“In order for the defence of impossibility to succeed, the impossibility must be objective in the sense that it must be a real impossibility which is not based on a party’s disinterest or unwillingness to perform their contractual duties”.
Manyenga v Petrozim (Private) Limited is authority of the fact that an employee facing a disciplinary charge involving an omission can have a defence by way of arguing that they couldn’t perform the legal duty imposed on them.
This case deals with a situation where an employee was charged and dismissed for an omission that he was accused of committing at a time when he was employed as an acting general manager for the respondent company. The omission was that he had failed to advise the respondent’s board of the operational challenges that were being faced by the respondent. He argued that he could not have been able to advise the board due to the shortfalls that were inherent in his job. It was this argument that boiled down to the common law rule/defence called “lex non cogit ad impossibilia”. The effect of the employee’s defence was that “objective impossibility in discharging a legal duty is always a defence when the type of conduct charged is an omission.” It was this defence that was placed before the Supreme Court.
The appellant, Johannes Manyenga, worked as the Deputy General Manager for the Respondent in this matter. He was accused of non-disclosure to the board of material issues that were negatively affecting his employer. Despite denying the charges levelled against him, he was eventually dismissed from employment. Irked by the disciplinary hearing outcome, the appellant unsuccessfully appealed to the Labour Court. It was the Labour Court’s position that there was no misdirection on the part of the disciplinary hearing, considering the evidence that was placed before it. Aggrieved with the Labour Court’s findings, the appellant approached the Supreme Court. The question before the Supreme Court was whether the court had found sufficient ground to confirm the conviction and dismissal of the appellant.
The court’s findings and the law
Impossibility of performance
The first observation that the Supreme Court made was that “objective impossibility in discharging a legal duty is always a defence when the type of conduct charged is an omission”. Here the court’s observation was that the appellant employee could not inform the respondent’s board of directors of the shortcomings in the respondent’s operations because his ability to do so was curtailed by the respondent. No board meeting had been held at the time the appellant acted as the General Manager (GM) for the Respondent. It was also observed that there was a standing instruction that all communication to the board had to happen through the GM. His substantive appointment was that of a deputy GM. In addition, it was observed that no employee was reporting to the Appellant as the Acting GM. All these barriers made it objectively impossible for the Appellant to inform the respondent or its board of the challenges that were faced by the operations. The impossibility of performing the expected duties was seen as a defence when one is charged with an omission.
For impossibility to be a defence, the court ruled that the impossibility must result in “real impossibility”. Imagery or hypothetical impossibility will not apply as a defence against a charge of an omission. In addition, the impossibility must be permanent. Temporary impossibility will not exonerate an employee from not performing.
Admission in the course of proceedings
The objective impossibility faced by the Appellant to inform the Respondent of the operational challenges bedevilling its operations was confirmed by an admission that was made in the disciplinary hearing. The court argued that once an admission was made it would bind the maker if later such an admission is not withdrawn. It remarked:
“Indeed, the effect of an admission is settled law. Once made it binds its maker with the attendant consequences see Kettex Holdings P/L v S Kencor Management Services P/L HH 236-15.”
The admission confirmed that the employee could not inform the board of the challenges faced by the respondent company when no such board meeting had been convened.
The court also argued that the fact that the appellant had access to the board chairman did not mean that he had access to the board. It distinguished between the board as a committee of persons that convene at specific intervals as opposed to its chairman who is a single individual. It further argued that a board entails a properly constituted board. Without access to this properly constituted board, the appellant could not have been said to have had access to the board.
Conclusion of the dispute
The court found that the Appellant must not have been found guilty and dismissed because it was impossible to do what the respondent expected him to do.
The importance of this judgement is twofold. An employee can escape a disciplinary charge wherein he or she is accused of not doing something by pointing out that it was not possible to do the legal act expected of him or her. The failure must not be deliberate or temporary. It must be a permanent impossibility that is not imputed on the employee. This judgement also highlights the effect of an admission. Once an admission has been put across and not withdrawn it has the legal effect of binding the person that makes the admission. Proof of such an admission may not be required.
 Manyenga v Petrozim (Private) Limited on paragraph 10.
 Manyenga v Petrozim (Private) Limited on paragraph 17.
 Manyenga v Petrozim (Private) Limited on paragraph 24.
 Manyenga v Petrozim (Private) Limited on paragraph 32 wherein it was held: “To add on to the above submissions, the appellant’s predicament was further compounded by the fact that he had no subordinates reporting to him on the company’s operations.”
 Manyenga v Petrozim (Private) Limited on paragraph 27.
 Manyenga v Petrozim (Private) Limited on paragraph 28 wherein the court remarked: “Furthermore, the impossibility to perform must not only temporarily prevent a party from performing their contractual obligations. It must be one where performance of the contract is finally and completely impossible. See the case of Mutangadura v TS Timber Building Supplies 2009 (2) ZLR 424 (H) at 429C-F.”
 Manyenga v Petrozim (Private) Limited on paragraph 32.
 Manyenga v Petrozim (Private) Limited on paragraph 33.
 Manyenga v Petrozim (Private) Limited on paragraph 32.