Court name
Supreme Court of Zimbabwe
Case number
SC 56 of 2006
Civil Appeal 78 of 2005

Mudarikwa and Another v Director of Housing and Community Services NO and Another (78/05) (SC 56 of 2006, Civil Appeal 78 of 2005) [2007] ZWSC 56 (22 January 2007);

Law report citations
Media neutral citation
[2007] ZWSC 56







REPORTABLE
ZLR (53)


Judgment
No. SC.56/06


Civil
Appeal No. 78/05








(1)
COLLETA MUDARIKWA (2) LUKE MWAZIYA





v





(1)
THE DIRECTOR OF HOUSING AND COMMUNITY
SERVICES N.O (2) THE CITY OF HARARE








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & MALABA JA


HARARE,
SEPTEMBER 11, 2006 & JANUARY 23, 2007











O
Gutu
, for the
appellants





C
Phiri
, for the
respondents








MALABA
JA: This is an appeal from a judgment of the High Court delivered on
16 March 2006, dismissing an application by the appellants
for an
interdict prohibiting the respondents from appointing any person
other than the appellants to the posts of District Officer
for Warren
Park and Glen Norah respectively and for an order directing them to
appoint the appellants to the posts with effect from
1 May 2003.





The
appellants were employed by the second respondent, a local authority,
as acting District Officers (Grade 6) for Warren Park
and Glen Norah.
The first appellant had been Acting District Officer for Warren Park
as from 11 January 2000 whilst the second appellant
was the Acting
District Officer for Glen Norah as from 1 May 2000. The first
respondent was the head of the department in which
the appellants
were employed.





On
10 October 2001 it was decided at a Departmental Works Council
meeting that employees who had been serving in acting positions
be
identified with a view to having them recommended for promotion to
the posts in which they were acting. On 12 November the first
respondent made a recommendation to the Executive Committee of the
second respondent that the appellants, together with one Sam Tawanaye
Sapahla who has not appealed the decision of the court
a
quo
, be considered for
promotion to the posts in which they were acting. The recommendation
was signed by the Town Clerk and the Human
Resources Director. The
factor that had been taken into account in making the recommendation
was disclosed
ex facie
the document as the good performance of the appellants during the
time they had been acting in the posts.





The
Executive Committee was due to consider the recommendations on 12
November 2001. Before it could do so, the first respondent
realised
that in making the recommendation he and the other officials had
omitted to take into account the educational qualifications
the
appellants were required to have to be promoted into the posts in
which they were acting. A person promoted or appointed to
the post
of District Officer (Grade 6) had to be in possession of a good
degree in Social Sciences, Administrative Accounting or
CIS. Any
other post graduate qualification was considered an added advantage.





On
12 November the first respondent, with the consent of the Executive
Committee, withdrew the recommendation he had made for the
promotion
of the appellants as there was no evidence that they possessed the
requisite educational qualifications. The posts were
then advertised
in the local print media and a notice inviting applications for the
vacancies was circulated internally. The appellants
responded by
submitting their applications. Some of the applicants were called
for interviews on 17 April 2003. The appellants
were not invited to
the interview.





On
2 May 2003 the appellants made the applications to the High Court for
the interdict and the order for promotion on the ground
that they had
the experience entitling them to promotion to the posts in which they
were acting. They alleged that the insistence
by the first
respondent on the educational qualifications was a ploy to ensure
that they were not promoted. Whilst not stating categorically
that
they possessed the specific educational qualifications required for
the post of District Officer, the appellants said that they
were
nonetheless sufficiently qualified to hold the posts because they
would not have been employed in the acting capacity for so
long if
were they not qualified for the post. They said they were entitled
to be promoted into the posts in which they were acting
because other
employees in similar positions had been promoted. They contended
that they had a legitimate expectation of being promoted
arising from
the manner the respondents had treated the other employees. It was
their plea that should the respondents not be interdicted
from
appointing any other persons other than themselves and ordered to
promote them to the posts in which they were acting they would
suffer
prejudice in the form of loss of the job as Acting District Officers.





The
respondents contended that the determination of the question whether
the appellants should be promoted or not did not turn solely
on their
competence in the performance of the duties of the office in which
they were acting. Those were attributes expected of
every employee.
The appellants were required to show that they were possessed of the
requisite educational qualifications for the
post. They had failed
to do so.





In
dismissing the application the learned Judged said:





“It
may well be true that there are those of applicants’ counterparts
who were             appointed
to substantive grades of District Officer when they did not
hold the             requisite
degree qualifications. The explanation by the Town Clerk is that the
            new requirement
for these posts is that the incumbent holds a degree in Social
            Sciences.
It follows from that that those of the applicants’
counterparts             may have benefited
from an old policy. That is not to say the employer is
            bound
to apply that old requirement to the applicants … At
the time             of appointment
to the acting position, the applicants did not hold
the requisite             qualifications
and therefore could not have reasonably expected to be
            promoted
into these posts.”











The
grounds of appeal were set out as being that:





“1.  The
learned Judge in the court
a
quo 
misdirected
himself by holding                    that
the appellants should not have benefited from the old
policy of                    promotion
notwithstanding the fact that the majority of their
                   counterparts, who
were not holders of university degrees in social
                   sciences
had been duly promoted to the position of District Officers.
                   The
learned Judge ought to have considered that it was only
                   fair
and reasonable for the appellants to be promoted to the post of
                   District
Officers in the same way and manner in which the majority
                   of their counterparts,
in almost exactly the same circumstances as
                   the
appellants, had been promoted.


