Emily Motsi & Mervis Chikowore v The University of Zimbabwe

### Preamble
Judgment No. SC 27/25
1
Civil Appeal No. SC 170/24
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REPORTABLE	(27)

EMILY     MOTSI     (2)     MERVIS     CHIKOWORE

v

THE     UNIVERSITY     OF     ZIMBABWE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, BHUNU JA & CHATUKUTA JA

HARARE: 2 JULY 2024 & 13 MARCH 2025

R. G. Zhuwarara, for the appellants

N. M. Phiri with Ms B. Mahuni, for the respondent

BHUNU JA:

The appellants bring an appeal against the judgment of the Labour Court (the court                    a quo) which upheld the decision of the Appeals Committee that had in turn upheld the decision of the Disciplinary Committee to dismiss the appellants from employment.

BRIEF SUMMARY OF THE CASE

The appellants were employed by the respondent primarily as full time lecturers in the Department of Art, Design and Technology Education at the University of Zimbabwe (the respondent).  The primary contract was however permissive of other subsidiary contracts at the discretion of the employer.  Their woes arise from one such subsidiary contract with MOCHIK Garments Private Business Corporation (MOCHIK).  The appellants were signatories to the contract between the respondent and MOCHIK.  They however, did not disclose to the respondent their interest in MOCHIK.  That much is not in dispute. What is in dispute is mainly the effect of the non-disclosure on the primary contract.  In other words, whether misconduct pertaining to the subsidiary contract could adversely affect the contractual relationship between the parties in the primary contract.

Sometime in January 2020 the respondent decided to have academic regalia and personal protective equipment manufactured at its premises under the purview and supervision of the appellants.  The parties concluded subsidiary contracts and were paid for the extra supervisory duties performed outside their primary teaching contracts.

The respondent then concluded a contract of service with MOCHIK a company hired to carry out the respondent’s garment manufacturing project.  Following a collective job action at the company, Professor Jiri, the project coordinator carried out inquiries and testified that he unearthed that the appellants were the directors of MOCHIK who had in fact signed the contract with MOCHIK without disclosing their conflict of interest.  The employees of the company comprised mainly of the appellants’ relatives and children.

On 8 March 2021, the appellants were subjected to disciplinary action pertaining to their close relationship with MOCHIK.  The charge was grounded on their failure to declare their conflict of interest arising from their intimate relationship with the company.  The appellants were then suspended from work in terms of s 4.4.2 of the registered code of conduct with effect from the date they were charged with misconduct. That is to say 8 March 2021.

The respondent’s code of conduct proscribes and penalizes the alleged type of conduct. The appellants were accordingly charged with contravening s 16.2 of the respondent’s registered code of conduct. It being alleged that their forbidden conduct was inconsistent with the fulfilment of the express and implied conditions of their respective contracts of employment.

The Disciplinary committee found that the appellants were guilty as charged and ordered their dismissal from employment with effect from the date of suspension that is to say 8 March 2021.  Aggrieved, they appealed to the Appeals Committee without success, prompting them to appeal to the court a quo in turn.

THE CHARGE AND THE RESPONDENT’S CASE

The appellants were charged with failure to declare their conflict of interest when they signed the subsidiary contract in respect of the respondent’s garment and personal protective equipment manufacturing project.  They were therefore alleged to have breached their duty to act in good faith towards the respondent.

The respondent alleged that the appellants were its full time employees and yet they actively supervised and controlled the day to day operations and activities of MOCHIK, an entity supposed to have its own directors.  The respondent averred that this created a clear conflict of interest.  It further asserted that the appellants actively participated in the registration of the company and even used their own resources to facilitate its registration.

THE APPELLANTS’ DEFENCE

The appellants’ main defence was that the primary lectureship contract was separate and distinct from the subsidiary contract for the supervision of the regalia and personal protective equipment manufacturing project.  Each contract had its own separate terms and conditions.  It was their contention that the main and subsidiary contracts were treated and paid for separately.  They further contended that the primary teaching contract contained no term or condition that was breached by the appellants in their dealings under the subsidiary contract.  That being the case, the primary contract could not be terminated on the basis of misconduct pertaining to the subsidiary contract which was a standalone contract.

THE COURT A QUO’S DETERMINATION

Having considered the submissions made by the parties and the evidence before him, the learned judge a quo observed that the appellants did not give any evidence.  They sought to rely solely on the evidence of Mrs Mavhundutse which was inadequate to advance their defence.  This meant that the bulk of the evidence adduced against the appellants remained unchallenged and unrebutted.  On the basis of such observation, the learned judge a quo  made the following pertinent findings of fact:

The appellants were contracted to perform other duties apart from those listed in the main contract of employment.

