The High Court has dismissed an appeal by Dinson Colliery (Private) Limited challenging a US$12,820.62 labour award granted to former employee Colina Muleya, ruling that a designated agent of the National Employment Council (NEC) for the Mining Industry had jurisdiction to determine the dispute despite the 2023 Labour Amendment Act.

The judgment, handed down by Justices Munamato Mutevedzi and Vivian Ndlovu in Bulawayo, settled a dispute that arose from the interpretation of amendments to Zimbabwe's labour laws and their effect on NECs and pending labour disputes.

Muleya had been employed by Dinson Colliery as a Marketing Officer until his employment was terminated on January 31, 2022. He subsequently referred an unfair dismissal dispute to the NEC for the Mining Industry.

A designated agent determined the dispute on August 16, 2023, finding that Muleya had been unfairly dismissed and awarding him US$12,820.62.

The award comprised US$1,307.70 in lieu of notice, US$251.48 for accrued leave, US$1,953 for wage underpayment, US$154.57 in gratuity, US$7,846.20 in damages in lieu of reinstatement representing 18 months' remuneration, and US$1,307.70 in outstanding wages for three months.

Dinson Colliery challenged the determination before the Labour Court, but its appeal was dismissed. The company subsequently appealed to the Supreme Court under case number SCB96/24, but withdrew that appeal on January 29, 2025, with a tender of costs. The Labour Court decision upholding the award therefore remained in force.

The company nevertheless did not satisfy the award.

Instead, Muleya sued Dinson Colliery in the Magistrates Court seeking recovery of the amount as a civil debt and later applied for summary judgment. Dinson opposed the application, arguing that the designated agent's determination was a nullity because it had been issued after the Labour Amendment Act No. 11 of 2023 came into effect.

The company argued that the amendment had abolished the NEC dispute-resolution mechanisms and therefore deprived the designated agent of jurisdiction to determine Muleya's case. It relied on an earlier Labour Court decision, DGL Investments Number 5 (Pvt) Ltd v Ndlovu & Ors.

The Magistrates Court rejected the argument, relying on Lafarge Cement (Zimbabwe) Ltd v Chatizembwa, and granted summary judgment in Muleya's favour. Dinson then appealed to the High Court.

However, the High Court found that the central issue was whether Dinson had a valid defence to prevent summary judgment and, specifically, whether the NEC agent's determination was valid.

The court noted that the Labour Amendment Act came into effect on July 14, 2023 and repealed and replaced section 56 of the Labour Act. It rejected the interpretation that the amendment had simply abolished all NECs.

According to the court, the amendment instead transformed NECs from voluntary bodies into statutory institutions that are mandatory and bind every employer. Their dispute-resolution powers were narrowed, while the councils were required to align with a new statutory framework and faced deregistration for failure to comply.

The judges also noted that the amendment did not contain transitional provisions expressly dealing with existing NECs or pending disputes. However, they held that the absence of a savings clause did not automatically mean that existing NECs had been abolished.

The court relied on the established principle that legislation is presumed to operate prospectively rather than retrospectively unless Parliament clearly indicates otherwise. It also referred to section 17 of the Interpretation Act, which protects rights, obligations, liabilities, proceedings and remedies arising under a repealed law.

The judges said the Labour Amendment Act contained no express provision declaring that pending NEC proceedings automatically lapsed when the amendment came into force. Nor did it state that determinations issued after July 14, 2023 in pending matters were invalid simply because they were issued after the amendment.

Had Parliament intended such consequences, the court said, it would have expressed that intention in clear and unambiguous terms.

In Muleya's case, the unfair dismissal dispute had already been instituted before the designated agent before the amendment came into force. The court therefore held that the amendment did not extinguish the pending proceedings or remove the agent's jurisdiction to conclude the matter.

The High Court further rejected the argument that the NECs had effectively become defunct overnight, saying such an interpretation would create serious disruption to the country's employment dispute-resolution system.

The court said such a reading would leave hundreds of employees without recourse in labour disputes and would retrospectively strip away vested rights and invalidate ongoing proceedings. It concluded that the intention of the amendment was to strengthen the NEC system through a more rigorous corporate governance framework rather than paralyse it.

The court consequently ruled that the designated agent had the power to make the determination and that, in the absence of any other challenge to its validity, the award remained lawful. Dinson's defence was therefore found to be unsustainable.

The judges also commented on the unusual procedure used by Muleya to enforce the award.

They noted that designated-agent decisions are not registrable as arbitral awards because there is no law providing for their registration. This has left workers who obtain final determinations facing difficulties in enforcing them.

The court observed that the absence of a registration mechanism had contributed to Muleya suing for the money as a civil debt. It referred to previous cases dealing with the enforcement problem and noted that the High Court had recently used its inherent jurisdiction and constitutional power to develop the common law to permit registration of a designated-agent award.

The court said that, given the existing legal difficulties, Muleya could not be blamed for adopting the route he followed.

The High Court ultimately dismissed Dinson Colliery's appeal and ordered the company to pay Muleya's costs.