DISTRIBUTABLE (121)

Judgment No SC 101/04

Civil Appeal No 160/02

STANWELL J. CHODOKUFA v THE NATIONAL EMPLOYMENT COUNCIL FOR THE CATERING INDUSTRY

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE JUNE 28, 2004

A.M. Gijima, for the appellant

F. Nyakabawu, for the respondent

CHIDYAUSIKU CJ: This appeal was dismissed at the hearing. Reasons for judgment were to follow. These are they -

The appellant in this case was an employee of the respondent at the relevant time. On 22 September 2000 the appellant was sent on leave with his pay and benefits being paid by the respondent. This was in terms of a letter written to the appellant by the respondent’s secretary general dated 22 September. The letter reads as follows:

“Re: LEAVE OF ABSENCE

I hereby advise that the Finance Committee is currently looking into the activities and performance of the Accounts Department. After consultations with the Chairman, I have decided that the exercise should be carried out in your absence.

As a result, I have decided that your leave of absence should be extended from the 25^th September 2000 until further advice. This will be paid leave and it is hoped that the Finance Committee will finalise the matter as soon as possible.”

On 28 February 2001 the appellant was then suspended without salary and benefits in terms of the then applicable regulations, the Labour Relations (General Conditions of Employment)(Termination of Employment) Regulations, Statutory Instrument 371/1985 (“the Regulations”).

The letter of suspension without salary and benefits pending dismissal was again written by the secretary general of the respondent and was attached to the proceedings in the court a quo as Annexure I. Paragraph 7 of that letter reads as follows:

“7. In view of the foregoing, I hereby suspend you without pay and benefits with effect from the 1^st March 2001. You are required to hand over Council vehicle, office keys and the cell phone to the Office Supervisor and to make arrangements to pay off your housing loan within a period of three months. It is needless to point out that henceforth you will not be allowed to come to NECCI and CIPF offices unless your visits are specifically limited to issues pertaining to your suspension such as collecting your personal items and discussing payment arrangements with the Property Manager.

8. By copy of this letter the Ministry of Labour Manpower & Social Welfare has been notified of your suspension and reasons for the same and is herewith requested to deal with the matter in terms of Section 93 of the Labour Relations Act so that your contract of employment is lawfully terminated.”

The appellant was dissatisfied with his dismissal and applied to the High Court for an order setting aside his suspension. The High Court dismissed the application. The appellant was dissatisfied with the decision of the High Court and now appeals to this Court.

In his notice of appeal to this Court the appellant raised three issues.

Firstly, he contends that the court a quo erred in concluding that the secretary general of the respondent had authority to suspend him.

Secondly, that the court a quo erred by failing to recognise that the appellant had not been on leave but was on suspension with salary and benefits when the respondent purportedly suspended him without salary and benefits.

Thirdly, the court a quo had erred in holding that the appellant had not opposed the respondent’s court application to recover certain of its property that was in the possession of the appellant.

In dismissing the appellant’s application the learned judge in the court a quo reasoned as follows:-

“None of the submissions made by Chodokufa can be sustained.

The secretary general of the NIC says that he was authorized by the NIC to suspend Chodokufa. The Chairman of the NIC and the minutes of the NIC confirm that he was authorized.

Chodokufa’s two remaining submissions are based on a claim he was, in law, suspended when he was sent on paid leave of absence on 22^nd September 2000. That submission is not correct. Chodokufa was not suspended at that time. He was on leave. The two concepts and the consequences that flow from them are entirely separate and different.

Accordingly, the application cannot succeed.”

I entirely agree with the reasoning and conclusion reached by the learned judge in the court a quo. It is quite clear from the letter dated 22 September that the appellant was being sent on extended leave in order to facilitate investigations into the manner in which he was carrying out his duties. That cannot, as it is contended by the appellant, be construed as suspension. The letter is very explicit in that the appellant was being sent on leave in order to facilitate investigations. Once the investigations were complete the respondent decided to terminate the appellant’s employment and sought permission to do so in terms of the Regulations. That was done promptly as is required by the law and there is no substance in the submission that this was not done timeously.

The second point that the appellant raises is one of authority. He argues that the secretary general had no authority to suspend him pending permission to dismiss him. Again, in my view there is no substance in this contention.

The respondent is a legal persona whose functions have to be carried out by an officer of the respondent. Indeed the secretary general is the officer who would carry out that kind of function. It is apparent from the record that it was the secretary general who wrote to the appellant offering him employment. It was the secretary general who sent him on extended leave pending investigation. It was the secretary general who wrote to him advising the appellant that he would not be getting his bonus.

In any event, there is explicit authority given to the secretary general by the Chairman of the respondent to specifically deal with the issue of the appellant’s dismissal. The secretary general acted as an agent of the respondent. The respondent avers that he had its authority to act. It is not open to the appellant to dispute such authority. Even if one were to accept the appellant’s contention that he did not have the authority at the time to write the letter it is abundantly clear from the record that the respondent ratified the actions of the secretary general.

In the result I am satisfied that the appeal has no merit. It is, accordingly, dismissed with costs.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

Pundu & Company, appellant's legal practitioners

Gill Godlonton & Gerrans, respondent's legal practitioners