A Harare High Court Judge, Justice Chinamora, yesterday in a landmark ruling, reinstated the fired Netone CEO, Lazarus Muchenje, reversing his termination of employment by the State owned Mobile Network Operator.
In the ruling, Justice Chinamora ordered Netone, Zimbabwe’s second largest Telecomms company to meet the legal costs of the lawsuit.
Muchenje was first suspended exactly a year and a month ago, before approaching the court where he got a reprieve.
In what analysts described as a momentous judgement, the High Court stated that the termination of employment off a CEO of a State Owned Enterprise (SOE) should be done in accordance with the Public Entities and Corporate Governance Act, and not in terms of the Labor Act.
The ruling puts on ice the current jostling for the post which has already ensure after the Netone board led by Chairperson Ms Susan Mutangadura had fired Muchenje together with several other senior managers. Some applicants were already complaining that they hadn’t yet received feed back or acknowledgement of receipt of applications, 14 days after the set deadline.
The landmark ruling brings to finality the long drawn out legal wrangle between Muchenje and the Telecoms company, unless the state owned entity appeals at the Supreme court.
Muchenje was dismissed in December 2020 after Netone had reinstated him and for the second time fired him as chief executive officer on alleged criminal abuse of duty charges.
Muchenje, who was dismissed from Netone on July 9 recently made an urgent chamber application at the High Court challenging his dismissal and an interim order was granted in his favour suspending the letter of termination.
In dismissing Muchenje, NetOne served him with a letter advising him of termination of his contract. Muchenje today received a letter of withdrawal of the July termination which was signed by the acting chairperson Susan Mutangadura.
In that letter, NetOne was advising Muchenje that they were withdrawing the July 9 dismissal and that he should await further communication.
“As you are aware, on 9th July 2020, NetOne Cellular (PVT) limited delivered a letter to you terminating your fixed terms contract of employment on notice in terms of section 12 (4) of the Labour Act (chapter 28.01).
“You then filed an urgent chamber application seeking to challenge the termination of the contract in case No. HC 3611/20. The matter was argued before Justice Chinamhora and a judgement in the matter is still pending.
“Netone Cellular(PVT) limited hereby withdraws the letter of 9 July 2020 informing you of the termination of your contract. By extension, that termination of your contract is hereby withdrawn,” reads the letter.
At that very moment, Muchenje received another letter which was terminating his contract of employment for the second time. The letter which was again signed by Mutangadura was advising Muchenje of his removal from the position of chief executive officer of Netone.
“The Ministry of ICT Postal and Courier Services and his Excellency the President of the Republic of Zimbabwe have expressed concern about the long drawn out dispute between you and NetOne Cellular Pvt Limited.
“They both note that your relationship with the institution (NetOne Cellular Private Limited) has irretrievably broken down and that it is in everyone’s best interests that the parties disengage,” reads the letter.
It further stated that President Mnangagwa has given his endorsement for Muchenje’s removal from the office of chief executive officer of NetOne.
“In the circumstances by this letter and exercising its rights, NetOne Cellular Private Limited hereby terminates your employment contract on three months’ notice.
Since NetOne Cellular Private Limited does not require your services it hereby waived the need for you to work. You will not be required to report for duty. The notice period will be taken into account in calculating your terminal benefits,” reads the letter.
It further stated that Muchenje’s employment was terminated with immediate effect.
In his ruling, Justice Chinamhora said he had 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, and that the provisions of section 12(4) should not have been utilised to bring an end to the applicant’s employment.
“The letter of 9 July 2020 drafted by the 2nd respondent written or and on behalf of the 6th respondent addressed to the applicant be and is hereby declared null and void.
“The 1st to 4th and 6th respondents shall pay costs of this application, the one paying the others to be absolved” ruled Justice Chinamhora.
He further stated that the legislature saw it fit that good governace in public entities be enhanced by enacting a special purpose statute focussing on those institutions.
“Consequently the Public Entities Corporate Gorvenace Act was enacted to regulate how CEOs of public entities are employed or removed from employment. It is apparent from section 197 of the Constitution that through this legislation, parliament intended to guarantee tenure of office of people appointed as Ceo’s of State controlled entities,”he said.
Muchenje was represented by Innocent Chingarande of Titan Law as well as Advocate Taona Nyamakura.
Indications are that Netone will appeal the ruling at the Supreme court.