    


2.
 The learned Judge in the court
a
quo
erred by holding
that there was no                    legitimate expectation
on the part of the appellants to expect to be
                  promoted
to the position of District Officers when all the facts in
the case                   clearly
confirmed that the recommendation of both the First respondent
                  and the
Town Clerk were to be the effect that the appellants
                  were disciplined and hardworking
employees who should have been duly
                  promoted
to the position of District Officers, especially
taking into account                   the
fact that more than 80% of all District Officers
within the City of                   Harare were
not holders of University degrees in social sciences nor in
any                   other
discipline for that matter.”







The
appellants failed to show that they had a right to the promotion they
claimed from the respondent and sought to protect by an
interdict.
The order of appointment could not issue against the first respondent
at all because he had no power to appoint anyone
to the post of
District Officer. The power to promote employees in the appellants’
position lay with the Executive Committee of
the second respondent.





The
appellants did not have a right to be promoted. The promotion was
not automatic and did not depend entirely on the duration
and
competence in the performance of the duties of the office in which
the appellants had been acting. In the grounds of appeal
the
appellants accept the fact that they did not have the specific
educational qualifications which the first respondent was required
to
consider when deciding whether or not to recommend their promotion to
the Executive Committee. As a result of the inadequacy
of their
qualifications, the appellants were not called for interviews, and no
recommendation was made for their promotion. The
appellants were not
placed in a situation which would have compelled the Executive
Committee to consider their promotion to the substantive
post. The
pre-condition for the decision by the Executive Committee whether or
not to exercise the power to promote them was not
fulfilled.





Even
if a recommendation had been made that the appellants be promoted,
the Executive Committee would not have been bound by it.
It would
have been free to reject the recommendation. The Executive Committee
was not under a binding obligation to promote the
appellants in the
exercise of its duty. Where, as was the case here, the promotion of
an employee is not automatic but is on the
basis of educational
qualifications-cum-merit so that the employer is free to promote or
not to promote, an order to promote cannot
be made. The reason is
that the promotion is discretionary.





It
is elementary that no-one can be directed by an order of a court to
do something which he or she is not under a binding obligation
to do.
An order of appointment against the second respondent in the
circumstances would have directed the Executive Committee to
exercise
its discretion in a particular manner, namely, to promote the
appellants to the post of District Officer. The court would
in the
circumstances be promoting the employees as its order would be the
source of the binding obligation not imposed on the employer
by law.





It
was contended on behalf of the appellants that they had a legitimate
expectation to be promoted. The expectation is said to
have arisen
from two events, namely, the recommendation made by the first
respondent on 12 November 2001 and the promotion of other
employees
in similar positions as the appellants. Both arguments are based on
a misconception of the requirements for the applicability
of the
principle of legitimate expectation. In the first place, there was
nothing which the repository of the power to promote did
which could
constitute an assurance to the appellants that they would be promoted
upon recommendation by the first respondent. The
second respondent
through the Executive Committee reserved its right to reject the
recommendation that the appellants be promoted.





It
is clear in any case that the recommendation had been made without
the question of whether or not the appellants possessed the
educational qualifications required for the post having been
considered. It would not have been the recommendation envisaged
under
the law. At the time the application for the order for
appointment was made there was no recommendation that the appellants
be promoted.





It
must also follow that the appellants could not derive legitimate
expectation to be promoted from the fact that other employees
in
similar positions had been promoted, if the Executive Committee
acted on recommendations made on the basis of a misapprehension
by
the first respondent of the factors to be taken into account in
making them.





In
Muwenga v PTC
1997(2) ZLR 483(S) it was held that legitimate expectation to be
appointed to a post in which the employee was acting was contingent
upon the employee being qualified or arose from the contract of
employment itself. It could not be founded on experience alone.

GUBBAY CJ said at pp 485g-87a:





“It
was not in contention, and rightly so, that the omission by the
PTC to              promote
the appellant to the post of superintendent despite his long and
good              service
when acting in that capacity, was one of the unfair labour practices
             specified
in the legislation. Nonetheless the argument advanced was that
the              PTC
had created a situation which caused the appellant to
legitimately expect              that
he would be promoted to the post in which he was acting.







Even if it be assumed (without in
any way deciding the point) that it was             permissible
for the labour relations officer to accept the
appellant’s reference,             albeit
falling outside those definitive acts or omissions specified as
            constituting
unfair labour practices, the particular facts seem to me
            to exclude
a finding that the appellant had a tangible natural law right to
be             promoted
to the post of superintendent.





Most
importantly, at the date the appellant was appointed an acting
            superintendent
it must have been known to him that he lacked the necessary
            academic level
in mathematics to secure the substantive post …. The
            appellant
had the experience but not the academic qualification. How
            could
he, therefore, legitimately or reasonably expect to obtain the
            appointment?






I would merely emphasise, as
cautioned by CORBETT CJ [
Administrator,
           Transvaal
& Ors v Traub & Ors
1989
(4) SA 731(a)], that the need to avoid             undue judicial
interference in the administration of public authorities must
            always
be placed in the balance. Indeed, it could be submitted with
            some persuasion
that the promotion of an employee is a privilege, left to the
            discretion
of the employer, to be conferred when deemed fit. It is not a
            right that
an employee is entitled to claim unless, of course, his contract
of             employment
so provides.”






Muwenga’s
case
supra
is almost on all fours with the appellants’ case on the facts so
that its
ratio
decidendi
supports the
determination of the issues raised in the grounds of appeal.





The
appeal is dismissed with costs.














SANDURA
JA: I agree.














ZIYAMBI
JA: I agree.














Gutu
& Chikowero
,
appellants’ legal practitioners


Mawere
& Sibanda
,
respondents’ legal practitioners