Brenda Garudzo N.O. v Florence Sigudu-Matambo and Transmedia Corporation (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/161/2023
HARARE 6 JUNE 2023 14 JUNE 2023
CASE NO LC/H/917/22
BRENDA GARUDZO N.O.
APPLICANT
FLORENCE SIGUDU – MATAMBO
1st RESPONDENT
TRANSMEDIA CORPORATION (PVT) LTD
2nd RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE
HARARE 6 JUNE 2023 14 JUNE 2023

BRENDA GARUDZO N.O.

APPLICANT

FLORENCE SIGUDU – MATAMBO

1st RESPONDENT

TRANSMEDIA CORPORATION (PVT) LTD

2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant No Appearance, Absentia

For 1st Respondent Mr W. Musengwa, Attorney

For 2nd Respondent Mr J. Mutonono, Attorney

MUSARIRI, J:

On the 25th August 2022 at Harare, applicant in her capacity as a Labour Officer issued a ruling. She ordered 2nd respondent (employer) to pay 1st Respondent (employee) a sum of US$507 917 and other items. Apparently the employer did not comply. Applicant then applied to this Court for the confirmation of her ruling in terms of section 93(5a) of the Labour Act Chapter 28:01. The employee supported the application whilst the employer opposed it.

It is common cause that the employee worked for the employer as its Chief Executive Officer (CEO) on renewable fixed term contracts from October 2009. The last contract expired on 28th February 2020. She had served for over 10 (ten) years. On the 29th March 2020 the employer formally terminated the employment contract. Thereafter the employee lodged a claim of unfair/unlawful dismissal against the employer. The claim was dealt with by the applicant up to her ruling.


The main issue was whether the employment contract had been tacitly renewed.

Applicant determined the issue thus:

“Respondent allowed Claimant to continue in his employ on the same terms as before. Respondent argues that Claimant did not act in good faith by continuing to act as Respondent’s CEO beyond the time frame provided in the Act. This Tribunal is of the view that Claimant could not have acted on behalf of the Respondent to terminate her own employment, the contract of employment bound two parties therefore Respondent should have played its part as they were alive to the fact that the contract in question would terminate by effluxion of time on the 28th of February as well as the provisions of the Public Entities and Corporate Governance Act. Respondent might have had an intention to terminate the contract but then it failed to communicate same to the Claimant. I am fortified in this view by the sentiments of the court in the case of Tobacco Processors Zimbabwe (Pvt) Ltd v Tongoona Mutasa and others SC 12/21.

This Tribunal is of the view that as of the 1st March 2020 a new agreement existed between the parties thus the contract had tacitly relocated.”

The employer both in this Court and before applicant argued that the employment contract could not be renewed because the governing statute does not permit it. Its opposing affidavit declared as follows;

“3(1) The 2nd respondent is a public entity whose operations are governed by the Public Entities Corporate Governance Act,

(ii) In terms of section 17 of the Act, no person can be appointed as a Chief Executive Officer of a Public Entity for a period of more than 10 years.

(iii) The 1st Respondent who was the Chief Executive Officer of the 2nd Respondent was the Accounting Officer of the 2nd Respondent. She was the one responsible for the day to day operations of the 2nd Respondent, which functions included making sure that the 2nd Respondent was operating legally and in compliance with the law.

(iv) She therefore know or ought to have known that in terms of the law, she was not in a position to renew her contract.”

The Public Entities Corporate Government Act Chapter 10:31 in its section 17 provides that

“(1) Notwithstanding any other enactment, no person shall be appointed as the Chief Executive Officer of a Public entity-

(a) For a term longer than five years, which term may be renewed for only one further such term

(b) (not applicable)

(c) Unless the appointment is reviewable annually by the entity’s board and terminable If after such review, the board finds that the appointee’s performance has not met the standards laid down in the appointee’s performance contract or in any other instrument regulating his or her employment:

Provided that no chief executive officer shall, even if his or her performance has met such standards, be re-appointed after the tenth annual review, unless the President’s approval of the re-appointment is obtained.”
 The quoted provision is clear that however a CEO is appointed to a public entity, she shall not serve as such for more than 10(ten) years. In this Court the employee’s attorney sought to argue that the proviso means she was entitled to assume the employer had obtained the requisite approval by the President. The argument is misconceived because the proviso only applies to a CEO appointed on a yearly basis under paragraph (c) above. In casu the employee was on a fixed term contract for three (3) years and therefore she does not fall under the paragraph. In any event in her capacity as CEO she was responsible for ensuring compliance with the Act. If Presidential approval was applicable, she should have set the process in motion to obtain the approval. She did not do so.

The applicant erred in over-looking the applicable statute and relying on the Tobacco Processors’ case. The case is distinguishable as it involved a private company and not a public entity. The result of the above analysis and synthesis is that the application cannot be confirmed and must be set aside. However, it appears that there were outstanding benefits due to the employee prior to the 28th February 2020. The employer’s attorney conceded that the matter may be remitted back to applicant to properly assess and quantify those dues.

Wherefore it is ordered that

1. The application for confirmation of ruling be and is hereby dismissed;

2. The ruling issued by applicant on the 25th August 2022 is set aside; and

3. The matter is remitted back to applicant for the proper assessment and quantification of benefits payable by 2nd respondent to 1st respondent on the date of termination i.e. 28th February 2020.

G MUSARIRI
J-U-D-G-E
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