follows;

“3. I aver that the 1st Applicant has no locus standi to institute the present application. The National Mine Workers Union of Zimbabwe cannot arrogate to itself the alleged cause of action of the employees and sue on behalf of the employees as the rights to fair labour practices provided for under the Labour Act (Chapter 28:01) accrue to the employees concerned in their individual capacities.

4. Once the founding affidavit by the National Mine Workers Union of Zimbabwe has been found to be invalid for the lack of locus standi and expunged, I aver that the supporting affidavits by Michael Kaitano and Nelson Chibanda, have nothing to support and they cannot stand of their own and be the foundation or the basis of the application.

10. I am advised by counsel that the Applicant has used the worng procedure of filing an Urgent application in terms of Section 89(c) (vii) of the Labour Act (Chapter 28:01), whereas such said section does not provide for urgent applications.”

Analysis

Section 89(2) of the Labour Act provides that,

“(c). in the case of an application made in terms of subparagraph (i) of subsection (7) of section ninety-three, make an order for any of the following or any other appropriate order- viii cessation of the unfair labour practice;”

The referenced section 93(7) refer to an application to the Labour Court when a Labour Officer either

refuses to issue a Certificate of No Settlement or

the Certificate is issued but it is not possible to refer the matter to compulsory arbitration.

Neither of the 2 (two) scenarios has been invoked in casu in order to trigger an application under Section 89(2) of the Act. Rule 18 of the Court’s Rules simply provides the procedure for dealing with urgent chamber applications in the Labour Court. Therefore the statutory provision s 89(2) of the Act, upon which the present application is based does not provide for the application. As a result the application stands to be dismissed. This conclusion is consonant with the dicta in;

NRZ V ZRAU 2005(1) ZLR 341(S)

Per Ziyambi JA, at 347A

“Thus before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application ‘in terms of this (Labour) Act or any other enactment.’ This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the Applicant seeks to bring:”

Wherefore it is ordered that,

The application be and is hereby struck off the roll as incompetent or contrary to s 89(2) of the Labour Act Chapter 28:01; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E