No reprieve for Muchenje . . .

State owned mobile phone network provider, NetOne’s chief executive Lazarus Muchenje, remains fired despite the High Court declaring that the company took a wrong legal path in sacking him, when it terminated his employment contract on three months’ notice.

The court declared the letter of his dismissal last year invalid.

However, Muchenje remain fired after President Mnangagwa endorsed his sacking to bring sanity at the State-run mobile phone service provider following long drawn dispute at the firm pitting Muchenje and the Susan Mutangadura-led board.

Muchenje went to the High Court in July last year seeking to suspend, at least temporarily, the decision by the company’s board to fire him on three months’ notice, hours after he was reinstated by a court order.

He wanted the dismissal suspended until the dispute was settled in court, though he was eventually fired by President Mnangagwa end of last year using the correct law.

When the matter was slated for hearing, Justice Chinamora granted the request and deferred the case to August 4, but suspended the termination of Muchenje’s contract until the matter is finalised.

At the time of issuing the interim order he asked both parties; Muchenje and Net-One legal counsel to address the court, on the return date, on the legality of the dismissal of Muchenje, done in terms of the Labour Act and common law, which requires the giving of three months’ notice.

Both lawyers were also asked to consider the Public Entity and Corporate Governance Act, as read together with Public Entity and Corporate Governance Regulations in particular Section 11, which provides for the dismissal of a chief executive of a public entity.

He required both legal counsel to indicate which of the Labour Act and Governance Act has precedence over the other.

This was because Section 11 of the regulations when read with Section 16 the Governance Act provides that “a chief executive of the public entity shall not be dismissed or be required to vacate his or her office unless he or she has been found guilty of misconduct inconsistent with the discharge of his or her duties or if he or she failed to comply with conditions of service or provision of the contract . . .”

After hearing arguments on the merits and having been addressed on two laws in questions, Justice Chinamora found that the two statutes were not inconsistent, but were enacted to deal with distinct areas governing the employment and termination of services of different categories of employees.

The court found nothing peculiar about such a legislative arrangement.

Justice Chinamora concluded the legislature saw it fit that good governance in public entities be enhanced by enacting a special purpose statute focussing on those institutions.

Consequently, said the judge, the Public Entities Corporate Governance Act was enacted to regulate how CEOs of public entities are employed or removed from employment.

The court was called upon the examine Section 16 of the Public Entities Corporate Governance Act and section 11 of the Regulations in the context of certain provisions of the Constitution.

The provisions, said Justice Chinamora, disclosed that the intention of the legislature was to provide security of tenure of employment of CEOs of public entities through a transparent and predictable process of removal from office, which was bolstered by obtaining the consent of the President.

Justice Chinamora also found no justification for preferring the application of common law in circumstances where the legislature had seen the prudence of creating a special regime to regulate a specific category of employees.

“In light of the demonstrable rationale for the enactment of the Public Entities Corporate Governance Act, no basis is apparent for the reliance on the common law right of dismissal,” he said.

“As I have come to the conclusion that there is no inconsistency between the Labour Act and the Public Entities Corporate Governance Act within the contemplation of section 2A (3) of the Labour Act, the provisions of section 12 (4) should not have been utilised to bring an end to the applicant’s employment.”

In the result, Justice Chinamora nullified the letter of 9 July 2020 drafted by Mr Winston Makamure written for and on behalf of the Net-One addressed to Muchenje.-ebusinessweekly