No S.C. 22\2002
Appeal No 36\2001
ZIMBABWE LIMITED v LAZARUS MUYAMBI
COURT OF ZIMBABWE
CJ, SANDURA JA & CHEDA JA
MARCH 21 & MAY 20, 2002
Andersen S.C., for the
de Bourbon S.C., for
JA: This is an appeal against a judgment of the High Court which
granted the respondents application for an order
declaring that he
was an employee of the appellant.
facts are as follows. The respondent was employed by the appellant
as an auditor with effect from 1 January 1985.
He rose through the
ranks and became the appellants Chief Internal Auditor.
with effect from 1 January 1998 the respondent was seconded to
Dairibord Malawi Limited (DML) as that companys
Director. The terms and conditions of the secondment were set out
in a contract of assignment entered into by the appellant
respondent which was due to expire on 31 December 1999.
June 1999 the appellant ordered the respondent to go on paid leave
for an indefinite period pending the completion of
what it called
extensive investigations into the operations of Dairibord Malawi.
The respondent was also ordered to return
to Zimbabwe in order to
facilitate the investigations.
on 3 September 1999 the respondent was summoned to a hearing on 14
September 1999. Although the hearing was convened,
it did not deal
with any substantive issues. Instead, it dealt with preliminary
issues such as the composition of the disciplinary
whether or not the respondent was entitled to legal representation.
Then, on 24
September 1999 the appellants Chief Executive Officer withdrew the
proceedings, which had been instituted against
the respondent in
terms of the appellants code of conduct. Instead, he gave the
respondent three months' notice of the termination
of the contract of
assignment (the notice). What this meant was that the
contract of assignment would end on 31 December
1999, the date when
the contract would have terminated in any event.
shortly after receiving the notice, the respondent, through his
lawyers, sought confirmation from the appellants Chief
Officer that the notice applied to the contract of assignment only,
and that with effect from 1 January 2000 the respondent
to the position of Chief Internal Auditor of the appellant. When
that confirmation was not forthcoming, the respondent
filed a court
application in the High Court on 24 November 1999, seeking the
already referred to.
learned judge in the court a
quo granted the order
sought. Aggrieved by that decision, the appellant appealed to this
issue in this case is whether the notice was intended to terminate
the contract of assignment as well as the respondents
contract of employment with the appellant. I do not think so. I
say so for two reasons.
reason is that the appellants Chief Executive Officer made it
quite clear in his letter to the respondent dated 24
that the notice only affected the contract of assignment. The
letter, in relevant part, reads as follows:-
was overlooked that there exists between yourself and Dairibord
Zimbabwe Limited a written Contract of Assignment in terms of which
you were assigned as Managing Director of Dairiboard Malawi Limited
under certain conditions
In terms of
the contract aforesaid either party is entitled to three calendar
months notice in writing of any intention to terminate
that the employer/employee relationship between yourself and the
company has completely broken down to such an extent that
it is no
longer possible for you to remain in your employment.
terms of the Contract of Assignment I hereby give you the requisite
three months notice to terminate your contract of employment.
The period of notice shall run from the 1st
October and expire on the 31st
I advise that
all proceedings in terms of the Code of Conduct have been revoked and
abandoned as it was obviously a mistake to proceed
with them in the
face of (the) contract of employment
letter was written after the aborted disciplinary proceedings of 14
September 1999. In my view, it is clear beyond doubt
notice affected the contract of assignment only. Any contention
that the termination of the contract of assignment automatically
meant the termination of the 1985 contract of employment cannot be
I say so
because the contract of assignment was for a period of two years
only, after which the respondent was to return to Zimbabwe
continue working for the appellant. In this regard, the clause in
the contract of assignment dealing with the respondents
remuneration states as follows:-
amounts included in this contract have been increased by an
expatriate supplement of 20% which
will not apply when the incumbent returns to work for the company in
emphasis is mine)
clearly, the two contracts were separate. The termination of the
contract of assignment did not affect the 1985 contract
employment. At the end of the contract of assignment the respondent
was to return to Zimbabwe and resume his usual duties.
reason why I say that the notice did not affect the 1985 contract of
employment is that when the respondents lawyers
wrote to the
appellants Chief Executive Officer, on 28 September 1999, seeking
his confirmation that the notice affected the contract
only, there was no response from him. The relevant part of the
letter written by the respondents lawyers reads
was indeed pointed out in our letter dated 15th
September 1999, it is correct that our client was assigned as
Managing Director of Dairiboard Malawi Limited for a fixed period.
The giving of three months notice therefore only applies to the
assignment contract in terms of which you have acted.
As a result,
our client will resume his original position as at 1st
note your reference to the processing of terminal benefits and
believe this refers to those benefits that arose out of
of assignment and this will not in any way affect benefits under our
clients position which he reverts to on 1 January,
2000, as that
position remains secure and intact
fact that the appellants Chief Executive Officer did not respond
to this letter is significant. If his understanding of
was that the notice extended to the 1985 contract of employment he
should have said so.
circumstances, it cannot be doubted that the only employment
terminated by the notice is that which was governed by the contract
of assignment. The respondents main contract of employment with
the appellant remained intact. It was not terminated in terms
the appellants code of conduct, nor was it terminated in terms of
the Labour Relations Act [Chapter 28:01].
being the case, it follows that the respondent remains an employee of
the appellant. This conclusion is confirmed by the
failure to produce any evidence indicating that it had terminated the
contract in question.