The appellants agreed to perform these extra duties.

The appellants knew and recognized that these extra duties emanated from the respondent.

The appellants did not dispute but admitted that they were informed in writing about these duties and they agreed to perform them.

The appellants knew that the financing of MOCHIK came from the respondent.

The appellants were to be paid extra money for the duties they performed on behalf of the respondent in its dealings with MOCHIK.

The appellants’ relatives were employed by MOCHIK and they received remuneration.

The money for salaries would be withdrawn and handed over to the appellants for distribution to MOCHIK’s employees.

The appellants were on the payroll of MOCHI and they received remuneration from MOCHIK.

The appellants were paid by the respondent for supervising the work at MOCHIK and the respondent would also pay them for the same job. They did not disclose the double payment to the respondent.

Appellants were double dipping being paid twice for the same job.

The above findings of fact are binding and unassailable.  This is because s 92F of the Labour Act [Chapter 28:01] prescribes that appeals from the Labour Court to the Supreme Court can only be made on a point of law.  In any case, it is settled law that an appellate court does not lightly interfere with factual findings of a lower court or tribunal,  In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670 the Court observed that:

“The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion”

In the absence of anything vitiating the factual findings of the Labour Court, this Court is duty bound to treat them as given by it.

Commenting on the logic of the appellants’ submission in their defence, relative to the facts found proved, the learned judge a quo had this to say at p 7 of his judgment:

“This reasoning is difficult to follow, not because of my lack of intellect, but because it does not seem to make sense, Appellants admit that the secondary contracts were entered and agreed to with the respondent.  Respondent is the one who had granted the appellants employment in the first place.  Respondent had also provided in the main contract that appellants could be assigned extra duties during the currency of the ‘main’ contract.  Appellants are therefore in fact stating that they could do as they pleased in respect of the secondary contracts, to the detriment of the respondent and no corrective action should be taken against them.  This clearly goes against the employer/employee relationship that is acknowledged in labour law.”

On the basis of such observation, the learned judge a quo held that it was against the employer/employee relationship for the appellants to argue as they did that they could do as they pleased in respect of the ‘secondary’ contracts to the detriment of the respondent. He   further held that the conduct by the appellants proved that they were not advancing the interests of the respondent.  Thus their argument that they could not be charged with any misconduct resulting from the ‘secondary’ contracts was misplaced.  In the result, he found no merit in the appellants’ appeal and dismissed it with costs.

APPEAL TO THIS COURT

Aggrieved by the court a quo’s judgment, the appellants appealed to this Court for relief on the following six grounds of appeal:

“1.	 Having distinguished “main contract” from “sub-contracts”, the court a quo erred in law by confirming dismissal of appellants from their “main contract” for alleged breach of “sub contract” against which, no charge was levied.

2. 	The court a quo grossly misdirected itself in fact in finding that breach of “nemo judex in sua causa” principle was not meaningfully motivated contrary to evidence on record, resulting in erroneous dismissal of the appeal.

3. 	The court a quo grossly misdirected itself in fact that ground 4 was withdrawn, which attacked appellants’ dismissal on account of s 16.24 of the code against which they were never charged witbut were convicted and dismissed.

4. 	The court a quo erred in law by upholding appellants’ retrospective dismissal from the date of suspension and not conviction, although this was specifically outlawed by the notice of suspension itself.

5. 	The court a quo grossly misdirected itself in fact that the appellants’ signed a contract on behalf of Mochik when the contract reflects that they signed on behalf of the respondent, resulting in an erroneous dismissal for alleged conflict of interest.

6. 	The court a quo erred at law by upholding appellants’ dismissal for alleged conflict of interest in that they were on Mochik’s pay roll when this does not form part of the charges nor was it proven on record.

THE RELIEF SOUGHT

Arising from the above six grounds of appeal, the appellants sought the following relief from the Court:

That the appeal is allowed with costs.

That the decision of the court  a quo is set aside and substituted with the following:

The appeal succeeds with costs on attorney client scale.

The decision of the internal Appeals Committee be and is hereby set aside and is substituted with the following:-

The appellants be and are hereby not found guilty and are discharged.

The appellants be and are hereby reinstated from the date of suspension as full-time lecturers without loss of salaries and benefits.

The appellants not having been charged with breach of any of the “sub-contracts” be and are hereby reinstated without loss of salaries and benefits in respect of both the academia regalia projects and the PPE production.

In the event that reinstatement is no longer possible the respondent be and is hereby ordered to pay damages in lieu of reinstatement.

