Prescription of acts of misconduct

21 Nov, 2021 - 00:11 0 Views
Prescription of acts of misconduct

The Sunday Mail

Legal Matters with Arthur Marara

The last instalment dealt with the question of prescription of disputes. The call was for timeous prosecution of cases. There is also an interesting dimension for employers, acts of misconduct can also prescribe which means that you will not be able to charge an employee once those acts have prescribed. Let us look at this in a bit of a detail and see how this principle works.

Tanganda Tea Company (“the company”) bought macadamia seedlings from Mr Scott. These seedlings fell under the authority of the employee Michael, and were planted in 2007. Michael was advised that the macadamia seedlings were supposed to be grafted before being planted. The employee did not graft the seedlings. Inspections of the macadamia plantation revealed that over 35ha thereof exhibited a poor crop. The company consequently around August/September 2010, engaged two consultants to do a comprehensive assessment of the crop and submit a report to the chief executive officer.

The evidence placed before the Court suggested that it takes some 5 years for a macadamia crop to reach maturity. The assessment revealed that the seedlings had not been grafted before planting, a circumstance that was said to be largely responsible for the poor state of the macadamia crop. This fact was then communicated to the Company, which as a result laid the charges of misconduct referred to, against the employee. This was in October 2011. The consequent disciplinary proceedings were held from 26 to October 28, 2011.

Based on the period between the planting of the macadamia seedlings in 2007, and the bringing of misconduct charges related to it (in October 2011), the employee contended that the charges were prescribed. The Labour Court that dealt with the appeal did not buy into this argument. The Court’s position was that the evidence before it clearly showed that Tanganda Tea Company became aware of the Michael’s gross negligence in relation to agricultural activities at the estates in 2010,  after it had engaged consultants, and not earlier.”

The Company’s first consultant, James Wessels, detected signs of bad management of the macadamia crop and its resultant poor condition. However, it was only after reports were submitted by the second consultant, Timothy Fennel following his closer analysis of the crop situation, that the “true cause” of this poor state of affairs was disclosed to the respondent.

This was towards the end of 2010.

Prior to this, the various other persons that the appellant alleged must have been, or were aware of, the poor state of the crop, and the main causes thereof, could not have appreciated that part of the problem arose from the fact that the seedlings had not been grafted before planting.

The charges of gross negligence in the performance of his work were not restricted to the issue of the grafting of the macadamia seedlings but went beyond this, to encompass the Michael’s management of the whole estate.

The issue of the macadamia seedlings stood out among the various other factors alleged to have resulted in the crop exhibiting signs of failure to thrive.

On appeal before the Supreme Court, there was nothing on the record to suggest that while some of the company’s senior officials may have been made aware of the challenges faced by the appellant generally in managing the macadamia plantation, their attention was also drawn specifically to both the failure by the appellant to graft the seedlings before planting, and the causes thereof. Further the appellant did not state that the officials whom he named, had the capacity or obligation to submit reports to the respondent’s Chief Executive Officer in Harare.

The Supreme Court agreed with the Labour Court’s factual finding that the company only became aware of the appellant’s failure to graft the seedlings in question before planting them, in the latter part of 2010.

It is on that basis that the question of prescription in relation to the issue was supposed to be determined.

In terms of ss 16 (1) and (3) of the Prescription Act [Chapter 8:11] prescription shall commence to run as soon as a debt is due. Moreover, a debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises: provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.

The Supreme Court had to determine whether the company could have, through the exercise of reasonable care, acquired this knowledge before that time.

In  “Extinctive Prescription” by South African author MM Loubster, the learned author stated as follows:

“It is suggested that the following factors will be relevant to determine whether the creditor has reasonably endeavoured to acquire the requisite knowledge: the physical and mental capacity of the creditor to acquire knowledge; the opportunity to acquire knowledge from sources open to investigation; whether the creditor already knew facts which would have caused an ordinary, prudent person to investigate further; and the nature of the relationship between creditor and debtor . . . It appears that reasonable care for purposes of (the equivalent section to our Prescription Act) is not measured by the objective standard of the hypothetical reasonable or prudent person, but rather by the more subjective standard of a reasonable person with the creditor’s characteristics.”

The charges against Michael were preferred against him in October 2011. Michael failed to demonstrate that his superior whom he reported to had specific knowledge relating to his failure to graft the macadamia seedlings.

Nor does he give any cogent basis for the belief that the two conveyed such knowledge to the relevant superior authorities in Harare.

When the excerpt cited above was applied to the circumstances of this case, the Supreme Court held that the Appellant had failed to establish that the company, and his relevant superiors in Harare;

  1. i) had the capacity and opportunity to acquire the requisite knowledge from sources ‘open to investigation’; or
  2. ii) already knew facts which would have caused an ordinary, prudent person to investigate further:

Consequently, the Supreme Court found that Michael failed to show that the company knew, or should have known, of the alleged gross incompetence in the performance of his duties, before 2010.

You can read the judgment of the Supreme Court to learn more about this case in MICHEAL HENRY BROWNE v TANGANDA TEA COMPANY SC22/16.


LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.


 Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]


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