Court name
Supreme Court of Zimbabwe
Case number
SC 26 of 2005
Civil Appeal 172 of 2002

Zimbabwe Republic Police Board of Trustees v Manyangadze (72/02) (SC 26 of 2005, Civil Appeal 172 of 2002) [2005] ZWSC 26 (20 July 2005);

Law report citations
Media neutral citation
[2005] ZWSC 26


REPORTABLE (23)

















Judgment No
SC 26/05


Civil Appeal No 172/02

















ZIMBABWE
REPUBLIC POLICE BOARD OF TRUSTEES v GABRIEL
MANYANGADZE











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
ZIYAMBI JA & GWAUNZA JA


HARARE JANUARY 17 &
JULY 21, 2005








R.S. Tsivama,
for the appellant





S. Mabuye, for
the respondent












CHIDYAUSIKU CJ: The respondent in this case was employed by
the appellant as a Club Secretary. On or about 21 April 1997
the
Superintendent Amenities ZRP Commandant Depot, Mamera, (hereinafter
referred to as Mamera) applied to the Ministry of Labour
to terminate
the respondent’s contract of employment.






On 23 April Mamera suspended the respondent from employment pending
a determination by the Ministry of Labour, of the application.
The
reasons for the application and subsequent suspension were that when
a spot check was carried out by the appellant’s internal
auditors
the respondent failed to account for an amount of $6 939,98 and yet
he was the only person with access to the safe in which
the money was
kept. The respondent had also unlawfully lent an amount of $3 500
of the appellant’s money to a fellow employee.





A hearing of the
matter was duly conducted before a Labour Relations Officer on 5
September 1997 who, on hearing evidence from the
two auditors,
granted the application for termination of the respondent’s
employment. The respondent noted an appeal to a Senior
Labour
Relations Officer. When the appeal was dismissed he noted another
appeal to the Labour Court which allowed the appeal on
the basis that
the suspension was a nullity as it was done by Mamera and not the
appellant as this implied that the respondent was
a member of the
Zimbabwe Republic Police which he was not.





In coming to this
conclusion the learned President of the Labour Court reasoned as
follows:-









“The Constitution
does not provide for the removal from office of the Secretary.





Superintendent C E
Mamera, on 23 April 1997, acting on behalf of Zimbabwe Republic
Police Office of the Commandant Depot suspended
the appellant who was
the Secretary. In suspending the appellant, Superintendent C E
Mamera did not purport to act on behalf of
The Board of Trustees or
as the Chairman or member of the Club Committee. He acted in his
capacity as Superintendent Amenities.





The same Superintendent
then proceeded to apply for termination of the appellant’s contract
of employment to the Labour Relations
Officer in terms of Statutory
Instrument 371/85. Again he acted as Superintendent Amenities.
Permission to terminate the contract
of employment was granted by the
Labour Relations Officer and by the Senior Labour Relations Officer
after the appellant had noted
an appeal.





Thereafter the
appellant appealed and argued on appeal that the Zimbabwe Republic
Police acting through its Superintendent Amenities
was not his
employer. He was employed by the Police Club and it is the Board of
Trustees who ought to have acted on behalf of the
Club as is provided
for by the Club’s Constitution which provides that all actions on
behalf of the Club are to be instituted and
conducted by the Board.





It was argued on behalf
of the respondent that the Constitution derives its existence from
the Police standing orders and as such,
it is these Police standing
orders which state how the Constitution is supposed to be applied.
The structures of the Zimbabwe Republic
Police have a Superintendent
Amenities he is the one who sits on the Board of Trustees for the
Club. His actions are therefore
valid and bind the appellant.





That argument is
fundamentally flawed in that nowhere in the Club’s Constitution is
the Club made a part of the Zimbabwe Republic
Police for purposes of
administration. It is a separate body. It is governed in terms of
its Constitution. The power to bring
any action or suits on behalf
of the Club are vested in the Club’s Board of Trustees not one
member of the Board acting in his
capacity as an officer of the
Regular Police Force with the approval of the Commissioner of Police.





The Constitution does
not make the Club subject to the Zimbabwe Republic Police Standing
Orders. The action ought to have been taken
by the Board of
Trustees. The suspension by anyone other than the Board was ultra
vires
the Constitution and so was the application for dismissal.
The authority to terminate was therefore based on an illegal action
and is therefore of no force or effect, it is a nullity.”









The appellant was dissatisfied with this determination and appeals
to this Court on grounds set out in the Notice of Appeal which
provide as follows:-






“1. The Labour Relations Tribunal erred at law in finding that the
Superintendent C.E. Mamera (Superintendent Amenities) suspended
the
respondent acting on behalf of the Zimbabwe Republic Police, officer
of the Commandant and not on behalf of the Zimbabwe Republic
Police,
Board of Trustees.





