Trixie Mine (Private) Limited v Josaya Levy & 45 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/256/25
HARARE, 20TH MAY, 2025
CASE NO. LC/H/262/25
AND
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/256 /25 HARARE, 20TH MAY, 2025	 CASE NO. LC/H/262/25

AND

24th JULY, 2025

TRIXIE MINE (PRIVATE) LIMITED	APPELLANT AND

JOSAYA LEVY	1ST TO 45TH RESPONDENTS AND 45 OTHERS

AND

TAWANDA MARISA N.O.	46TH RESPONDENT

Before the Honourable Chivizhe J;

For the Appellant	Ms C. Shoniwa (Legal Practitioner) For 1st to 45th Respondents Mr. L. Pwanyiwa (Trade Unionist)

CHIVIZHE J:

This is an appeal against a determination by the Designated Agent of the National Employment Council (Mining Industry) Honourable Marisa Tawanda dated 24 February 2025. The appeal has been filed in terms of section 92D of the Labor Act [Chapter 28:01].

In relief the appellant prays for:

“The determination of the National Employment Council (Mining Industry) by Marisa Tawanda dated on 24th February 2025 be set aside and the determination be replaced by the following order;

The point in limine by the Respondent be and is hereby upheld with costs.”

BACKGROUND FACTS

The appellant is a registered company operating in the Mining Industry. The 1st to 45th Respondents are its employees. The 1st to 45th respondents referred a claim to the Designated Agent for alleged underpayment of wages, non-payment of overtime and gratuity in lieu of overtime. The actual date of referral is subject of a dispute between the parties and will be addressed in this judgement .The 1st to 45th respondents, were according to the award, represented by officials from the Mining Workers Union of Zimbabwe whilst the appellant was initially represented by its Mine Manager. The appellant’s current legal practitioners assumed agency to represent the appellant thereafter. On the date of set down 13th June 2024, the appellant through counsel raised a preliminary point to the effect that the Mining Workers Union of Zimbabwe had no locus standi to bring a claim on behalf of the claimants and no proper mandate to represent the same forty- five (45) claimants. The appellant was relying on the authority of Barry Thomas Proster and Ors v Zimbabwe Iron and Steel Company HH-201-93. Parties were granted an opportunity to file written submissions on the preliminary point as well as the merits.

The parties having so complied, the Designated Agent handed down his determination. In the determination he dismissed the preliminary point as taken by the Appellant although it was now reflected as the first term of reference. His basis for dismissing the point was that the individual Affidavits of the claimants were sufficient proof of the trade union right to represent the claimants. It was also his view the respondents (now Appellant) were unnecessarily raising technicalities a practice which has been discouraged by the superior courts. He referred to Edmore Mazambane and 55 others vs Freda Rebecca Gold Mine Limited SC 81/22. The Designated Agent further dismissed the point taken that the Affidavits which were dated 26 March 2024 post-dated 31 January 2024 the date of filing of the statement of claim and were thus invalid. His finding was this point was irrelevant as the claim itself had been filed in September 2023. On the merits he found that the appellant having failed to file Heads of Argument on the substantive issues had waived the right to be heard on the merits. The Designated Agent in arriving at this finding relied on the Supreme Court decision in Robert Dombodzvuku v CMED (Pvt) Ltd SC 31/12 at p5. Thereafter the Designated Agent proceeded to award to the claimants (now respondents) a total of USD66 049.05 to cover underpayments and gratuity for the period from January to December 2023. The award further broke down the amount to reflect the specific award to each of the respondents. The Appellant was aggrieved and proceeded to note the present appeal before this court.

GROUNDS OF APPEAL

The Designated Agent erred in law by failing to appreciate that the Mining Workers Union did not have locus standi bring a claim on behalf of the forty-five (45) alleged claimants in the absence of individual statement of claims and special powers of attorney from the Claimants, contrary to established legal principles requiring a party instituting legal proceedings to demonstrate a direct and substantial interest in the matter.

The Designated Agent misdirected himself by accepting affidavits dated 26 March 2024 as proof of authorization when the statement of claim was filed on 31 January 2024. A general affidavit does not apply retrospectively, meaning the Union had no authority to act on behalf of the claimants at the time the claim was instituted.

The Designated Agent erred by accepting affidavits that merely conferred representational power but did not grant the Union authority to bring a claim or act in the name and stead of the claimants.

Improper Acceptance of an Affidavit Instead of a Special Power of Attorney The tribunal misdirected itself by treating the affidavit as sufficient authorization when, in fact, the law requires a special power of attorney for a third party to initiate and prosecute legal proceedings.

The Designated Agent erred in law by failing to appreciate that the Claimants themselves have not filed a statement of claim.

