Zimbabwe Diamond & Allied Minerals Workers Union and Another v Riozim Limited and Others (SC 201/26) [2026] ZWSC 17 (12 August 2026)

1Judgment No. SC 50/26Chamber Application No. SC 201/26 REPORTABLE (50) (1) ZIMBABWE DIAMOND & ALLIED MINERALS WORKERS UNION (2) PRECIOUS MWANZA (3) OWEN KAPETA v (1) RIOZIM LIMITED (2) MASTER OF THE HIGH COURT (3) THE REGISTRAR OF COMPANIES SUPREME COURT OF ZIMBABWE HARARE: 20 APRIL 2026 & 12 AUGUST 2026 T. Magwaliba, for the applicants E. Mubaiwa, for the first respondent No appearance for the second and third respondents IN CHAMBERS CHIWESHE JA: This is an application for condonation for non-compliance with r 61(6) of the Supreme Court Rules, 2025 (‘the rules’) and reinstatement of the appeal under SC 18/26, made in terms of r 76(2) of the rules. BACKGROUND FACTS The first applicant is the Zimbabwe Diamond & Allied Minerals Workers Union, a registered trade union representing employees in Zimbabwe's diamond and allied minerals sector. The second and third applicants are natural persons and members of the first applicant. The first respondent, Riozim Limited, is a company duly incorporated under the laws of Zimbabwe. The second respondent is the Master of the High Court, cited in his official capacity for purposes of 2Judgment No. SC 50/26Chamber Application No. SC 201/26 enforcement. The third respondent is the Registrar of Companies, also cited in his official capacity in terms of the Companies and Other Business Entities Act [Chapter 24:31]. Before the court a quo, the applicants sought an order placing the first respondent under corporate rescue in terms of Part XXIII of the Insolvency Act [Chapter 6:07] (‘the Act’). The first applicant, representing the first respondent's employees, instituted the application on behalf of its members. In contrast, the second and third applicants, being an employee and a former employee of the first respondent respectively, also claimed standing as affected persons under the Act. They alleged that the first respondent was financially distressed. They argued that corporate rescue would protect affected persons, preserve shareholder value, and improve the company’s management following the death of its majority shareholder. The application was opposed. The applicants raised preliminary objections challenging the first respondent’s authority to oppose the application, the validity of its board resolution, and its entitlement to oppose the proceedings after allegedly accepting corporate rescue. They further argued that the commencement of corporate rescue proceedings deprived the directors of authority to act. In response, the first respondent maintained that its board resolution was valid, the deponent was duly authorised, and that the doctrines of approbation and reprobation and statutory bar were inapplicable. In turn, the respondents raised preliminary objections that the applicants lacked locus standi, had failed to notify affected persons, had filed defective affidavits, and had instituted the proceedings without proper authority. The applicants disputed each of these objections, contending that they had complied with the Act and that any substituted service was necessitated by the first respondent's refusal to provide relevant information. 3Judgment No. SC 50/26Chamber Application No. SC 201/26 On the merits, the applicants submitted that the first respondent was financially distressed and that corporate rescue would preserve the company and protect employees’ interests. They relied on the company's financial position and adverse audit reports as evidence of financial distress. Contrarily, the first respondent denied being financially distressed, arguing that the applicants had produced no current evidence to justify corporate rescue. It further argued that the application was frivolous, vexatious, and an abuse of process warranting dismissal with punitive costs. DECISION OF THE COURT A QUO In considering the application for the placement of the first respondent under corporate rescue proceedings in terms of the Act, the court a quo noted that corporate rescue is a process aimed at rehabilitating financially distressed companies through temporary supervision, a moratorium on creditors’ claims, and the implementation of a rescue plan. The court a quo dismissed the preliminary objections against the first respondent’s authority to oppose the application. In doing so, it held that the board resolution was valid, the first respondent had consistently opposed the proceedings, and the company was entitled to defend itself before being placed under corporate rescue. The court a quo upheld the first respondent’s objection on locus standi. It found that the applicants were not affected persons under s 121 of the Act because the trade union represented employees in the mining industry generally and not employees of the first respondent. The application was therefore dismissed. The court a quo declined to award punitive costs, holding that the matter raised important legal issues and was not frivolous, vexatious, or brought in bad faith. 