Willard Zidyambanje v Tobacco Industry Marketing Board

### Preamble
1
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/383/25
CASE NO. R LCH 745/25
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT NO. LC/H/383/25

CASE NO.	R LCH 745/25

IN THE MATTER BETWEEN:

WILLARD ZIDYAMBANJE	APPLICANT AND

TOBACCO INDUSTRY MARKETING BOARD	RESPONDENT

25 SEPTEMBER 2025 and 14 OCTOBER 2025 BEFORE THE HONOURABLE GONESI J

For the Applicant:	C Parenyi with S Chirorwe,

For the Respondents:	C B Mahara with N B Manyuru

GONESI J:

THE APPLICATION

This is an application for review where the applicant is seeking the following relief

:

That the application for review be and is hereby granted.

The disciplinary proceedings which resulted in the dismissal of the applicant

,they being unlawful, be and are hereby set aside in their entirety.

The applicant be and is hereby reinstated to his position without loss of salary and benefits or if reinstatement is no longer possible, the applicant be paid salaries and benefits for the remaining 24 months of the contract duration.

The respondent to pay costs of suit.

FACTUAL BACKGROUND

The applicant was employed by the respondent as a chief finance officer on a five-year fixed term contract. On the 24th June 2025, applicant was suspended from work and thereafter misconduct charges were preferred against him in terms of section 4(a) of the Labour National Employment Code of Conduct)Regulations, 2006:- “That is to say any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract”.  Applicant was later on subjected to a disciplinary hearing .It is the disciplinary proceedings that are the subject of this review application. Applicant raised the following grounds for review:

“The respondent erred at law by failing to conclude the disciplinary proceedings within the mandatory 14 days in terms of the section 6(2)(a) of the Labour (National Employment Code of Conduct)Regulations, 2006 (S.I 15 of 2006) thereby rendering the whole proceedings a nullity.(sic)

The respondent erred at law by appointing a disciplinary committee whose composition was not in line with the provisions of Labour(National Employment Code of Conduct )Regulations, 2006 (S.I 15/2006) which specifies the composition of the disciplinary committee.”

PRELIMINARY POINTS

At the commencement of these proceedings, applicant raised a preliminary point to the effect that no resolution had been filed by the deponent to the opposing affidavit as proof that he had authority from the board .Applicant therefore urged the court to disregard the opposing affidavit filed on behalf of the respondent and have the case proceed as an unopposed matter.

The applicant had written a letter to the Registrar on the eve of these proceedings indicating that they were going to challenge the authority of the deponent of the opposing affidavit for failure to attach a board resolution. The respondent therefore, filed the said board resolution before the commencement of the hearing.

That being said, the applicant nonetheless insisted that they were going to persist with the preliminary point.

It was Mr Parenyi’s contention that the notice of opposition was defective in that at the time of deposing the affidavit, the deponent failed to attach proof of authority in the form of a board resolution. It was counsel’s argument that the respondent had tried to rectify the anomaly in an unacceptable way through a notice of filing. Counsel submitted further that the board resolution was to be produced through a sworn affidavit and only then could it be admitted as evidence rather than through a notice of filing as in casu.

Counsel argued that by accepting the resolution in the manner it was presented by the respondent it will be as good as the legal practitioners have taken over the case for the respondent. It was therefore counsel’s prayer that the notice of filing be expunged from the record and the matter be dealt with as an unopposed case. Counsel relied on the case of AROSUME   PROPERTY   DEVELOPMENT   (PVT)   LTD   VS

MASHONGANYIKA & ANOR HH 143/25 for his proposition.

Per contra ,Mr Mahara challenged the manner in which the preliminary point was taken by the applicant .He argued that the point in limine was raised through a letter filed at the 11th hour .Counsel contended further that the applicant had ample opportunity to raise the point through their heads of argument, something they chose not to do until the last hour.

It was Mr Mahara’s contention that as the representatives of the respondent they had to file the board resolution on behalf of their clients and this did not in any way make them litigants. In any event the board resolution was on respondent’s letter head ,so argued counsel, as proof that it originated from the respondent. Mr Mahara submitted that though a point of law can be raised at any time, for it to be acceptable it ought to have been pleaded, must not cause prejudice and must not require further evidence.

Counsel cited the case of Saviour Kasukuwere vs Lovedale Mangwana SC78/23 in support of this argument.