If on 1
January 2000 the post of Chief Internal Auditor was still occupied by
some other person, the appellant should have given
the respondent an
equivalent post or paid him the salary of Chief Internal Auditor, in
the event that it had no other work for him.
who appeared for the appellant, submitted that the learned judge in
the court a quo
should have found that the relationship between the parties had
broken down to the extent that it was wholly inappropriate for the
respondent to be reinstated in employment. With respect, I disagree
with that submission for two reasons.
reason is that no issue of reinstatement arises in this case. As
already stated, the appellant did not produce any evidence
that the contract of employment entered into in 1985 was terminated.
reason is that even if reinstatement were in issue, the appellant did
not produce any evidence indicating that the relationship
parties to the 1985 employment contract had broken down to the extent
alleged. On the papers, the only complaint of
a breakdown in the
relationship between the parties was made by the appellants Chief
Executive Officer in his letter to the respondent,
dated 24 September
1999, which I have already set out above. The relevant part reads:-
consider that the employer/employee relationship between yourself and
the company has completely broken down to such an extent that
no longer possible for you to remain in your employment.
already stated, the letter was written for the purpose of terminating
the contract of assignment by giving the respondent three
notice, and the reason given for that termination was that the
relationship between the parties had broken down to the
alleged. The allegation that the relationship had broken down had
nothing to do with the 1985 contract of employment.
event, when the respondents lawyers, in a letter dated 28
September 1999, asked the appellants Chief Executive Officer
state the basis on which he had reached the conclusion that the
relationship had broken down to the extent alleged, they received
response. In my view, the fact that the Chief Executive Officer did
not respond to that query is significant. It might mean
reflection, he could not substantiate the allegation which he had
all that appeared to be in issue was the allegation that on one
occasion, as the appellants Chief Executive Officer
respondent discussed the operations of Dairiboard Malawi Limited, the
respondents attitude towards the Chief Executive
disrespectful. In my view, that incident alone would not justify
the conclusion that the relationship between the appellant
respondent had broken down to the extent alleged.
is true that in Commercial
Careers College (1980) (Pvt) Ltd v Jarvis
1989 (1) ZLR 344 (S) at 349F this Court said:-
is easy to conceive of a situation in which, albeit no blame
whatsoever attaches to the employee, the inescapable inference is
that the personal relationship between him and the employer had
broken down to the extent that trust in one another has been lost.
For a court to order reinstatement against such a backdrop of
animosity and ill-will, solely
because an employee unreasonably and out of wounded pride seeks it,
would be to permit the continuation of an intolerable personal
relationship - one which would make it impossible for the employee
to perform his duties either to his own satisfaction or to that of
his employer. (the emphasis is mine)
above principle was subsequently applied by this Court in Winterton
Holmes & Hill v Paterson
1995 (2) ZLR 68 (S). At 75F the court said:-
dealing with the issue of reinstatement, the learned judge a
quo was alive to the
breakdown in the relationship between the appellants and the
respondent, with no degree of trust or respect remaining
respondent in that case was a professional assistant in the
appellants law firm.
principle was again applied by this Court in Girjac
Services (Pvt) Ltd v Mudzingwa
1999 (1) ZLR 243 (S). The respondent in that case had been caught
stealing his employers property but the charge had subsequently
been withdrawn after plea. At 250A-B this Court said:-
respondent was a fairly senior employee. He was a person in whom
the appellant reposed trust. He held a position which imported
close association with its manager. It cannot be doubted that from
the appellants viewpoint the personal relationship between
the respondent had broken down to the extent that confidence in the
respondents honesty had been lost; there was no prospect
restoring a normal employer-employee relationship. Therefore, to
have ordered the respondents reinstatement - to have thrust
back upon the appellant, a relatively small organisation, against its
will - was to create for it an intolerable situation.
whilst the principle is well established I do not think it applies to
the facts of the present case. I say so because,
apart from the
bald statement made by the appellants Chief Executive Officer that
the relationship between the parties had broken
down to the extent
alleged, the appellant produced no evidence of the alleged breakdown
of the relationship and what caused it.
was no evidence indicating, for example, that the relationship
between the parties had broken down to the extent that trust
in one another had been lost, or that the appellant had lost
confidence in the respondents honesty.
if the respondents reinstatement had been an issue in the court a
quo, the learned judge
would have been entitled to exercise her discretion in favour of the
respondent by ordering his reinstatement.
However, the issue of
reinstatement did not arise because the learned judge found,
correctly in my view, that the 1985 contract
of employment had not
circumstances, the appeal is devoid of merit and is, therefore,
dismissed with costs.
CJ: I agree
appellant's legal practitioners
respondent's legal practitioners