The respondent be and is hereby ordered to pay appellants’ costs of suite (sic) incurred before the disciplinary committee and the appeals committee on a higher scale.

ALTERNATIVE RELIEF

WHEREFORE the appellants seek the following relief in the alternative and in respect of ground three:-

That the appeal is allowed with costs.

That the decision of the court a quo is set aside.

The matter is remitted back to the court a quo and before a different judge for the determination of all issues and thereafter the issue of costs.

ISSUES FOR DETERMINATION

The six grounds of appeal raise the following issues for determination:

Whether the appellants could be dismissed from their primary lectureship contract for breach of the subsidiary contract of academic garment and protective equipment manufacturing?

Whether or not the breach of the “nemo judex in suo causa” principle alleged by the appellants was motivated before the court a quo?

Whether the appellants withdrew ground number 4 before the court a quo?

Whether the court a quo erred in confirming the dismissal of the appellants from the date of suspension instead of the date of conviction?

Whether or not the appellants signed a contract on behalf of MOCHIK Garments?

Whether the court a quo erred in upholding the appellants’ dismissal on the grounds of conflict of interest?

Whether the appellants’ could be dismissed from their primary lectureship contract for breach of the subsidiary contract of academic garment and equipment manufacturing?

The essence of the appellants’ defence is that since they were not charged with breach of the lectureship contract, it was wrong to terminate that contract on the basis of a breach pertaining to the subsidiary contract that was separate and distinct from the primary contract.  The law on the treatment of two or more contracts between the same parties  in this respect was articulated in Van Der Post Twyfelhoek Prospecting Syndicate (1903) 20 SC 213 where the Court Said:

“Where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document and where there is doubt as to the meaning, they should be read together to determine the intention of the parties and the same principles of interpretation should be applied in the case of any other contract.”

In this case, the appellants were employed by the respondents as full time lecturers in its Department of Art, Design and Technology Education.  The respondent set up a project to manufacture academic regalia and protective equipment.  It then offered the appellants a part time job to supervise the project.  They were undoubtedly chosen on the basis of their knowledge and skill as lecturers in the department.  There was therefore a close link between their primary and subsidiary contracts with the respondent.  The respondent deliberately offered them a part time job because it knew that they could not have two full time employment at the same time.  This is because the appellants had to balance their full time job with their part time job.

The two contracts were in essence closely linked.  One could not be separated from the other.  Although on the face of it, the respondent and MOCHIK seemed to be separate entities, financially they had the same source.  This is because the respondent provided the funds for the payment of salaries and allowances for both entities.  It was a specific term of the subsidiary contact, that the appellants could only work part time at MOCHIK drawing allowances and not salaries.  This was because they had a full time job as lecturers with the respondent from which they drew full salaries.

The common purpose was to use the appellants’ teaching knowledge and skills in implementing the practical side of the academic enterprise.  That being the case, both contracts fell under the banner of contracts that qualify to be treated as one single document.  The learned judge a quo and the tribunals before him were therefore, correct in treating both contracts as a single contractual transaction because they were conjoined by a single purpose.  Ground one of appeal is therefore unsustainable and is accordingly dismissed.

Whether or not the breach of the “nemo judex in sua causa” principle alleged by the appellants was motivated before the court a quo.

The appellants’ complaint is that at the disciplinary hearing, the respondent’s legal advisor had acted as both the legal advisor and the respondent.  They asserted that respondent’s legal advisor opposed two applications which were dismissed at her instance.  Having assumed the position of the respondent it was incompetent for her to advise the respondent on anything in breach of the nemo judex in suo causa principle. The principle is loosely translated to mean, “no one shall be allowed to be a judge in their own case.”

The respondent counters that its legal adviser was not part of the composition of the disciplinary hearing committee.  On that score, it denies breaching the nemo judex in suo causa principle.  It further contended that the appellants did not raise any objection in relation to the presence of the legal advisor during the proceedings.

In its judgment, the court a quo held that the appellants were constrained to show the court on the record where it was recorded that the legal advisor had acted for both the complainant and the disciplinary committee.  It then dismissed the complaint on the basis that there had been a failure to motivate the ground of appeal in any meaningful way.

Whether or not there was a breach of the nemo judex in suo causa principle is a question of fact.  The onus was on the appellants to prove on a balance of probabilities how the principle was violated.  The appellants were unable to discharge that onus.  The court                 a quo cannot therefore be faulted for holding that the appellants had failed to discharge the onus that there had been a breach of that principle of natural justice.

As we have already seen, this being a ruling on a point of fact, the appellants without proof of irrationality or some other valid complaint have no recourse.

Whether the appellants withdrew ground number 4 before the court a quo?