THE LAW ON COMPANY REPRESENTATIVES

The law is settled that a company being an artificial or legal person must be represented in any legal proceedings by a person who has been authorized by the company to do so. It is also trite that the person must be authorized by a valid company resolution to institute proceedings on its behalf. This legal position was authoritatively set out in Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S) at 516 B-E where CHEDA JA said:

“It is clear from the above that a company, being a separate legal persona from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well- established legal principle, which the courts cannot ignore. It does not depend on the pleadings by either party...”

The above position was also confirmed in Dube v Premier Service Medical Aid & Anor SC 73/19 where on para 38 of the cyclostyled judgment the court held that:

“The above remarks are clear and unequivocal. A person who represents a legal entity, when challenged, must show that he is duly authorized to represent the entity. His mere claim that by virtue of his position he holds in such an entity he is duly authorized to represent the entity is not sufficient. He must produce a resolution of the board of that entity which confirms that the board is indeed aware of the proceedings and that it has given such a person the authority to act in the stead of the entity. I stress that the need to produce such authority is only necessary in those cases where the authority of the deponent is put in issue. This represents the current status of the law in this country.” (my emphasis)

In casu, the authority of the deponent to the opposing affidavit having been challenged, the deponent produced a board resolution authorising him to represent the respondent. The production of the board resolution puts an end to the argument between the parties .

Had the deponent to the opposing affidavit failed to produce the board resolution after being challenged to produce one, it was going to be a different issue. The preliminary point has been overtaken by events and as a result it cannot stand and the matter must be decided on the merits.

RESPONDENT’S PRELIMINARY POINTS

The respondent had also taken preliminary points with regards to the issue of the relief sought being incompetent at law and secondly that the applicant had waived his right to challenge the composition of the disciplinary tribunal.

The preliminary points raised by the respondent cannot be separated from the merits of the matter and as such the determination of same will be deferred and be incorporated in the main judgement.

APPLICANT’S SUBMISSION ON THE MERITS.

Mr Parenyi reiterated that the application before the court was mainly on two grounds as more fully appears from the grounds of review filed of record.

Ground of Review 1

In motivating this ground, counsel submitted that the Disciplinary proceedings were to be done within 14 days in terms of the National Employment Code. It was Counsel’s contention that a suspension initiated the proceedings whilst a determination terminated the proceedings. Mr Parenyi argued that by the 11th July 2025 when the disciplinary tribunal pronounced “…In the circumstances we recommend that the penalty of dismissal be imposed against the employee in this matter.” ,the disciplinary hearing had not yet been concluded. Counsel argued that the recommendation was to be submitted to the employer for his final determination which was only communicated on the 17th July 2025 well after the mandatory 14 day period.

Mr Parenyi further argued that ,the couching of the termination letter showed that proceedings were not yet concluded as at the 11th July 2025 when the termination letter was drafted. The determination was only received on the 17th July 2025 a few days after the mandatory 14 day period. This vitiated the disciplinary proceedings as the mandatory time lines had not been followed ,so submitted counsel. Mr Parenyi submitted further that it was actually the first time for the employer to be communicating with the employee on the 17th July 2025.Counsel argued that the obligation to communicate the disciplinary penalty and findings is on the employer and as such the termination letter received on the 17th July 2025 after the mandatory 14 day period was proof that the disciplinary proceedings were a nullity. Counsel urged the court to consider the case of Traditional Medical Practitioners Council vs Joyce Guhwa SC 105/24

Ground of Review 2

In motivating this ground, Mr Parenyi submitted that the Disciplinary Committee was improperly constituted. The primary evidence, so argued counsel are the minutes of the disciplinary proceedings and they are clear that applicant appeared before a disciplinary committee. Counsel contended that the composition of the disciplinary committee was supposed to be in line with the law which was not the position in the disciplinary proceedings that are subject to the review application before the court.

Mr Parenyi argued further that the Respondent by styling the tribunal firstly as a disciplinary committee and later on as a disciplinary authority should be frowned at as this was tantamount to playing hide and seek. Counsel submitted that the members of the disciplinary committee did not form part of the Respondent’s workforce and as such the disciplinary committee was improperly constituted. In any event, the law did not prohibit the employer from constituting a disciplinary committee, so argued Mr Parenyi.

Mr Parenyi prayed for the application to be granted and have the disciplinary proceedings set aside .It was counsel’s prayer that the status quo be maintained through an order that applicant be reinstated without loss of salary and benefits.

