Johannes Manyenga v Petrozim Line (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/31/22
HELD AT HARARE ON 18TH JANUARY, 2022
CASE
JUDGMENT NO. LC/H/31/2022
CASE NO. LC/H/442/21
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/31/22

HELD AT HARARE ON 18TH JANUARY, 2022               CASE NO.LC/H/442/21

AND 11TH FEBRUARY, 2022

In the matter between:-

JOHANNES MANYENGA							APPLICANT

AND

PETROZIM LINE (PRIVATE) LIMITED				RESPONDENT

Before the Honourable Makamure, J.

For the Applicant	:		Mr. L. Uriri (Legal Practitioner)

For the Respondent	:	Mr. P. Dube (Legal Practitioner)

MAKAMURE J.

This is an application for leave to appeal a judgment of this Court (Judgment LC/H/124/2021) to the Supreme Court.  It is contested.

Appeals against decisions of the Labour Court are noted in terms of Section 92F of the Labour Act [Chapter 28:01] which provides that:

“(1) 	An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court”.

The proposed grounds of appeal are that and I quote:

“1.	The court aquo erred at law by ruling as it did that the Appellant was appointed Respondent’s Acting General Manager whereas at law and in fact such appointment was never made.

2.	The court aquo erred at law and in fact by failing to hold as it ought to have done, that the Respondent by the deliberate action of the General Manager, the Appellant did not have any responsibility over operational matters and as such was disabled and excluded from making any reports on operational challenges.

The court aquo grossly misdirected itself in holding as it did that as an appellate court it could not interfere with the findings of the lower tribunal where it was necessary to do so.”

The requirements for leave to have been discussed in a number of authorities.

In HURUNGWE RURAL DISTRICT COUNCIL v (1) JORAM MISHECK  MOYO (2) KAROI MUTENGA (3) JACKSON MUSHINGE SC 37/21.  The Supreme Court (Manthonsi JA) quoted with approval from NGAZIMBI v MUROWA DIAMONDS (PVT) LTD 2013 (1) ZLR 569 (S) at 572 G:

“It is important to relate the requirement for an application for leave to appeal to the purposes thereof.  These are for the decision to be made on questions whether the grounds of appeal relate to questions of law and the existence of success on appeal.”

It is necessary to refer to authorities as to what constitutes a question of law.  In respect of this I can do no better than refer to the case of: SABLE CHEMICALS INDUSTRIES LIMITED v EASTERBROOK 2010 (2) ZLR 342 (S) where the Supreme Court defined what constitutes a point of law as follows:

“The term ‘question of law’ is used in three distinct though related senses.  First, it means ‘a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it truly fit in accordance with what is considered to be the truth and justice of the matter’.  Second it means ‘a question as to what the law is  Thus an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter:  And third, ‘any question which is within the province of the Judge instead of the jury is called a question of law –

See MUZUVA v UNITED BOTTLERS (PVT) LTD 1994 (1) ZLR 217 (S), 220 (D-F).  The position is also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to determine accordance to law”.

See also ZIMBABWE REVENUE AUTHORITY v CHESTER MUDZIMUUNOONA SC 4/18; RESERVE BANK OF ZIMBABWE v GRANGER & ANOTHER SC 34/01; JAINOS ZVOKUSEKWA v BIKITA RURAL DISTRICT COUNCIL SC 44/15.

In the present matter judgment LC/H/124/2021 upheld the earlier tribunal’s decision finding the appellant guilty of: committing any act of conduct or omission in consistent with the fulfilment of the express or implied conditions of his contract.  The allegations were that on dates particularised in the change letter, while he was Acting General Manager he –

“failed and or neglected to advise the Board of the various problems and challenges that the company was facing.  He faced two counts and the earlier tribunal found him guilty of both.”

The facts which are largely common course are that indeed the Applicant did not bring to the attention of the Board the challenges in question.  It is also not disputed that the Appellant was appointed to the respondent company in the capacity of Deputy General Manager.  Further when the General Manager had reason to be away from work the General Manager would advise the staff of her absence through email.  Through this same email the General Manager would indicate that the Applicant ‘will be acting during my absence’.  The email would be sent to the Appellant and others.  The respondent’s position is that the appellant was aware of his responsibilities through that communication.  He had access to the Board Chair who he could have advised of any challenges since the Board never sat during the periods in question.  It is also not disputed that the Board never sat for the periods the Applicant was supposed to submit the reports in question.

The Applicant’s position is that a “Board” is constituted when all members are properly constituted and sit.  The Board Chair is not the Board. For that reason the applicant argues that there was no Board for him to report to.  In CUTHBERT ELKANA DUBE V (1) PREMIER SERVICE MEDICAL AID SOCIETY (2) PREMIER SERVICE MEDICAL INVESTMENTS SC 73/19 (which quotes with approval what was stated in MADZIVIRE & OTHERS v ZVARIVADZA HH 74/2000) the Supreme Court stated that:

“…The general rule is that the directors of a company only act validily when assembled at a Board Meeting.”

This is the correct position.  However in the circumstances of the present matter the question remains that of the applicant’s position as Deputy General Manager and his responsibilities.

It was argued on behalf of the Applicant that he failed to execute his duties due to the ‘objective impossibility to execute a legal obligation’.  In support of this argument Mr. Uriri referred the Court to SC ELLIOT v COMMISSIONER OF POLICE & ANOTHER 1997 (1) ZLR 315.

It was also argued that one of the authorities relied on by the court that is CIRCLE CEMENT v CHIPO NYAWASHA SC 60/03 was not appropriate in support of a factual finding.

In response Mr. Dube argued that the applicant had failed to prove that the Court had erred in any respect.  With respect to authority cited by the Court Mr Dube submitted that he would have relied on MUYAKA v BAK LOGISTICS (PVT) LTD SC 39/17 where the point was made that an appellate court will not interfere with findings of a lower court unless their findings were grossly unreasonable.  The use of the authority of CIRCLE CEMENT v NYAWASHA (above) by the Court is in my view arguable.  The particular quote referred to actually takes into account both factual findings leading to a repudiation of a contract of employment after which the question of the employer exercises their discretion comes in.  Whether or not the authority cited is wrong does not in my view remove the failure of the Applicant to execute his duties.  It is however my considered view that the Supreme Court considers argument.

After considering argument and the papers, I still hold the view that the lower tribunal correctly found against the Applicant as reflected in my judgment.  This is so considering the circumstances of the case.  The case of ELLIOT v COMMISSIONER OF POLICE & ANOTHER (above) is distinguishable from the present matter taking into account what the applicant was expected to do.

The question of what constitutes a point of law has been considered by the Supreme Court on numerous occasions.  The question of whether the proposed grounds meet the threshold will be left for the esteemed view of the Supreme Court.  I do find that the issues raised on behalf of the applicant require the Supreme Court to consider.

In the result the following order is made:

The application for leave to appeal judgment of this court judgment number LC/H/124/2021 handed down on 27th August 2021 be and is hereby granted.

The Applicant files the Notice of Appeal in the Supreme Court within ten (10) days of this Order.

Costs shall be costs in the cause.

MUTUMBWA, MUGABE & PARTNERS – Applicant’s Legal Practitioners

DUBE, MANIKAI & HWACHA – Respondent’s legal practitioners