Zealous Nyabadza v Conciliator P. Mgazi N.O. & Anor

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/36/25
HARARE 21 MAY 2024 AND
31 JANUARY 2025
CASE NO LC/H/857/22-1
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 21 MAY 2024 AND

31 JANUARY 2025

JUDGMENT NO LC/H/36/25 CASE NO LC/H/857/22-1

ZEALOUS NYABADZA	APPLICANT

CONCILIATOR P. MGAZI N.O.	1st RESPONDENT

NATIONAL PHARMACEUTICAL COMPANY	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-	S.T. Mutema, Attorney

For Respondent	-	P. Dube, Attorney

MUSARIRI, J:

On the 26th March 2024 the Supreme Court issued an order referenced SC 68/24 wherein it inter alia directed this Court to

“… to give its determination on the second preliminary point raised before it.”

On the 16th August 2024 this Court directed 2nd Respondent to file/uphold documents in terms of which IG, Dumba was appointed as its Acting Managing Director. The documents have not been filed to date. The aforesaid second preliminary point was to the effect that Dumba was appointed as Acting Managing Director of 2nd Respondent in violation of the Public Entities Corporate Governance Act Chapter 10:31 hereafter called the Act. Applicant argued that section 17 of the Act restricts appointments of acting chief executive officer to either members of the entity’s board or staff. It was alleged that Dumba was neither board member or staff of 2nd respondent at the time of his appointment. It was therefore argued that

his opposing affidavit in casu therefore amounts to nullity which should be expunged from the record.

2nd Respondent’s counter was two-pronged. Firstly it was that Dumba was properly appointed by the Minister of Health and Child Care and the Public Service Commission. Alternatively it was argued that this Court cannot issue a declaratur as regards Dumba’s status within 2nd respondent such declaratur being the preserve of the High Court in terms of section 14 of the High Court Act. Chapter 7:06.

ANALYSIS

Section 17 of the Act provides that

“(4) The board of every public entry shall ensure that the post of chief executive of the entity is never left vacant for more than six months and that, in the event of a vacancy of more than one month-

The entity’s deputy chief executive officer, if there is one, is appointed to act as chief executive officer; or

If there is no deputy chief executive officer, a member of the entity’s staff or a board member is appointed to act as Chief Executive officer, pending the appointment of a substantive chief executive officer.”

This provision means that the acting chief executive officer position is restricted to board members or staff of public entities like the 2nd respondent. Despite this court order directing the filing of documents showing Dumba’s appointment, 2nd respondent has not availed the same or otherwise clarified the position. In oral argument it sought to rely on section 43 of the Act which authorises the Minister to exempt an entity from any provision of the Act. However the provision states that the exemption should be “by notice in writing to the public entity.” One would have expected 2nd respondent to upload such exemption if same was issued. It did not do so. The Court cannot rely on vague speculation that such exemption was issued.

In the circumstances the Court is satisfied on a balance of probabilities that the 2nd respondent’s opposing affidavit was deposed by an unauthorised person. Whether this finding amounts to a declaratur is besides point in light of the wording of the aforesaid order by the Supreme Court.

Wherefore it is ordered that

The applicant’s 2nd point in limine be and is hereby upheld;

The respondent’s opposing affidavit be and is hereby struck off the record; and

The Registrar of this Court is directed to reset the matter for continuation on the earliest available date.

J-U-D-G-E