4Judgment No. SC 50/26Chamber Application No. SC 201/26 Aggrieved by the decision of the court a quo, the applicants sought to appeal against that decision. They filed an appeal under SC 18/26. However, it failed to pay the required security for costs. On 17 February 2026, the Registrar notified the parties that the appeal under case number SC 18/26 had been deemed abandoned in terms of rr 61(5), 61(6) and 76(1). It is against this backdrop that the applicants filed the present chamber application in terms of r 76(2) of the Supreme Court Rules, 2025 seeking the reinstatement of their appeal. SUBMISSIONS BEFORE THIS COURT Both parties raised preliminary objections which, if upheld, would be dispositive of the application. The applicants submit that the first respondent’s opposition was invalid and that the matter should therefore be treated as unopposed. They argued that the board resolution authorising the deponent of the opposing affidavit was defective because it was signed by A.T. Murimirwa, who was not reflected in the official Zimbabwe Stock Exchange records as the first respondent’s company secretary. The applicants contended that their averment on this issue remained unchallenged and that the records identified another person as the company secretary. They further argued that the resolution bore a stamp identifying Murimirwa as a company secretary of a different entity, Rio Zimbabwe Management Services (Pvt) Ltd, rather than RioZim Limited. On that basis, they submitted that Murimirwa lacked authority to sign the resolution and that the purported resolution could not validly authorise the first respondent’s opposition. The first respondent submitted that the applicants’ application should be dismissed on both preliminary and substantive grounds. The first respondent argues that the application is improperly before the Court as the applicants had given them the wrong dies induciae of 5 days 5Judgment No. SC 50/26Chamber Application No. SC 201/26 instead of 3 days as provided for under r 50 of the Supreme Court Rules. Mr Mubaiwa, for the first respondent, was of the view that the applicants had infringed the rules of the Court by failing to pay the security of costs in time. Accordingly, they ought to proceed under r 50, which provides for condonation and not r 46, which applies to general applications Counsel further submitted that the applicants had failed to seek condonation for their non-compliance with the applicable procedural requirements. He argued that the applicants could not simply explain their default without properly seeking the court’s indulgence and demonstrating good cause for the non-compliance. He argued that condonation was only sought in the draft order and was not properly sought in the application itself. He therefore contended that the applicants’ failure to seek condonation rendered the application fatally defective and constituted a basis for dismissing the application. In advancing these arguments, Mr Mubaiwa heavily relied on the authority of Cape Valley Properties (Pvt) Ltd & Ors v Chiduku & Ors S 113/23 (‘the Cape Valley judgmnet’) in which UCHENA JA struck off the roll the application for condonation and reinstatement because the applicants had given the respondents the dies induciae of 10 days to file their opposing papers instead of 3 days as provided under r 43(5) of the then Supreme Court Rules, 2018. He further argued that the first applicant lacked locus standi because it represented employees in the broader diamond mining and allied industry, rather than employees of the first respondent specifically. He further contended that the applicants had failed to notify all affected persons as required by the Insolvency Act, that their founding affidavits were improperly commissioned, and that the first applicant lacked authority to institute the proceedings. 6Judgment No. SC 50/26Chamber Application No. SC 201/26 In response to the applicants’ objections, the first respondent maintained that its board resolution was valid and that s 205 of the Companies and Other Business Entities Act did not govern the validity of the resolution. It also denied having approbated and reprobated, arguing that it had consistently opposed the corporate rescue proceedings. Further, it submitted that the statutory moratorium did not prevent the company from defending an application seeking its placement under corporate rescue and that the board was only divested of its powers after the company had been placed under supervision. At this stage the court is called upon to decide one issue, namely, whether or not the application is properly before it. THE LAW The Court is being called to determine if the application is properly before it in view of allegations that the applicants did not seek condonation, there is no competent resolution, and the applicants have given wrong dies induciae. The present application is made in terms of r 76 of the Supreme Court Rules, 2025. The provision states as follows: “76. Reinstatement of appeals and applications generally. (1) Where an appeal or application is— (a) deemed to have lapsed; or (b) regarded as abandoned; or (c) deemed to have been dismissed in terms of any provision of these rules; The registrar shall notify the parties accordingly. (2) The appellant or applicant, as the case may be, may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.” I will pause to observe that the present application is indeed for reinstatement of an appeal that has been deemed abandoned and dismissed by operation of law after failing to pay the security for costs. In