The Constitutional Court has upheld a High Court ruling declaring Section 28(2) of the Reconstruction of State-Indebted Insolvent Companies Act unconstitutional, clearing the way for 27 former Shabanie Mashava Mines (SMM) employees to pursue terminal benefits withheld for nearly 15 years, Mining Zimbabwe can report.
By Ryan Chigoche
The decision confirms that the provision unlawfully curtailed labour protections for employees of companies placed under reconstruction by preventing them from enforcing claims for benefits despite the employer acknowledging its indebtedness.
The application was brought by former SMM employee Josephat Gwatida and 26 others against the Minister of Justice, Legal and Parliamentary Affairs and the Attorney General, with Shabanie Mashava Mines cited as the third respondent. The Constitutional Court upheld a February 2025 High Court judgment delivered by Justice Sunsley Zisengwe, which found the provision inconsistent with the Constitution.
While suspending the declaration of constitutional invalidity for 180 days to allow the responsible minister to amend the legislation, the apex court ruled that workers’ constitutional rights cannot be restricted indefinitely simply because a company remains under reconstruction.
The judgment also brings renewed attention to the prolonged collapse of Shabanie Mashava Mines, once Zimbabwe’s sole asbestos producer and one of Africa’s largest chrysotile asbestos mining companies. Before financial difficulties forced the company into reconstruction in 2004, SMM employed more than 5,000 workers and formed the economic backbone of Zvishavane and Mashava.
Although successive administrations have announced plans to revive the mining giant, including proposals to attract investors, dewater underground workings and restart operations, the company has not returned to sustained commercial production. Earlier this year, the Government placed SMM under a fresh 24-month reconstruction order and appointed a new administrator in another attempt to revive the operation, while thousands of former employees continue to pursue unpaid salaries, pensions and terminal benefits accumulated over the years.
The dispute before the courts arose after the applicants’ employment was terminated in October 2011. Although SMM acknowledged owing them terminal benefits, the former workers were unable to pursue payment because Section 6(b) of the Reconstruction Act required them to obtain the reconstruction administrator’s permission before instituting legal proceedings against the company.
According to court papers, the workers submitted a written request seeking that approval but received no response, effectively leaving their claims in legal limbo as the reconstruction process continued without any statutory deadline.
In challenging Section 28(2), the applicants argued that the provision violated their constitutional rights to fair labour practices under Section 65(1) and equality before the law under Section 56(1) by indefinitely suspending protections available under the Labour Act.
Justice Zisengwe agreed, ruling that the provision imposed an unfair, unreasonable and unjustifiable limitation on workers’ constitutional rights. The High Court also noted that, unlike Zimbabwe’s Insolvency Act, which provides clear mechanisms and timelines for settling employees’ claims, the Reconstruction Act contained no comparable safeguards for workers whose employers remained under reconstruction.
The Constitutional Court, comprising Chief Justice Elizabeth Gwaunza and Justices Paddington Garwe, Annie Gowora, Ben Hlatshwayo, Bharat Patel, Susan Mavangira and Nicholas Mathonsi, unanimously upheld that reasoning.
The ruling is expected to have implications beyond Shabanie Mashava Mines, strengthening legal protections for employees of companies placed under reconstruction by affirming that prolonged corporate restructuring cannot be used to indefinitely delay or deny workers access to statutory employment benefits.