ISSUES FOR DETERMINATION

Although the appellant has raised 5 grounds of appeal there are two main points for determination which are captured in the first and second grounds of appeal. The issues are the following;

Whether the Designated Agent erred in law when he found that the Mining Workers Union had ‘locus standi’ to bring a claim before him on behalf of the 45 claimants.

Whether the Designated Agent misdirected himself at law when he accepted affidavits produced by the claimants as authorization to the Mining Workers Union to represent the claimants. In other words, the issue is whether the affidavits were valid documents before the Designated Agent.

PARTIES SUBMISSIONS

When the parties appeared before the court, they both chose to adher to their heads of arguments. Ms Shonhiwa, for the appellant, however emphasized on the contentious issue of

the locus standi of the Mining Workers Union of Zimbabwe to bring the claim on behalf of the respondents before the Designated Agent. She submitted that the Designated Agent had misdirected himself at law when he found that the Union had locus standi to bring the claim. This was in view of the fact that there was no claim either by the 45 claimants individually or as a group. She noted that the claim referred to the Designated Agent had been made by the Union itself. Ms Shonhiwa further submitted that the Designated Agent further misdirected himself at law when he found that the affidavits filed by the respondents were properly filed to authorize representation. It was apparent that the affidavits were filed after the claim had already been filed and as such, they could not have retrospective effective, resulting in them being invalid. The Designated Agent ought therefore to have upheld the preliminary point as taken. Her submission was that the issues raised were raising a question of law as contemplated in Mutsuta & Anor v Cagar (Private) Limited S-47-09.

Mr Pwanyiwa for the respondents, submitted that the Designated Agent was correct in the conclusion reached that the Mining Workers Union was and is still acting in a representative capacity. He submitted that the issue of the union having locus standi to sue/claim on behalf of the respondents did not arise. The parties before the Arbitrator were Trixie Mine (Pvt) Ltd v Josiah Levy & Ors. Mr Pwanyiwa submitted that he had extensively dealt with the issue of locus standi in the heads of argument. He also emphasised that this action was a class action by the group of employees so there was no need for the respondents to have filed individual statements of claim. It could not be disputed by the appellant that the respondents were all members of the Mining Workers Union of Zimbabwe, they thus had a right to be represented. The trade union under the provisions of section 29 (4) (d) of the Labour Act [Chapter 28:01] also has a right of audience before the Labour Court and any other tribunal. Mr Pwanyiwa conceded that the Designated Agent could have convoluted the issues of representation and locus standi in his award. He however maintained that the Designated Agent correctly concluded that the Mining Workers Union of Zimbabwe had a mandate to represent the respondents, he therefore properly dismissed the preliminary point as taken before him.

In reply, Ms Shonhiwa emphasised that the Designated Agent on p 12 of the record correctly identified the issue as to whether the Trade Union had locus standi. He was also very much aware of the distinction, in his conclusion however he referred to the union’s right of representation. He made no reference to the issue of locus standi. She also dismissed the contention by the respondents that the action was actually a class action. Her view was that the respondents had an obligation to file individual claims before the Designated Agent. It was not incumbent upon the Trade Union to file the claim on their behalf. The statement of claim, as

reflected in the record had been signed by the Trade Union and not the individual claimants. Finally, Ms Shonhiwa, in her concluding remarks, urged the court to find that the appeal had merit and that it should therefore be upheld on the basis of procedural missteps and improper filing of claims. The failure by the trade union to establish locus standi or properly initiate claims in this case rendered the proceedings void ab initio. By upholding the appeal this court would be reinforcing the necessity of adherence to procedural laws and protection of the integrity of the legal process. The incorrect attribution of locus standi to the trade union and the failure to ensure that claims were properly filed by individual respondents justified this conclusion. On this basis, therefore Ms Shonhiwa insisted that appeal had merit and ought to be upheld by the court.

Mr Pwanyiwa, in his last remarks drew the court’s attention to the provisions in Article

23.1 of the Arbitration Act [Chapter 7:15]. It was contended that the provisions were not couched in such a strict manner as to state that a claim before the Arbitrator has to be filed individually by a claimant. On this basis the trade union was entitled to file the statement of claim on behalf of the respondents. Mr Pwanyiwa prayed for the dismissal of the appeal.

EVALUATION

The principle of locus standi is a cornerstone of legal proceedings, requiring a party seeking to initiate litigation to demonstrate a direct, substantial and personal interest in the subject matter of the dispute. This legal requirement has been consistently upheld by Zimbabwean courts. The appellant referred to the case of Zimbabwe Stock Exchange v Zimbabwe Revenue Authority S-56-07 wherein Malaba JA (as he then was) emphasized that a party must show a direct and substantial interest in the rights at issue and the relief sought to justify participation in legal proceedings. Similarly, in Sibanda & Ors v Apostolic Faith Mission S-49-18, the Supreme Court reiterated that locus standi is the capacity of a party to bring a matter before the court, requiring a demonstrable and substantial interest in the case.

