Elias Marufu, Munashe Solomon Mutanga, Philip Runganga & Penias Ncube (Representing 984 other Shabanie and Mashaba Mines non-managerial employees of SMM Holdings (Private) Limited Under Reconstruction) v Afaras Mtausi Gwaradzimba (N.O) (In his capacity as the Administrator of SMM Holdings (Private) Limited Under Reconstruction)

The applicants were non-managerial employees of SMM Holdings (Private) Limited, a company under reconstruction. They sought leave from the respondent Administrator to institute proceedings against SMM for unfair labour practice, specifically non-payment of wages, salaries and benefits dating back to 2009. The respondent denied them leave. By letter dated 27 January 2015, the applicants formally requested leave to sue in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act. The respondent responded on 29 January 2015, refusing leave and stating that he was pursuing alternative measures including negotiations, proposals to offset arrear wages with share allocations or house purchases, and meetings with government authorities. The applicants then approached the High Court seeking to set aside the respondent's decision and be granted leave to institute proceedings.

• Whether the applicants were properly before the court where 984 employees were represented without individual affidavits from each
• Whether the application should have been brought in terms of Order 33 of the High Court Rules (review proceedings) rather than under section 4 of the Administrative Justice Act
• Whether the respondent Administrator, as an administrative authority, properly exercised his discretion in refusing leave to sue under section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act
• Whether the court should set aside the Administrator's decision and substitute it with its own decision granting leave to sue

The application was dismissed. There was no order as to costs.

Where an administrator of a company under reconstruction exercises discretion under section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act to refuse leave to institute proceedings, the court will not interfere if the administrator has acted reasonably and in accordance with section 3(1) of the Administrative Justice Act. It is reasonable for an administrator to refuse leave to sue where alternative measures such as negotiations, proposals for settling arrears, and engagement with government authorities are being pursued, as premature litigation would defeat the protection offered to companies under reconstruction against unnecessary litigation. A large group of applicants can be properly represented in court through a joint authorization document signed by all members, without requiring individual affidavits from each person, particularly where obtaining individual affidavits would be impractical. Challenges to decisions of administrators under the Reconstruction of State Indebted Insolvent Companies Act may be brought under section 4 of the Administrative Justice Act without requiring compliance with Order 33 review procedures.

The court observed that even if the applicants were granted leave to sue and successfully obtained an order against SMM Holdings, they would not be able to execute the judgment because section 6(c) of the Reconstruction of State Indebted Insolvent Companies Act protects the property of companies under reconstruction against attachment or execution. This practical reality reinforced the reasonableness of the administrator's approach in pursuing alternative resolution mechanisms. The court also noted that section 6 of the Act is not meant to give companies under reconstruction amnesty from all actions under the guise of self-preservation, but must be balanced against constitutional rights including the right of access to courts (section 69) and rights to fair labour practices (section 65). The court emphasized that administrators must exercise discretion judiciously and in accordance with their responsibilities as administrative authorities.

This case clarifies important procedural issues in Zimbabwean administrative and labour law: (1) It confirms that large groups of employees can be properly represented in court proceedings through a joint authorization document rather than requiring individual affidavits from each person, applying the Mashave principles in the employment context. (2) It establishes that challenges to decisions of administrators of companies under reconstruction can be brought under section 4 of the Administrative Justice Act without needing to comply with Order 33 review procedures. (3) It illustrates the scope of discretion afforded to administrators under section 6 of the Reconstruction of State Indebted Insolvent Companies Act and confirms that courts will not interfere with reasonable exercises of that discretion. (4) It demonstrates the balance between employees' constitutional rights to fair labour practices and access to courts (sections 65 and 69 of the Constitution) against the protective regime for companies under reconstruction. The case shows that pursuing alternative dispute resolution and negotiated settlements is a legitimate basis for an administrator to refuse leave to sue, at least temporarily.