RESPONDENT’S SUBMISSIONS ON THE MERITS

Response to Review Ground 1

Mr Mahara submitted that the first ground of review was unmerited in that a simple computation showed that from the 24th June 2025 when Applicant received the suspension letter ,disciplinary proceedings were supposed to be completed by the 14th July 2025.Counsel argued that from the day of suspension to the 14th July 2025, a determination was issued and hence the hearing was concluded within 14 days as per the statutory requirement.

Mr Mahara submitted that all the procedural and substantive rights were properly accorded to the applicant within the 14 day period. Counsel argued that the determination and adoption of the recommendation was done within 14 days. The termination letter showed that the determination was handed down on the 11th July 2025 so submitted counsel.

Mr Mahara argued further that the serving of the determination on an employee was not compulsory and as such applicant’s contention that the hearing was not concluded within 14 days simply because the communication from the employer was received at his erstwhile legal practitioners offices on the 17th July 2025 after the mandatory 14 day period is not sustainable. It was counsel’s contention that since the provisions regarding the serving of the decision were couched in the directory and not peremptory terms, then whether the employer decided to serve the determination within 14 days or not , that conduct did not amount to an unfair conduct. Counsel submitted that the recommendation to terminate was adopted on the 13th day of the 14th day mandatory period.

Counsel urged the court to follow the reasoning in Cimas Medical Aid Society vs Tapiwa Nyandoro SC 444/14.It was counsel’s submission that Applicant as a managerial employee and in terms of the contract of employment, the Respondent’s board was supposed to adopt the recommendation first and thereafter the employer’s position would be communicated to the Applicant as in casu.

RESPONSE TO REVIEW GROUND 2

On the composition of the disciplinary tribunal ,it was Counsel’s submission that as at the 24th June 2025,applicant was aware of the disciplinary tribunal he was going to appear before. Mr Mahara argued further that applicant never objected to the composition of the disciplinary tribunal. Counsel submitted that the applicant had received proper legal advice as he was legally represented during the disciplinary hearing and cannot therefore seek to challenge the composition now.

Mr Mahara argued that applicant had a misperception of the tribunal he was appearing before and that was the reason why in written closing submissions and mitigation ,applicant referred to the tribunal as an independent disciplinary committee whilst it was a disciplinary authority and throughout the proceedings , the employer referred the tribunal as the disciplinary authority.

Counsel further submitted that at all material times the Respondent addressed the tribunal as the disciplinary authority. Mr Mahara argued that the applicant sought to benefit from his own mistake , something which was against public policy. Mr Mahara submitted that the nature of the disciplinary tribunal was given as a right to the employer and in this case the employer chose an independent disciplinary authority considering that the complainant was the chief executive officer and the accused the chief financial officer which are managerial positions warranting the disciplinary process to be handled by an independent disciplinary authority.

Turning on to the preliminary points, on the issue of waiver, Mr Mahara submitted that applicant waived his right to challenge the propriety of the composition of the tribunal. Counsel contended that applicant was legally represented during the disciplinary proceedings and yet he never challenged the composition and as a result acquiesced by participating in the disciplinary hearing process before the disciplinary tribunal he seeks to impugn at this stage.

In addressing the second preliminary point, counsel submitted that the relief sought by the applicant is incompetent at law. Mr Mahara argued that applicant as at the 24th June 2025 was suspended without pay and benefits. The applicant would therefore revert to the position of suspension as such was never rendered defective .It was also counsel’ submission that applicant did not make a factual pleading for the matter to be remitted to the disciplinary authority aquo and as such the prayer being devoid of that averment could not be amended .Counsel contended that the prayer will result in the application being struck off the roll.

RESPONSE BY APPLICANT

Mr Parenyi contended that once the proceedings were declared a nullity, there would be nothing to talk about. Once the present application was granted, the proceedings became a nullity and resultantly parties would revert to the status quo ante and the applicant will be reinstated. Counsel submitted further that suspension could not be alive for more than 14 days and as such the contention by the respondent’s counsel that the status quo is on suspension is not sustainable in the given circumstances.

COMMON CAUSE

The parties are in agreement with regards to the following issues:

The suspension letter was served on the 24th June 2025.

The suspension letter invited the applicant to appear for the disciplinary hearing before an independent disciplinary authority.

The applicant was legally represented during the course of the disciplinary hearing.

The applicant exercised all his procedural rights in the proceedings aquo in that

He was given an opportunity to call witnesses and he indicated he did not have any witnesses.

He freely stated his defence and had a chance of testing the evidence of the witnesses through cross examination.

He was informed of the reasons for a decision

He was given an opportunity to make address on mitigation before the ultimate penalty was imposed.

