BY CHARLES LAITON
FIRST Mutual Life Assurance (FMLA) has approached the High Court with an application for review following a dismissal of its application which sought to challenge the criminal charges preferred against it for failing to timeously pay a former employee’s terminal benefits.
According to court papers, FMLA is facing charges of “unreasonable delay in payment of an employee’s terminal benefits as defined in section 13(2) of the Labour Act”.
It is the State’s contention that in February 2011, FMLA, represented by Joseph Makwakwa, allegedly withheld and unreasonably delayed payment of wages and benefits owed to its former employee, Jackson Muzivi.
However, when the trial commenced on August 16, 2019 before Harare regional magistrate Morgan Nemadire, FMLA disputed the charge, arguing that the alleged offence had not been properly described and adequately particularised, such that it was vague.
In his determination, however, Nemadire threw out the application, prompting FMLA to approach the High Court for recourse.
“It is also clear from the second respondent [Nemadire]’s ruling that he did not exercise his mind to the first and main ground of the exception to the effect that the charge discloses no offence.
“The said failure by the second respondent to properly apply his mind to the nature and content of the subject clearly manifests through the remarkable brevity of his ruling of August 26, 2019. The ruling does not deal with the issue of whether the charge disclosed an offence. It only deals with the issue of whether the charge was sufficiently laid out,” Makwakwa said.
“While the second respondent was presented with detailed submissions by the defence counsel, with clearly laid out basis for saying the charge did not disclose an offence, he produced a three-page judgment which failed to deal with the pertinent issues raised in the exception.
“There was not the slightest reference in the ruling to relevant submissions from counsel and any basis for rejecting those submissions.”
Makwakwa said the terminal benefits, which his firm is said to have failed to pay, amounts to $864 842 640 as ordered in a 2011 Labour Court judgment.
“In 2011, because Zimbabwe had been two years into a multi-currency regime, the local currency had become moribund and could not be payable,” he said.
“There was also no applicable rate in 2011 which could be used to convert Zimdollars to United States dollars simply because there was no currency called Zimdollar.”