The concept of locus standi was also succinctly explained in the case of Zimbabwe Allied Bank Limited v Dengu and Anor S-52-16 as follows:

“The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he or she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject-matter of the cause of action.”

Additionally, in Ndlovu v Marufu HH480/15 the principle of locus standi is simply

laid out as the capacity of a party to sue another. Emphasis is on the litigants themselves. It is trite that locus standi exists when there is direct and substantial interest in the right which is subject matter of the litigation and outcome thereof. A person who has locus standi has a right to sue which is derived from a legal interest recognised by the law. The Supreme Court in Zimbabwe Allied Bank v Dengu (supra) also remarked as follows:

“The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he/she is entitled to the relief sought, he or she has locus standi.”

It is indeed correct as submitted by the appellant that the Mining Workers Union filed and signed the statement of claim on behalf of 45 respondents but failed to establish that it had the necessary interest or capacity to do so in its own name. The Trade Union did not provide evidence of direct authorization or a statutory mandate to act as the primary claimant in the proceedings. Without such a direct and substantial interest, the Trade Union clearly lacked the locus standi required to initiate the claim. The Designated Agent in his decision, despite exhibiting his clear knowledge of the distinction between locus standi and the right to represent a party, in his determination zeroed in on the trade union’s right to represent. He clearly overlooked to address the issue of locus standi. The established legal principles confirm that the capacity to litigate cannot be assumed in the absence of a clear and demonstrated interest and the adjudicator’s ruling undermined these foundational principles.

The distinction between locus standi and representation is legally significant. Locus standi pertains to whether a party has a direct and substantial interest in a matter, enabling them to institute proceedings. Representation, on the other hand, involves acting on behalf of another party who possesses locus standi. A trade union’s statutory right to represent its members does not automatically grant it the right to file claims in its name without proper authorization or a direct interest in the matter. The court agrees with Ms Shonhiwa’s assessment that the Designated Agent misapplied these principles. Without an explicit mandate or statutory provision allowing the Trade Union to act as the primary litigant, it lacked locus standi to initiate proceedings independently.

The validity of legal proceedings hinges on the principle that authority to represent another must exist at the time such proceedings are initiated. In this case, the Statement of Claim filed by the Mining Workers Union of Zimbabwe on 31 January 2024 predates the affidavits purporting to confer authority on the trade union to represent, which affidavits are dated 26 March 2024. The Ist to 45th Respondents position on this point is that the claim was actually filed in September, 2023 and therefore the point as taken by the Appellant is not merited. The Designated Authority award clearly shows that the claim or application as it is put in the award was filed on 31st

January, 2024. It is also apparent that even if it were to be accepted that the claim was filed in September, 2023 that would not alter the position that the affidavits having been filed by the 1st to 45th respondents after the claim had already been filed were improperly filed.. The sequence of events clearly indicates that the Trade Union lacked the requisite authority to represent the respondents when the claim was instituted. The principle articulated in Masamba v Zimbabwe Electricity Transmission & Distribution Company (Pvt) Ltd HH-411-15 reinforces this position, in the case the court held that authority to represent cannot be granted retrospectively. Representation must be valid and conferred at the time the legal action is initiated. Consequently, the Trade Union's lack of authority to represent at the critical moment renders the initiation of the claim procedurally flawed and legally invalid.

Ms. Shonhiwa also contended that the action in question was not a class action and that individual claimants should have filed their claims directly. Class actions are procedural mechanisms allowing one or more individuals to represent a larger group with common interests, provided certain formalities, such as certification, are met. If these requirements are absent, the action cannot be deemed a class action. Moreover, since the statement of claim was signed by the trade union and not the individual claimants, this further undermines the legitimacy of the proceedings as a collective or class action. The court also agrees entirely with appellant’s position that the absence of individual claims invalidated the proceedings. The procedural obligation to file claims rests with the individual claimants unless explicitly delegated to the trade union as governed by collective bargaining agreements or statutory provisions.

This court concurs with the argument that the Mining Workers Union of Zimbabwe lacked the requisite locus standi to institute proceedings on behalf of the respondents. The affidavits relied upon by the Union failed to confer the necessary authority to act in the name and stead of the claimants. It is a well-established legal principle, as articulated in Ashley v South African Prudential Ltd 1929 (1) TPD 283 and reaffirmed in subsequent jurisprudence, that a general mandate is insufficient to authorize the institution of legal proceedings. Instead, a special power of attorney is required for one party to act on behalf of another in litigation. It is important to note that in this case an affidavit from each of the respondents simply stating

that they had authorised the lead applicant to act on their behalf would have been necessary as stipulated in the case of Barry Thomas Prosser & Ors v Zimbabwe Iron and Steel Company HH-201-93.

