No. SC 45/06
Application No. 166/06
LEAF TOBACCO COMPANY OF AFRICA (PRIVATE)
COURT OF ZIMBABWE
SEPTEMBER 13 & OCTOBER 6, 2006
for the applicant
for the respondent
GWAUNZA JA, in Chambers in terms of r 5 of the Supreme Court Rules.
application is made in terms of s 92F(3) of the Labour Relations Act,
It follows the refusal by the Labour Court to grant leave to the
applicant to appeal to this Court against the lower courts
judgment of 20 January 2006. The applicant therefore seeks the
leave of this Court to file the appeal in question.
dismissing the application for leave to appeal against its judgment,
the Labour Court was satisfied that the intended appeal
was not on a
point of law, as required by s 92F(2) of the Labour Act [Cap
The applicant being of the opposite view, it now falls to this
Court to determine the matter.
against the respondent in the court a
was that she had failed to disclose, in the manner prescribed by the
applicant, her interest in enterprises which dealt with the
and was therefore guilty of dishonesty or deliberate
misrepresentation and corruption as defined in the applicants Code
At the time
this dispute arose, the respondent was employed by the applicant as
its financial director. It is common cause that
the respondent was
also the corporate secretary and co-director of a company called
Pickhill Enterprises. This company provided
accounting services to
Kwik Courier, a company that was engaged in business with the
applicant. The court a
accepted the respondents evidence that upon Kwik Couriers
request, the managing director of the applicant authorised her, as
signatory to the applicants cheques, to henceforth uncross or open
all cheques issued in favour of Kwik Courier in payment for
services to the applicant. The court also accepted the evidence of
the respondent that she, the applicants managing director
Courier later agreed that these cheques would be deposited into the
bank account of Pickhill Enterprises.
It is not in
dispute that the applicant in early February 1998 required its senior
employees to complete a form indicating, inter
whether or not they had conflicts of interest in relation to
enterprises which dealt with the employer, i.e. the applicant.
form was to be completed by February 16, 1998. Nor is it disputed
that the respondent filled in such a form on 13 February
indicated she had no conflicts of interest.
applicants case against the respondent was, therefore, that, by
completing the form in the manner she did, the respondent
deliberately failed to disclose certain interests that she had in an
enterprise that dealt with her employer. The enterprise
was Kwik Courier, whose cheques were deposited into Pickhill
to be no dispute that the relationship between the respondent, Kwik
Courier and Pickhill Enterprises constituted a conflict
the respondents relationship with her employer. What was in
dispute was whether or not the respondent had disclosed this interest
to the employer. The finding of the court a
which undoubtedly was a factual finding, was that she had done so.
This was because the court a
found that the respondents dealings with Kwik Courier had been at
the request of the applicants senior management. It becomes
evident from this that the respondent, as did the court a
interpreted disclosure in its wider, general sense. The
applicant, on the other hand, relied on a narrower definition of
word, that is, disclosure in the specific manner prescribed by the
indicated, the court a
dismissed the application for leave to appeal, on the basis that the
intended appeal was on points of facts, not law.
applicant argues that its grounds of appeal raised issues of law, in
particular, whether, in the face of the express conditions
employment which required disclosure of interests in a particular
form, the conduct of the respondent in stating that she had
interest, constituted the misconduct charged. The applicant argues
further that even the additional issue of whether such a
could be excluded by imputing knowledge of the respondents
interests upon some managers, was a question of law, not fact.
persuaded by these contentions. The respondent cannot have failed
to appreciate that a conflict of interest arose from her
with the applicant on one hand, and Kwik Courier on the other. It
may be accepted as a matter of fact, as found by the
that the applicants senior management not only knew, but had
actually instigated, these dealings. What, however, is in my view
relevant is that at a later date, the applicant required of its
employees that they recorded any interests they had, in writing.
is not in dispute that the respondent did not so disclose her
evidence was that her superiors had advised her not to disclose the
interest in the form, since such interest was known to management.
In other words, she did not disclose the interest, not because she
did not have it, but because she was advised not to.
issue to be determined in the circumstances of this case as outlined,
is whether disclosure of an interest made in any other
that prescribed by the applicant, i.e. in writing, absolved the
respondent from effecting the disclosure in the prescribed
differently, the issue is whether the respondents failure to
disclose her interest in the manner prescribed by her employer,
constituted the misconduct charged. This is clearly a question of
law. I am persuaded by the applicants submission that questions
of law do not cease to be such merely because they are underpinned by
am satisfied the applicants main ground of appeal raises a point
of law and not fact. The applicant is therefore entitled
relief sought. Since the applicant has indicated it will not seek
costs against the respondent, no such order shall be made.
It is in the premises ordered as
1. The applicant be and is hereby
granted leave to appeal to this Court against the judgment of the
Labour Court in Case No. LC/11/198/2005.
shall be no order as to costs.
Godlonton & Gerrans,
applicants legal practitioners
H Chitapi & Associates,
respondent's legal practitioners