Dalabani Swadiki and Charles Kanengoni and Happyson Kaponda and Tapiwa Hwingwiri and Shine Tafura v Mazowe Mining Company (Private) Limited

### Preamble
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HH 679/25
HCHC 91/25
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DALABANI SWADIKI

AND

CHARLSE KANENGONI

AND

HAPPYSON KAPONDA

AND

TAPIWA HWINGWIRI

AND

SHINE TAFURA

versus

MAZOWE MINING COMPANY (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

V. NDLOVU J

HARARE; 30 June & 29 October 2025

Opposed Application

Mr R. G. Gumbo, for the Applicants

Ms. P. Mujegu, for the Respondent

V. NDLOVU J:   This application is made in terms of Section 126 of the Insolvency Act [Chapter 6:07]. The respondent is an entity under Corporate Rescue in terms of Section 125 (2) of the same Act. The applicants are seeking authority to recover their terminal benefits and other benefits, plus the costs of the suit under case number HCHC 91/25.

FACTUAL BACKGROUND

The applicants are former managers of the respondent, Mazowe Mining Company (Pvt) Ltd, a mining company registered under the laws of Zimbabwe. The respondent is currently under corporate rescue, prompting the Applicants to seek court approval under Section 126 of the Insolvency Act (Chapter 6.07) to pursue unpaid terminal benefits.

The applicants mutually terminated their employment contracts in July 2023 following negotiations that resulted in written agreements specifying substantial terminal benefits to be paid in instalments. Initially, the respondent complied for two months but then defaulted on payments. Despite numerous demands and meetings, the applicants were unable to secure the outstanding amounts, which total over US$415,000.

In February 2024, an application to place the respondent under corporate rescue was made and is still pending. This would result in an automatic moratorium on all legal proceedings against the company. The applicants argue that, due to the absence of a corporate rescue practitioner to provide written consent, only the court can grant them leave to sue. They emphasize that their claims are based on clear, written agreements and that the respondent's ongoing default constitutes a material breach.

The applicants assert that the Labour Court is the proper venue for enforcing their contracts and that any judgment obtained would allow their claims to be processed alongside those of other creditors in the rescue process. They believe that granting leave would not prejudice the Respondent, while denying it would leave them without a remedy.

Respondent claims that the application is premature and procedurally defective. It argues that the applicants have not exhausted remedies available under the Insolvency Act, particularly the requirement to lodge and prove their claims at the first creditors’ meeting, which has not yet occurred. The respondent also highlights the absence of a draft Labour Court application, asserting that this is a fatal defect that prevents the court from assessing whether a serious dispute exists.

The respondent also disputes the amount claimed, considering that some payments have already been made. It attributes its inability to pay to disruptions caused by ongoing illegal mining activities. The respondent contends that granting leave would undermine the corporate rescue process, which aims to ensure fairness for all creditors.

PROCEEDINGS

During the hearing, the respondent's counsel argued two points in limine.

Premature application

No draft application to the Labour Court.

Premature Application

The respondent's counsel argued that the application was premature and should not proceed because the corporate rescue process had not yet officially commenced. She highlighted that no creditors' meeting had been held, preventing the applicants from addressing their claims with the Master of the High Court. She argued that the applicants have not exhausted available remedies under the Insolvency Act, specifically the requirement to lodge and prove claims at the first creditors’ meeting, which is a critical step in the rescue process.

She further submitted that any application of this nature should only arise after a claim has been rejected by the relevant authority, initially a judicial manager and subsequently a corporate rescue practitioner once appointed. She indicated that the absence of a practitioner to oversee the process rendered the current application ineffective and premature.

The Respondent's counsel outlined the hierarchy for the repayment of creditors during corporate rescue under section 128(3) of the Insolvency Act (Chapter 6.07). She explained that once a corporate rescue practitioner is appointed, costs incurred during the proceedings would be settled first, followed by secured creditors, then preferred creditors, and finally unsecured creditors. According to her, this hierarchy underscores the need to consider all creditors equitably, and the applicants’ claims should not disrupt this order.

The Respondent's counsel argued that if the sole purpose of the application was to have the applicants’ claims recognised by the corporate rescue practitioner, the proceedings were essentially academic. She contended that they served only to create unnecessary expenses for a company already struggling financially. She pointed out that a court order would not afford the Applicants any additional security beyond their current status in the insolvency proceedings.

She further asserted that even if the Applicants are not seeking to execute a court order, their claims would still be classified as preferential creditors under the existing legal framework. She emphasised that this status would not change; whether a court order was granted or not, the applicants would remain in the same position relative to other creditors.

In response, the Applicants' counsel argued that the points in limine were raised belatedly and therefore should not be considered. He asserted that points raised in the Heads of Argument, which were not previously addressed during the pleading stage, should not automatically be accepted by the court. He pointed out that the Respondent had failed to raise these objections in their initial pleadings, limiting the Applicants' opportunity to address them. He stated that where points in limine are raised for the first time in the heads of argument, they don’t have automatic consideration. He referred to Delta Beverages (Pvt) Ltd v Kudakwashe Murandu SC 38 /2015, where the point in limine was raised for the first time on appeal. This case can be distinguished from the one on hand, where the point in limine was raised in the heads of argument and the matter was argued almost two months later. He went on to concede that the Mazowe Mining Company is under technical rescue, and the court is yet to make an order for corporate rescue. Therefore, the matter is premature before the court. Accordingly, the preliminary point is upheld.

Absence of a draft Labour Court application.

The Respondent's counsel argued that such a document is vital for guiding the court's discretion. Without it, the court cannot adequately assess whether the claims are substantial or whether the Labour Court is the appropriate forum for adjudication. This omission was presented as a critical flaw that renders the application fatally defective.

The Applicants’ counsel argued that Section 126 of the Insolvency Act does not impose any explicit requirement for the attachment of a draft application. However, the inclusion of such a draft application would have been beneficial to the applicant, as it would have provided essential context regarding the merits of the application. Providing the draft application would better guide the court's discretion.  No such application was attached. The preliminary point is upheld.

DISPOSITION

Accordingly, the application is struck from the roll with costs.

v. NDLOVU J

Gumbo & Associates, Applicants’ legal practitioners

Scanlen & Holderness, 1st Respondent’s   legal practitioners