The recommendation for the penalty and the reasons for the penalty were received within the mandatory 14 day period.

The termination letter though dated 11th July 2025 was received by the Applicant on the 17th July 2025 through his erstwhile legal practitioners.

ISSUES FOR DETERMINATION

The issues that remain unresolved are

Whether or not the disciplinary hearing was completed within 14days in terms of the National Code of Conduct Regulations.

Whether or not the disciplinary tribunal was properly constituted in terms of the National Code of Conduct Regulations.

APPLICATION OF THE LAW TO THE FACTS.

i. Whether or not the disciplinary hearing was completed within 14 days in terms of the National Code of Conduct Regulations.

In order to properly resolve the issue, it is important to go to the specific section that provides the procedure for handling a disciplinary hearing.

Disciplinary Procedure

“6(1) Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.

6 (2) Upon serving the employee with the suspension letter in terms of subs (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case—

serve notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or

serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.”

In casu we need to establish what happened after the Applicant had been served with the letter of suspension.

On the 24th June 2025 applicant was formally charged and invited to appear before the disciplinary authority.

On the 1st July 2025 applicant appeared before the disciplinary authority for the disciplinary hearing.

The respondent filed closing submissions on the 4th July 2025

The applicant filed closing submissions	on the 7th July 2025

On the 10th July 2025 the committee reconvened but due to the pressing commitments from both parties and the

Chairperson , the final ruling was sent to the parties through email as per page 44 of the consolidated record.

After receiving the final ruling, applicant and respondent agreed to file the mitigation and aggravation.

Respondent and applicant filed submissions in aggravation and mitigation respectively on the 10th July 2025.

The committee set on the 11th July 2025 and the Chairperson read out the penalty. The full written reasons for the penalty imposed was sent to both parties through email on the same day

The termination letter by the respondent is dated 11 July 2025 but was however received by applicant’s erstwhile legal practitioners on the 17th July 2025.

What is clear from the above exposition is that all the disciplinary procedural steps including filing of closing submissions ,verdict determination ,submission of aggravation and mitigation as well as penalty determination were concluded within the prescribed 14 day period. The disciplinary authority discharged its mandate within the prescribed time frame.

Applicant is challenging being served with the determination after the expiration of the mandatory 14 day period and alleges that as such the disciplinary proceedings were not completed within the prescribed time frames. This argument goes against the intention of the legislature when it enacted these provisions. The intention of the legislature was for disciplinary proceedings to be conducted promptly. This is what was done in casu and for the applicant to seek to have the proceedings declared a nullity is misplaced. The echoes by the learned judge Chidyausiku CJ as he then was in the case of Air Zimbabwe (Pvt)Ltd -vs- Chiku Mnensa & Anor SC 89/04 are instructive. It was held that “A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly…

He should escape such consequences because he is innocent”. In any event, it is clear that the issue of serving the letter of determination is not compulsory.

The intention of the legislature in coming up with the National Employment Code Regulations was to minimise delays in the handling of disciplinary proceedings as can be gleaned from section 3(b). “The objectives of the code shall among other issues include the following:-

(b) to	ensure	consistency		and	prompt	action	by	the	responsible administering official or committee on issues concerning discipline. Furthermore,		all	the	procedural	rights	attended		to	 disciplinary proceedings in terms of the code were availed to the applicant and as such there is no justification in having the disciplinary proceedings set aside.

Whether or not the disciplinary tribunal was properly constituted in terms of the National Code of Conduct Regulations.

In addressing this aspect, it is pertinent to note that when the Applicant appeared initially before the Disciplinary authority, he never challenged its mandate nor its composition. Applicant’s conduct of seeking to challenge the composition of the disciplinary authority is considered as an afterthought only meant to help applicant escape the verdict of the disciplinary authority .By participating in the disciplinary process

,applicant acquiesced and waived his right to challenge the propriety or otherwise of the composition of the disciplinary authority. In Pacprint (Pvt) Ltd-vs-Kumbula & Ors SC 67/17 it was held that a party who fails to raise a procedural objection at the earliest opportunity and proceeds to participate in the process is deemed to have acquiesced. In the result , the present application being devoid of merit will be dismissed in it’s entirety.

DISPOSITION

In the result, the application is dismissed for lack of merit.

Each party to bear its own costs.

Chirorwe and Partners Legal Practitioners , applicants’ legal practitioners

Muvingi Mugadza Legal Practitioners, respondent’s legal practitioner