2. The Labour Relations
Tribunal erred in finding that the Club’s Constitution should make
provision for the Club to be part of
the Zimbabwe Republic Police for
administration purposes.





3. The Labour Relations
Tribunal erred at law in finding that the Superintendent Amenities
acted as an officer of the Regular Force
and not on behalf of the
Zimbabwe Republic Police Board of Trustees.





4. The Labour Relations
Tribunal erred at law in finding that the suspension was not done by
the Zimbabwe Republic Police Board of
Trustees.





5. The Labour Relations
Tribunal erred in finding that the authority to terminate was based
on an illegal action and therefore of
no force or effect.





6. The Labour Relations
Tribunal erred at law in not taking into account the fact that the
respondent was guilty of the theft charges
against him.”









The letter seeking permission to dismiss the respondent from
employment reads, in part, as follows:-







“Application for order/determination to terminate the contract
of employment of Mr Gabriel Manyangadze




The above mentioned is employed by the Z.R. Police Consolidated Fund
as Secretary Police Club.”









Thereafter he sets out the grounds for dismissal and concludes by
stating:-






“It is in view of these serious allegations that I am hereby
applying for an order or determination in terms of Section 3(d) of
S.I. 371 of 1985 to terminate the contract of employment.”









The letter is then signed by Mamera, Superintendent Amenities.





The suspension order
served on the respondent provided, in part, as follows:-






“Suspension Order






I, Superintendent D.E. Mamera certify that I have this 23rd
day of April 1997 served a Memorandum of Suspension on Mr Gabriel
Manyangadze in the presence of the Acting Secretary Z.R.Police
Club,
Assistant Inspector Mutasa.






1. You are hereby suspended without pay from performing duties as
Secretary Z.R.Police Club or in any capacity whatsoever with effect
from today the 23rd April 1997.





2. …





3. …





4. This order shall
stand until a determination for or against your dismissal is given by
the labour relations officer.





Officer serving order
………………… (signed)



C.E. Mamera Superintendent Amenities”









It is quite clear from the above documents that Mamera was not
acting on his own behalf. He was acting on behalf of the employer
of the respondent. The respondent’s employer was the principal
and he was the agent. It may well be that he was mistaken as
to who
he thought the respondent’s employer was and may not have had
specific authority from the principal. The respondent’s
employer,
the Board of Trustees subsequently became aware of what Mamera had
done and ratified it. Mamera, in his submission to
the Court,
explained that the papers relating to the dismissal of the respondent
were circulated to the Board of Trustees at the
Police General
Headquarters for them to sanction the suspension or refuse to
sanction it. If the Board of Trustees had disapproved
of Mamera’s
action they would have refused to sanction his action. It is clear
from the record that the Board of Trustees ratified
the action taken
against the respondent. The Board of Trustees ratified the action
taken by Mamera by conduct and directly in the
form of the letter,
Annexure “A”. In that letter the Secretary to the Board of
Trustees sought to suspend the respondent on
identical grounds which
is a clear endorsement of Mamera’s action.





The learned President
of the Labour Court correctly observed that the Constitution of the
Club does not provide a procedure for
the removal from office of the
respondent. If such a procedure were provided in the Constitution
and Mamera had failed to follow
that procedure then his action would
have been a nullity for failure to comply with the procedure laid
down in the Constitution.
Indeed if that were the case I would have
no difficulty in concurring with the court a quo that Mamera’s
actions were a nullity for want of compliance with the Constitution
of the Club.





The issue in this
case is one of agency. What needs to be determined is whether
Mamera was authorised by the respondent’s employer
to apply for
authority to dismiss the respondent. Whether or not he had prior
authority is debatable. What is certainly beyond
question is that
the employer, the Board of Trustees, ratified his conduct. The
principle that ratification of the agent’s action
has retrospective
effect is so trite that it requires no citation of authority.





The learned President
of the Labour Court clearly misdirected herself in holding that
Mamera’s application for dismissal and suspension
of the respondent
was illegal and, therefore, a nullity. Even if the application for
dismissal and suspension did not have the
prior authority of the
respondent’s employer that would not render it illegal. It was
simply voidable at the instance of the
employer. In a case where
the employer subsequently ratifies the application for dismissal and
suspension, as is the case here,
such ratification retrospectively
validates both the application for dismissal and the suspension.
The fact that Mamera was confused
or mistaken as to who was the
correct employer of the respondent does not alter the fact that he
was acting for a principal or purported
principal.






In the result the appeal is allowed, the order of the Labour Court is
set aside and the determination of the Senior Labour Relations
Officer is reinstated.





For the avoidance of
doubt the appellant’s dismissal of the respondent is confirmed.











ZIYAMBI JA: I
agree.








GWAUNZA JA: I
agree.









Sawyer & Mkushi,
appellant's legal practitioners


Mabuye &
Company
, respondent's legal practitioners