Nyangoni Shingirai and 126 Others v Anjin Investments (Pvt) Ltd

### Preamble
1
HH 842-18
HC 8475/16
NYANGONI SHINGIRAI
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NYANGONI SHINGIRAI
and
MISHECK KUNGENDIWESHE
and
SAGUMBO NICHOLAS
and
KURAUZVIONE ERRIE
and
MUYEDZA SAMSON
and
SIRAHA WILLARD
and
MULEYA EDMORE
and
PETROS ELLINGTON
and
CHINHAMO MOCKYARD
and
MAKONESE HENRY AND 117 OTHERS
versus
ANJIN INVESTMENTS (PVT) LTD

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 10 October 2018 & 20 December 2018

Judgment at Pre-trial conference

W Bherebende, for the plaintiffs
P Ranchhod, for the defendant

TSANGA J: Having held a pre-trial conference, I concluded the matter in favour of the plaintiffs by granting them the order prayed for which was in the following terms as per summons: a) Payment of US$407 442.08
b) Payment of 5% per annum on the sum of US$407 442.08 from the date of judgment.
c) Payment of costs of suit.
 I gave very clear reasons for so doing at the hearing and referred both lawyers to the applicable case behind granting the order at that stage. The defendant’s lawyer has requested that the reasons given to be reduced to writing.

The background to the claim was as follows: The defendant, Anjin Investments (Pvt) Ltd, was the employer of the plaintiffs in terms of a fixed contract of employment with each of the plaintiffs. It operated a diamond mine in Chiadzwa where plaintiffs were employed. Following the cessation of mining operations at Chiadzwa by Government on the 22nd of February 2016, the defendant entered into mutual termination of employment agreements with each of the plaintiffs. The amount due to each and gratuity applicable had also been agreed. The amounts appear in the mutual termination of agreement document.

At the time of the agreements, there was a pending case in the High Court between the defendant and the Government of Zimbabwe for permission to resume mining. The workers had agreed to stay their claim until the urgent matter which was then pending was finalised. It was finalised in March 2016 and according to plaintiffs there are no longer any prospects of resuming operations at Chiadzwa. Despite this reality the defendant had still not paid them as per agreement.

The defendant summarised its pre-trial conference issues as follows:

1. Whether the payments to the plaintiff in terms of the Deed of Mutual Termination were due upon the conclusion of the High Court proceedings or upon the conclusion of all court matters challenging the actions of the Minister of Mines.
2. Whether the current proceedings should be stayed or suspended pending the conclusion of the court matters challenging the actions of the Minister of Mines.

At the pre-trial conference, the defendant highlighted in particular that whilst the High Court matter had ended, it had filed a chamber application for condonation of late filing of an appeal with the Supreme Court for which it was still awaiting judgment despite promises.

It is trite that unless and until condonation is granted there is no matter before the courts. This principle was acknowledged by the legal practitioners present at the second pre-trial conference hearing on 10 October 2018. Secondly, the plaintiffs through their lawyer were not willing to countenance any further delay as the application for condonation was now a different matter to that which was pending at the time that they agreed to postpone the receipt of their payments. Their standpoint was that notwithstanding the conclusion of the case between the defendant and the Government of Zimbabwe, the defendants had not paid the amounts due to the plaintiffs in terms of the mutual agreement, which amounts are ascertained and acknowledged in writing. Significantly their lawyer also pointed to clause 6 of the mutual termination agreement which reads as follows:

6. That the parties are aware that there are court matters pending challenging the validity of the actions of the Ministry of Mines and Mining Development. The employee acknowledges that he has no legitimate expectation of re-engagement of employment based on the outcome of the court case. The employee is free to deal with the new legal persona who is not present employer.

The emphasis at the pre-trial conference was that the application for condonation was not the matter to which the plaintiffs had agreed to await their payment. It was further pointed out by plaintiffs that from clause 6 above, it was clear that the employer was under no obligation to re-employ any of them. The employees were therefore simply being asked to hold the employer’s hand for the employer’s own convenience in its persistence to fight its case.

This clause which was drawn to my attention was discussed at the pre-trial conference and all agreed that there was indeed no obligation on the employers to continue holding the employer’s hand in endless matters. The clause is clear that even if the court case is ultimately won, there is zero obligation on the part of the employer to take any of them back. The defendant clearly had no defence to their claim for payment.

Further discussed with the lawyers were therefore the implications of having no defence as highlighted in the case of KM Insurance v Marumahoko 2014 (2) ZLR 725 (H). In essence this case summarises as follows the context and action that can be taken at a pre-trial conference where parties are agreed that there are technically no issues for referral to trial.;

“The duties of a judge in a pre-trial conference include: (a) identification of issues to be resolved at trial; (b) identifying common cause areas; (c) eliminating frivolous claims or defences; (d) identifying witnesses and documents; and (e) discussing possibilities of a settlement. After the conference the judge either issues an order reflecting the results of the conference or refers the matter for trial on identified issues. The judge cannot simply refer a matter to trial where there are no disputed issues to be resolved at trial. To do so would defeat the real purpose for which a trial court is constituted. When it is clear that a litigant simply refuses to settle but concedes that there are no issues for determination at trial, it is permissible for the pre-trial judge to enter judgment at that stage”.

The desire by the defendant to hold on to its employees by not paying them was clearly tactical and for its own advantage as technically there was no matter strictly pending before the courts since condonation had not yet been granted. Even if there was, there remains no guarantee of jobs for the employees and the plaintiffs have opted to be paid.


There were no issues to refer to trial as the plaintiffs’ claims are well founded, clear and are in writing. As stated, it was also crystalline that the plaintiffs themselves have opted to be paid. There was therefore no reason to continue their suffering when legally there are on firm ground regarding their claim.

It was for these reasons that I granted them the order prayer for with the full understanding of the legal reasoning behind my order by legal counsel on both sides.

Bherebende Law Chambers, plaintiffs Legal Practitioners
Hussein Ranchhod & Co, defendant’s Legal Practitioners
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