the circumstances, it is fundamental to note that a party that infringes the rules 7Judgment No. SC 50/26Chamber Application No. SC 201/26 of the court ought to first seek condonation for non-compliance before seeking any other relief. In casu, the applicants have not done so. They have only applied for reinstatement of their appeal without seeking condonation for non-payment of costs within the prescribed timelines. SUBMISSIONS BEFORE THIS COURT After considering the written and oral submissions of counsel, it is apparent that the appeal in case number SC 18/26, which was deemed abandoned and dismissed by operation of law, is not without recourse. Rule 76 of the rules provides a mechanism for seeking its reinstatement. It is an established principle that, once an appeal is deemed abandoned and dismissed by operation of law, it is removed from the roll, and the appropriate remedy lies in an application for its reinstatement. Mr Mubaiwa, for the first respondent submitted that the applicants had given the respondents the wrong dies induciae of five days instead of three days as required by r 50 of the Supreme Court Rules, 2025. The premise of this argument is that the applicants infringed the rules of the Court hence they could not rely on rr 46 and 76 only but r 50. Mr Mubaiwa heavily relied on the Cape Valley judgment supra. Mr Mubaiwa further argued that the applicants failed to seek condonation for their non-compliance with the applicable procedural requirements for payment of security for costs. He argued that the applicants could not merely explain their default without properly seeking the Court’s indulgence and demonstrating good cause for the non-compliance. The first respondent further contended that condonation had only been sought in the draft order and had not been properly sought in the application itself. Accordingly, he submitted that the failure to seek 8Judgment No. SC 50/26Chamber Application No. SC 201/26 condonation rendered the proceedings procedurally defective and constituted a basis for dismissing the application. In response, Mr Magwaliba, for the applicants, maintained that the applicants had sought condonation for their non-compliance. They contended that the relief sought was reflected in the draft order accompanying the application and that the Court was therefore seized with a request for condonation. He further maintained that the failure to furnish security for costs, which resulted in the appeal being deemed abandoned, was attributable to the negligence and procedural oversight of their former legal practitioners. ANALYSIS The rules provide for reinstatement of an appeal that has been deemed abandoned and dismissed under r 76. In casu, the appeal was deemed abandoned and dismissed since the applicants had not paid security for costs within the prescribed time. The redress to this infraction is as provided for in the rules. The applicant ought to file for condonation for non-compliance with the rules and reinstatement of the appeal. In the case of Gazi v Mbababala Properties (Pvt) Ltd S 24/23, M AVANGIRA JA, sitting in chambers, stated as follows: “It is my considered view that in such a situation, a litigant, on becoming aware by itself, of the fate of its appeal by reason of operation of the law per r 55 as read with r 70, may properly apply for condonation of non-compliance with the rules and for the extension of time within which to file an application for reinstatement.” The case of Goyel v Myrammar Farming (Pvt) Ltd & Ors S 59/24 is at all fours with the present matter with regards to a party’s failure to seek condonation after an infraction of the rules of the Court. Failure to seek condonation renders the application fatally defective. 9Judgment No. SC 50/26Chamber Application No. SC 201/26 In light of the foregoing, the applicants were required to seek condonation for their non-compliance with r 66. They failed to do so. Their application is therefore fatally defective and ought to be struck off the roll. This conclusion is reinforced by the settled principle that an application stands or falls on the founding affidavit. See Chironga & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors CCZ 14/20 at p 8. Although the applicants referred to condonation in their draft order, they failed to seek or motivate that relief in their founding affidavit. A draft order cannot cure such an omission. I therefore find that there is no proper application for condonation before this Court. Having found that the applicants’ failure to seek condonation renders the application fatally defective, it is no longer necessary to determine the remaining preliminary points or to consider the merits of the application. In view of the fact that the matter is improperly before the court, it ought to be struck off the roll. The point is dispositive of this application. DISPOSITION For the reason that this application is not properly before the Court, the matter should be struck off the roll. The first respondent has prayed for an order of punitive costs. No plausible reason has been advanced to justify such an award. It is therefore ordered as follows: “The matter be and is hereby struck off the roll with costs.” Makwanya Legal Practice, applicants’ legal practitioners. Wintertons Legal Practitioners, 1st respondent’s legal practitioners.