Court name
Supreme Court of Zimbabwe
Case number
SC 72 of 2007
Civil Appeal 166 of 2006

Export Leaf Tobacco Company of Africa (Pvt) Ltd. v Gwavava (Civil Appeal No. 166/06 ) (SC 72 of 2007, Civil Appeal 166 of 2006) [2008] ZWSC 72 (01 October 2008);

Law report citations
Media neutral citation
[2008] ZWSC 72



















DISTRIBUTABLE
(70)


Judgment
No. SC 72/07


Civil
Appeal No. 166/06








EXPORT
LEAF TOBACCO COMPANY OF AFRICA (PRIVATE)
LIMITED








v
ALBERTINA GWAVAVA








SUPREME COURT OF
ZIMBABWE


SANDURA JA,
CHEDA JA & MALABA JA


HARARE, MAY 22, 2007 &
OCTOBER 2, 2008








H Zhou, for the
appellant





E W W Morris,
for the respondent






SANDURA JA:







This is an appeal against a judgment of the Labour Court in terms
of which the appellant was ordered to reinstate the respondent
as its
director of finance.







Although the record of the proceedings is voluminous, the essential
facts are relatively brief. They may be tabulated conveniently
as
follows –






1. At the relevant time the respondent (“Albertina”) was
employed by the appellant (“Export Leaf”) as the
director
of finance. Export Leaf was part of the British American Tobacco
Holdings group of companies (“BATco”).







2. As the director of finance, Albertina would countersign cheques
issued on behalf of Export Leaf as payment for services rendered
to
Export Leaf by other companies or individuals.







3. While still employed as the director of finance by Export Leaf,
Albertina was also employed by a company called Pickhill Enterprises

(Pvt) Ltd (“Pickhill”). She was the company secretary
of Pickhill and was also a director of the company. The company,

which appears to have been a family company, had two directors.
These were Albertina and a man called Elficio Gwavava.







4. Pickhill rendered accounting services to an unincorporated entity
called Kwik Courier, which rendered services to Export Leaf.
In
addition, Pickhill traded as Kwik Courier.







5. In the course of her employment as Export Leaf’s director of
finance, Albertina signed some cheques which were payable
to Kwik
Courier for services rendered to Export Leaf by Kwik Courier. Some
of these cheques were later deposited into Pickhill’s
bank
account.







6. The Standards of Business Conduct Manual, which governed BATco’s
employees, and with which Albertina was familiar, had
the following
provisions on the issue of conflicts of interest:







“Each employee should avoid situations where his/her personal
interest could conflict with the interest of the Company.
This is
an area in which it is impossible to give a comprehensive list, and
so employees must use their common sense and if in
doubt ask their
Director or the Company Secretary.







Employees must be aware that they may have a conflict between their
personal circumstances (e.g. because their spouse has a financial

interest in a company with which the Company intends to contract) and
their duty to the Company, and for this to be taken into
account in
relevant dealings. For example, a person with a conflict of
interest regarding himself/herself or a close family member,
or even
a friend, should not take part in relevant discussions and should
exclude himself/herself from the decision making process.
In
addition it is important that an employee with an interest in a
trading partner or supplier makes his/her position known. The
Company Secretary
keeps a register of such interests and should be
informed in writing via the employee’s Director
.”
(emphasis added)







7. In February 1998 Export Leaf required its senior employees,
including Albertina, to complete a form on which they were supposed

to declare any conflict of interest which they had in relation to
Export Leaf. Albertina completed and signed the form on 13 February

1998. On the form she declared that she understood how the
Standards of Business Conduct applied to her and agreed to abide by

them. She then went on to state that she had no conflict of
interest.







8. On 18 February 2000 Albertina was suspended from her duties
without pay and benefits, and was later charged with, inter alia,
dishonest misrepresentation in terms of BATco’s Code of
Conduct, the allegation being that she had breached BATco’s

written rules and laid down procedures when she did not disclose her
interests in enterprises which dealt with Export Leaf, i.e.
her
directorship in Pickhill, trading as Kwik Courier, and the fact that
she was the company secretary of Pickhill, trading as
Kwik Courier.







9. On 7 March 2000 a disciplinary hearing was conducted and
Albertina was found guilty as charged, and was dismissed from
her
post with effect from the date of her suspension. Thereafter, she
appealed to the Works Council, but the appeal was unsuccessful.







10. She then appealed to the Labour Court and was successful. The
Labour Court ordered her reinstatement with no loss of salary
or
benefits. Aggrieved by that decision, Export Leaf appealed to this
Court.







Two issues arise for determination in this appeal.







The first is whether Albertina had a conflict of interest to
declare. I have no doubt in my mind that she had. The conflict

arose from her dealings with Export Leaf on the one hand and Kwik
Courier on the other.







As already indicated, Albertina was employed by Export Leaf as the
company’s director of finance. Whilst employed in
that
position she was also employed by Pickhill which traded as Kwik
Courier. She was a director and the company secretary of
Pickhill.







Kwik Courier had business dealings with Export Leaf and was paid
for the services it rendered to Export Leaf by means of cheques

signed by Albertina, and later deposited into Pickhill’s bank
account. In other words, acting on behalf of Export Leaf,
Albertina
signed cheques payable to Kwik Courier, an organisation in which she
had an interest because her own company, Pickhill,
traded as Kwik
Courier. The cheques were later deposited into her company’s
bank account.







In terms of the provisions of the Standards of Business Conduct
Manual, Albertina was under an obligation to declare her interest
in
Kwik Courier because, in my view, Kwik Courier was “a trading
partner or supplier” of Export Leaf. It rendered
services to
Export Leaf and was paid for such services.







The second issue for determination in this appeal is whether
Albertina declared the conflict of interest in the manner required
by
the Standards of Business Conduct Manual by which she was bound.
The answer to that question is in the negative.







As already indicated, the Standards of Business Conduct Manual
contained the following provision:






“… it is important that an employee with an interest
in a trading partner or supplier makes his/her position known.
The
Company Secretary keeps a register of such interests and should be
informed in writing via the employee’s Director
.”
(emphasis added)







Quite clearly, this provision was not complied with because on
13 February 1998 Albertina completed and signed a BATco form
on
which she declared that she had no conflict of interest to disclose.







Thus, even if this Court were to accept Albertina's allegation that
some of the directors of Export Leaf were aware of her involvement

with Pickhill and Kwik Courier, that would not satisfy the
requirement laid down in the Standards of Business Conduct Manual.

She was aware that an employee with an interest in a trading partner
or supplier was obliged to make his/her position known to
BATco, and
that the Company Secretary kept a register of such interest and
should be informed about such interest in writing.







In my view, Albertina’s conduct was consistent with a clear
intention to mislead Export Leaf into believing that she had
no
conflict of interest, when in fact she had interests in Pickhill and
Kwik Courier which conflicted with her position in Export
Leaf. She
was, therefore, guilty of dishonest misrepresentation.







In the circumstances, the Court makes the following order –






1. The appeal is allowed with costs.







2. The order granted by the Labour Court is set aside and the
following is substituted –



“The appeal is dismissed with costs”.



















CHEDA JA: I agree



















MALABA JA: I agree



















Gill, Godlonton & Gerrans, appellant's legal practitioners



T.H. Chitapi & Associates, respondent's legal
practitioners