Whether or not ground of appeal number 4 was withdrawn before the court a quo is a matter of fact.  The court a quo made a factual finding that it was withdrawn.  Having regard to s 92F of the Labour Act, that factual finding is unapeallable in the absence of gross irrationality.  The appellants apart from their mere say so have not been able to proffer any evidence tending to show gross irrationality on the part of the court a quo in arriving at that factual finding. That being the case, ground of appeal number 3 is unsustainable.

Whether the court a quo erred in confirming the dismissal of the appellants from the date of suspension instead of the date of conviction?

The appellants in their fourth ground of appeal attack the judgment of the court a quo on the basis that it ought not to have confirmed the dismissal of the appellants from the date of suspension but conviction.  Their argument is that this is contrary to the letter of suspension which stipulated that the date of dismissal would be the date the respondent informs them of the decision to dismiss them from employment.  The relevant part of the  letter of suspension reads:

“… we find it necessary to suspend you from duty without salary and benefits from Monday 8 March 2021 whilst your office is being investigated.  If however, it is subsequently decided to dismiss you, this will be effective from the date we inform you of this decision.  If however it is decided not to dismiss you and/or alternative action is taken against you, this will be communicated to you like wise and you will be reinstated from the date of suspension.” (The emphasis in bold typing is mine)

It is plain that the letter of suspension makes it clear that in the event of dismissal the date of dismissal will be the date of communication of the decision to the appellants.  The letter at p 48 of the record of proceedings shows that Mrs Mervis R Chikowore was served with her letter of suspension on 14 September 2021.   Her colleague Dr Emily Motsi was served a day later on 15 September 2021.  Having communicated that position to the appellants, the respondent was bound by that stipulation.  It was therefore, not within its discretion to alter the dates of dismissal retrospectively to the detriment of the appellants.

Contrary to its undertaking to peg the date of dismissal as the date of communication of the decision to dismiss, the respondent went on a frolic of its own and decided to dismiss the appellants from the date of suspension.  The dismissal letter in this respect reads “Your dismissal is with effect from the date of suspension, which is 8 March 2021.”

In CIMAS Medical Aid Society v Nyandoro SC 6/16 this Court held that a suspended employee retains their employee status until the employee is dismissed.  Thus the Court had this to say:

“An employee who is suspended is not dismissed from employment ipso facto. Suspension and dismissal are different though related concepts.  The respondent adverted to being reinstated to his job in his submissions before the arbitrator.  A suspended employee does not lose his employee status.”

What this means is that the appellants remained the respondent’s employees up to the date the respondent communicated to them the decision to dismiss them from its employment.  That being the case, we find that there is merit in ground of appeal number 4.  The ground of appeal is sustained.

Whether or not the appellants signed a contract on behalf of MOCHIK Garments?

It is common cause that the appellants signed on behalf of the respondent as is reflected at p 155 of the record of proceedings.  The court a quo therefore misdirected itself and fell into error when it held that the appellants had signed the contract of service on behalf of MOCHIK.  We accordingly uphold ground of appeal number 5.  The court a quo’s ruling in this respect was grossly irrational in light of the common cause position of the parties with regard to the record of proceedings.

The upholding of ground of appeal number 5 however amounts to empty victory as this is not the only basis upon which the court a quo found that there was a conflict of interest. The major finding on conflict of interest was that the appellants had failed to disclose that they were directors or founders of MOCHIK and that they were on the payroll of MOCHIK where they employed their relatives and children.  For that reason the error on signatures does not change anything on the cardinal finding that the appellants failed to disclose their conflict of interest regarding their relationship with MOCHIK.

Whether the court a quo erred in upholding the appellants’ dismissal on the grounds of conflict of interest?

In ground of appeal number 6, the appellants contend that the court a quo erred by upholding their dismissal for alleged conflict of interest in that they were on MOCHIK Garments’ pay roll when this does not form part of the charges nor was it proven on record.

On the other hand the respondent was adamant that the appellants were duly charged in terms of the code of conduct and it was proven that they acted outside the scope of their lectureship and its subsidiary contract.  It was its contention that the appellants were responsible for the formation of MOCHIK and they were actively controlling its operations.  They therefore had a duty to disclose their interest to the respondent.

The charge levelled against the appellants is very wide.  It relates to any act or omission inconsistent with the fulfilment of the express or implied conditions of their contracts of employment.  That charge encompasses all the allegations levelled against the appellants including non-disclosure of conflict of interest.

The finding on the non-disclosure of conflict of interest was not solely based on the appellants being on the pay roll of MOCHIK.  As we have already seen it was multifaceted.

