Workers bid to sue SMM flops

Mr Mutumwa Mawere

Mr Mutumwa Mawere

Fidelis Munyoro Chief Court Reporter
An attempt by over 900 SMM Holdings non-managerial workers’ to file a claim against the firm for salaries and benefits dating back to eight years ago has failed at the High Court.The company shut down its mining operations, Shabanie and Mashava Mines in 2004 after Government annexed the assets from businessman Mr Mutumwa Mawere through a reconstruction order, alleging the company was State-indebted and insolvent.

The workers applied to SMM Holdings administrator of Mr Afaras Mtausi Gwaradzimba for leave to sue the employer in terms of the provisions of the State-Indebted Insolvent Companies Act (Chapter 24:7).

Mr Gwaradzimba denied them leave to sue. The workers sought the intervention of the High Court to set aside Mr Gwaradzimba’s decision and allow them to sue SMM.

In a judgment handed down recently, Justice Lavender Makoni dismissed the application following the court’s finding that Mr Gwaradzimba had not denied them the relief they were seeking.

“It appears the applicants (workers) are operating on the assumptions that the fact that the respondent (Mr Gwaradzimba) did not respond to their letter means he had denied them leave,” said Justice Makoni.

“From the papers, one cannot say the respondent has denied the applicants leave.” It emerged during the hearing that Mr Gwaradzimba in his letter to the applicants advised of the measures he had taken to address the concerns of the workers.

He referred to a meeting which was attended by representatives of both managerial and non-managerial staff and their lawyers. It was also noted that the workers accepted the proposal made to offset the arrear wages with offers to buy the houses the workers were living in.

Mr Gwaradzimba further undertook to set up a meeting between the workers and Government authorities. His stance was that while he was pursuing these efforts, he did not see the wisdom of granting the leave.

Justice Makoni said in her view the position taken by Mr Gwaradzimba was reasonable in the circumstances. Mr Gwaradzimba said the judge exercised her discretion properly in terms of Section 6 of the Act.

“If his current efforts do not yield results, then the matter can be referred for arbitration,” she said. “Doing so at this stage would defeat the protection offered to companies under reconstruction against unnecessary litigation.”

In any event, if the workers were to obtain an order against SMM, they would not be able to execute the judgment as Section 6 (c) of the Act protects the property of a company under reconstruction against attachment or execution.

Jumo Mashoko and Partners acted for the workers, while Advocate Thabani Mpofu, instructed by Dube, Manikai and Hwacha, represented Mr Gwaradzimba.

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