Manyenga v PetroZim (Private) Limited (40 of 2023) [2023] ZWSC 27 (18 May 2023)

Key Facts

Issues

• The appeal challenged the court a quo's refusal to interfere with the Disciplinary Authority's findings, arguing they were irrational and based on incorrect legal principles. The Supreme Court agreed, noting the disciplinary authority's conclusions lacked evidentiary support given the admission of no Board meetings and the organizational structure that deprived the appellant of subordinate reporting.
• The court analyzed if directing operational updates to the Board Chairman, rather than the full Board, satisfied the appellant's contractual duties. It concluded that the Chairman alone does not constitute the Board, and the charge sheet explicitly required reporting to the Board, not just the Chairman. The respondent's admission that only the General Manager could communicate with the Board further solidified this issue.
• The central issue was whether the appellant could be excused for his omissions under the principle of objective impossibility, given that no properly convened Board meetings occurred during his tenure as Acting General Manager and the Board had directed all communications to be routed exclusively through the General Manager. The court also examined if the disciplinary authority's findings were irrational, as the respondent admitted key facts undermining the charges.
• The court evaluated if the company's organogram and the removal of subordinates from reporting to the appellant rendered his contractual duties objectively unperformable. It acknowledged the respondent's admission that the appellant had no subordinates during his tenure and that operational challenges could only be known through direct subordinate reports, which were unavailable to him.

Holdings

• The Supreme Court held that the court a quo misdirected itself by failing to recognize the principle of objective impossibility in the appellant's case. The court found that the absence of properly convened Board meetings during the periods in question made it objectively impossible for the appellant to report operational challenges to the Board, as required by his contract. The court a quo erred in equating communication with the Board Chairman to compliance with the duty to inform the Board itself.
• The court held that the court a quo's decision to uphold the disciplinary authority's findings was unsupported by evidence. Key common cause facts, such as the Board's directive that only the General Manager could communicate with the Board and the absence of subordinates reporting to the appellant, were ignored by the lower court.
• The Supreme Court ordered the appeal to be allowed with costs, set aside the court a quo's judgment, and substituted it with a decision reinstating the appellant to his position or awarding damages in lieu if reinstatement was not feasible.
• The court determined that the court a quo incorrectly framed the appeal as challenging the exercise of discretion rather than factual findings. The Supreme Court emphasized that the appellate court can interfere with factual findings if they are irrational or based on mistaken principles, which was the case here.

Remedies

• The appellant is reinstated without loss of salary and benefits from the date of suspension, being the 20th of September 2019. In the event that reinstatement is no longer tenable, the respondent shall pay the appellant damages in lieu of reinstatement to be agreed between the parties.
• The appeal is allowed with costs.

Legal Principles

Precedent Name

• Dube v Premier Service Medical Aid Society & Anor
• Kettex Holdings P/L v S Kencor Management Services P/L
• Potato Seed Production (Proprietary) Ltd v Princewood Enterprises (Pvt) Ltd & Ors
• Crown and Anor v Energy Resources Africa Consortium (Private) Limited & Anor
• Barros & Anor v Chimphonda
• Mutangadura v TS Timber Building Supplies
• Proton Bakery (Pvt) Ltd v Takaendesa
• Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe
• Firstel Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd
• Mashoko v Mashoko & Ors

Cited Statute

• Labour (National Employment Code of Conduct) Regulations, 2006
• Civil Evidence Act [Chapter 8:01]

Judge Name

• Makoni JA
• Mavangira JA
• Chitakunye JA

Passage Text

• It was common cause that there was an extant instruction from the board of directors directing that all communication to the Board in relation to the affairs of the respondent was to be through the General Manager only of which the appellant was not.
• The judgment must be vacated.
• The court a quo misdirected itself in its finding that theappellant should have reported to the Board Chairman as he is the face of the Board. Such a finding has no foundation at law.