Tawananyasha Gold Mine v Tawananyasha Joking A (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
HARARE, 19 AUGUST, 2025
JUDGMENT NO. LC/H/303/25
CASE LC/H/439/25
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IN THE LABOUR COURT OF ZIMBABWE

HARARE,	19 AUGUST, 2025	JUDGMENT NO. LC/H/303/25

The Appeal

This is an appeal against the decision of an arbitrator who decided the matter on a preliminary point. It is therefore an appeal on the preliminary point and not the claim raised by the parties.

The Background

This case could have come as a stated case. The facts relevant are very brief and unequivocal. The parties were involved in a mining syndicate under the style Tawananyasha Gold Mine. It was not a registered entity at all. The

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appellants provided the labour while the other parties provided finance and management. They shared the proceeds from the mining activity.

In earlier proceedings the appellants approached a labour officer alleging unlawful dismissal and a settlement was reached where the parties agreed that the appellants be reinstated. They were not reinstated and they consequently resigned and claimed terminal benefits and underpayment of salary and benefits. They abandoned the certificate of settlement. The proceedings were both against Tawananyasha Gold Mine.

Meanwhile the financiers registered a company called Tawananyasha Joking A (Pvt) Ltd. It is not in dispute that Tawananyasha Gold Mine is not registered and therefore not a legal person and that Tawananyasha Joking A (Pvt) Ltd was registered after the parties were already involved in the litigation. The respondents in both proceedings before the labour officer and the arbitrator were represented by Oscar Muropa.

The respondents raised a point in limine to the effect that the parties were involved in an unregistered syndicate and as such it is not a legal persona and could therefore not sue or be sued in its name. The appellants argued that the two Tawananyashas were the same with the later just being a change of name. Respondent further argued that there was no employer/employee relationship as this was a syndicate. The two entities were not the same. The arbitrator upheld the points in limine and “dismissed” the claim. The correct terminology would have been to strike off the claim, for lack of a respondent.

The Basis of The Appeal

The appellants have appealed on the grounds that:

“1. The arbitrator fell into error when she failed to hold as she must have done, that the Respondent was an existing entity which simply changed its name, and consequently wrongly concluded that there was no Respondent before the tribunal aquo.

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2. The Arbitrator grossly erred and misdirected herself when she ignored the certificate issued by the Bindura Labour officer which confirmed the employment relationship between the parties and wrongly concluded that there was no employment relationship between the parties”.

The Appellants prayed for upholding of the appeal with costs and dismissal of the points in limine and for the referral of the matter to be decided before a different arbitrator.

The Arguments before this Court

The arguments before this court were basically the same. The appellants were simply saying that the syndicate could be sued in its name. Further, that the registered entity was still the same entity that had just migrated. They also argued that there was an employer/employee relationship as more reflected by the certificate of settlement where the parties had agreed on reinstatement.

On the other hand the respondent’s argument was that a syndicate that is not registered is not a legal persona and in terms of the law it cannot be sued or sue in its name. The individuals in the syndicate have to be cited in their individual capacity. Further, there was no employer/employee relationship as both the appellants and the respondents were members of the syndicate.

The Law

It is trite at common law that a none-existent person cannot sue or be sued. By the same token an unregistered entity cannot sue or be sued at common law. In the leading case of Garia Safaris (Pvt) Ltd v Van Vyk 1996 (2) ZLR 246 (H) the court held that;

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural

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person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio”.

This is the general position. It must be pointed out that this position has been changed by statute in different situations. For example in the mining field an unregistered mining syndicate is recognised for the purpose of acquiring mining rights and for that purpose can sue and be sued in its own right. The Marriages Act, [Chapter 5:17] has similar provisions.

In Labour matters the issue of capacity to sue or be sued is covered in section 29 of the Labour Act. The provision gives the right to sue or be sued to every registered trade union, employers’ organisation or federation.

“29(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 body corporate may, by law, do”.

By the same token a workers’ committee does not have the power to sue or be sued in its name. Thus by this very token the court in C. T. Bolts Pvt Ltd v Workers Committee SC 16/2012 held that a workers committee appointed by employees and not registered in terms of the law lacked the capacity to sue or be sued. The case was consequently struck from the roll.

The same reasoning was followed in ZESA Technical Employees Association v ZESA Holdings (Pvt) Ltd SC 51/2016 wherein it was held that the rights of a defunct entity could not be taken over by a new entity without the new entity first being joined to the proceedings. Consequently there was no other persona before the court and the matter was improperly before the court. This case is the more relevant to the present case in that the appellants

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have tried to argue that the registered entity was just the old entity that had just morphed into a new name and should therefore be held liable. It cannot be so.

Application Of The Law To The Facts

It does appear therefore that the respondent Tawananyasha Gold Mine being unregistered cannot sue or be sued in that name. The individuals have to be sued. The registered entity of Tawananyasha Jokic A (Pvt) Ltd cannot be substituted for the Gold Mine as the proceedings under the Gold Mine are a nullity. At the same time the Certificate of Settlement is also a nullity as it was entered into by a non-existent entity. It cannot be evidence of the existence of an employer/employee relationship either because there is no legal person to sue by that name. The two grounds of appeal do fall by the one blow of the absence of a person who can be sued by the name of Tawananyasha Gold Mine.

Disposition

There being no legal entity that was sued by the appellants the appeal fails. No argument has been put forward for the costs not to follow the result.

It is accordingly ordered that;

The appeal be and is hereby dismissed with costs.

The appellant’s claim is struck off.