It is also well-established principle that preliminary points, particularly those that pertain to jurisdiction or standing, must be determined before any substantive issues are addressed. In Chinhoyi Municipality v Mangwana & Partners Legal Practitioners HH-403- 16, the court underscored that such points must be resolved in limine to ensure the proper adjudication of disputes.

The Designated Agent ruling on the preliminary objection concerning locus standi was a significant procedural misstep. The absence of a legal mandate for the Trade Union to act on behalf of the claimants without a proper statement of claim prejudiced the appellant and undermined the integrity of the proceedings. It is apparent, the respondents had not granted Mining Workers Union a special power of attorney to file proceedings on their behalf. The absence of such explicit authorization before the determination is a fatal procedural flaw. The Designated Agent, by failing to address the crucial issue as to whether the Trade Union possessed locus standi further misdirected himself on a point of law. Consequently, the claim should have been dismissed for lack of standing, as the Union did not meet the legal requirements necessary to act as the de facto claimant. This court upholds the principle that adherence to procedural and substantive requirements is paramount to ensuring the integrity of the legal process.

In Mazowe Mining Company v Associated Mine Workers Union of Zimbabwe HH 226-23 the High Court found that the arbitration proceedings were a nullity due to the first respondent's lack of locus standi to participate as the claimant. The court noted that both parties had improperly participated in the arbitration, which was invalid from the outset. This case also underscores the importance of establishing proper authority and representation in arbitration proceedings.

In the Supreme Court judgment in Gweru Water Workers Committee v City of Gweru 2015

(2) ZLR 67 (S), it was stated by Malaba DCJ (as he then was) that:

“Only a Trade Union can represent its members before a determining authority or in the Labour Court. It cannot arrogate to itself as was done by the “Gweru Water Workers Committee”, the cause of action and the employees and sue on their behalf. It is clear that the rights provided for under s 16 of the Act accrued to the employees in their individual capacities.

Representation in terms of s 29(4)d of the Labour Act does not mean that a person or body would have the right to substitute itself in place of the employees as a party to proceedings. The court therefore finds that the determination on the first term of reference was a misdirection on the part of the Designated Agent as the trade union could not at law, substitute itself for the workers affiliated to it. The net effect of this finding is that there were no claimants before the Designated Agent. There is consequently no respondent before this court.

In his closing remarks however, Mr Pwanyiwa invoked Article 23(1) of the Arbitration Act, arguing that its provisions are not explicitly strict in requiring claims before an arbitrator to be filed individually by claimants. He contended that this ambiguity allowed the trade union to file the statement of claim on behalf of the claimants, thereby justifying the dismissal of the appeal as lacking merit. However, this argument is fundamentally flawed when analyzed in light of procedural and substantive legal principles.

While it is true that Article 23(1) of the Arbitration Act does not explicitly mandate individual filings, the broader legal framework necessitates that claims must be properly grounded in locus standi. A trade union’s role as a representative of its members does not automatically confer upon it the authority to file claims independently unless such authority is expressly granted through statutory provisions or delegated by the members themselves. The absence of individual affidavits or explicit authorization from the claimants undermines the procedural integrity of the filing and raises serious questions about the trade union's standing in this matter.

Furthermore, procedural requirements exist to ensure that the rights and interests of all parties are adequately protected. Allowing a trade union to initiate claims without proper authorization sets a dangerous precedent that weakens these procedural safeguards. The respondents, as individuals who had a direct interest in the matter, bore the responsibility to either assert their own claims or to delegate this responsibility. Without clear evidence of such delegation, the filing of claims by the trade union lacks procedural and legal validity.

The court having arrived at the position as reflected above it shall not be necessary to address the rest of the other issues raised in this appeal.

The appellant has prayed for the setting aside of the award. In view of the findings above the proceedings before the Designated Agent were a nullity at law, they cannot not therefore be allowed to stand. As was held by Lord Denning in the seminal case of Macfoy v United Africa Company Ltd (1961) 3 All ER 1169; at p 1172:

“if an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is found on it is also bad and incurably bad. You cannot put something on it and expect it to stay there. It will collapse……”

.

DISPOSITION

In the result it is ordered as follows;

The appeal, being merited, it be and is hereby upheld with no order as to costs. The award by the Designated Agent dated 24th February, 2025 be and is hereby set aside.