The finding that the appellants were guilty of non-disclosure of their conflict of interest is a finding of fact.  Once we have found that this misdemeanour is covered under the broad charge that is the end of the matter.  The appellants are proscribed from challenging the factual findings of the court a quo save in exceptional circumstances which are not present in this ground of appeal.  We accordingly find that there is no merit in this ground of appeal.

DISPOSAL

The charge under which the appellants were prosecuted is a very broad one.  It is a catch all charge meant to penalise nearly every misdemeanour, act or omission that offends against a contract of employment.  The appellants could have saved their breath, time and money in attempting to challenge the breadth and scope of the charge which is so broad as to cover almost any infraction against their contract of employment.

What compounded the appellants’ problems is that the offence of failure to disclose conflict of interest is also couched in very broad terms requiring utmost good faith by the employees towards their employer.  Malaba DCJ as he then was in Mining and Smelting Company v Zakeyo 2007 (1) ZLR 132 (S) was at pains to define and explain the parameters and requirements of the misdemeanour of conflict of interest at the workplace when he said at 139A an 139G – 140C:

“It seems to me it does not matter very much in cases of misconduct at workplaces what label one puts to the facts as long as they establish the conduct which the parties intended to regulate… The duty to disclose does not depend upon proof of the existence of actual conflict of duty and self-interest only.  It is sufficient for the purposes of enforcement of the rule that there be a potential conflict of duty and self-interest arising from the engagement entered into or about to be entered into by the employee.

In Phipps v Boardman [1967] AC at p 111 LORD HODSON said:

‘…even if the possibility of conflict is present between personal interest and the fiduciary position, the rule of equity must be applied.’

It follows that the application of the rule is not confined to situations where actual or potential conflict of interests is by reason of and during the actual execution or discharge of duty by the employee.  The rule has its roots in the general standards of loyalty, good faith and avoidance of a conflict of duty and self-interest.  As such it has been strictly applied by the courts.  Once it is established that, without disclosure, an employee entered into an engagement with a party doing business with the employer where he has a personal interest which is likely to conflict with the interests of his employer no consideration is to be had of other matters raised as part of the defence to the charge of misconduct.’”

What emerges quite clearly from the above articulation of the elements of conflict of interest is that, it is the employee who takes the initiative with or without being prompted by the employer to disclose any facts they know or suspect to be in conflict with the employer’s business interests.  Failure to do so attracts disciplinary action as happened in this case.  This is consistent with the duty of care, good faith and avoidance of conflict at the work place owing to self-interest.

In this case, it was within the appellants’ knowledge that they had special intimate relationship with MOCHIK as found by the Disciplinary committee and upheld on appeal.  The appellants were therefore duty bound to disclose that relationship to the respondent.  Failure to do so was a grave omission leading to disciplinary action and dismissal.  In the result the court a quo’s judgment cannot be faulted at all save for the effective date of dismissal which needs to be adjusted to the date when the order of dismissal was communicated to the appellants.

By and large, the appeal was grounded on points of fact in circumstances where it is now trite that save in exceptional circumstances no appeal lies from the Labour Court to the Supreme Court on points of fact.  Legal practitioners must take heed and not to waste the Court’s time, and litigants’ money on high sounding appeals on points of fact which they know are bound to fail.

Where legal practitioners wish to appeal to the Supreme Court against a factual finding by the Labour Court, they must first have recourse to s 92F of the Labour Act and ensure compliance with that section.  It is the onerous duty of legal practitioners concerned where possible to convert a point of fact into a point of law.  If that cannot be done, legal practitioners should take heed not to waste everyone’s time and money.

As all the parties have been substantially successful, we consider it prudent not to make any order of costs as each party was justified in approaching the court.

In the final analysis we find that the appeal partially succeeds in grounds 4 and 5.  It is accordingly ordered that:

The appeal partially succeeds with no order as to costs.

The appeal in grounds 4 and 5 succeeds.

The appeal in grounds 1, 2, 3, 5 and 6 be and is hereby dismissed.

The judgment of the Labour Court is set aside with no order as to costs and substituted  with the following:

“(a)	The appeal against the judgment of the Appeals Committee partially succeeds with no order as to costs.

The judgment of the Disciplinary Committee is set aside and substituted with the following:

The appellants be and are hereby dismissed from the University of Zimbabwe’s employment with effect from:

Betty Chikowore 14 September 2021.

Dr Emily Motsi 15 September 2021.

There is no order as to costs.”

GWAUNZA DCJ	:	I agree

CHATUKUTA JA	:	I agree

Stansilous & Associates, appellants’ legal practitioners

Muvingi & Mugadza, respondent’s legal practitioners