Douglas Nyathi and Others v Lupane State University

The applicants were nine lecturers employed by Lupane State University in the Department of Development Studies, based in Bulawayo while the main campus in Lupane (171km away) was under construction. On 22 March 2018, the University Registrar issued a notice deferring relocation of staff and students to Lupane main campus until 23 July 2018 due to challenges regarding provision of resources. Five days later, on 27 March 2018, the same Registrar issued a memorandum reversing this decision and requiring immediate relocation on 8 April 2018. The applicants received this notice on 4 April 2018, giving them only four days to relocate. The respondent made these decisions without consulting the affected staff or giving them an opportunity to make representations. The applicants approached the court urgently seeking to suspend the 8 April 2018 relocation. The respondent sought a postponement ostensibly to negotiate, undertaking to put the relocation on hold, but then relocated the students on 8 April 2018 during the postponement period and purported to withdraw the 27 March memorandum while expecting lecturers to commute from Bulawayo to Lupane.

• Whether the respondent's decision to relocate staff on four days' notice without consultation violated administrative law principles
• Whether the initial decision to defer relocation until 23 July 2018 created a legitimate expectation
• Whether the failure to consult affected employees before making the relocation decision violated the audi alteram partem rule
• Whether the decision to relocate on such short notice was reasonable and rational
• Whether the respondent's conduct during the postponement period was proper

The court granted the provisional order in terms of the amended draft order, suspending the relocation of applicants to Lupane Campus and interdicting the respondent from forcing such relocation pending finalization of the matter, and ordering the return of students to Bulawayo to continue lectures there until the matter is finalized.

An employer's decision to relocate professional employees must comply with administrative law principles of reasonableness, rationality and procedural fairness. Where an employer has made a decision creating a legitimate expectation (here, deferral of relocation to 23 July 2018), it cannot arbitrarily reverse that decision without: (1) consulting the affected employees; (2) giving them an opportunity to make representations (audi alteram partem); (3) considering their personal circumstances and wishes; and (4) providing reasonable notice. A decision to relocate employees on four days' notice without consultation violates section 68(1) of the Constitution guaranteeing lawful, reasonable and procedurally fair administrative conduct. Professional employees of long standing in senior positions have a legitimate expectation to be consulted before decisions affecting their employment location are made.

The court made strong observations about the respondent's conduct, stating it was "far from satisfactory, smacking as it does of a complete lack of probity" and betrayed "an unpleasant attempt to pull the wool over the court's eye." The court noted that the respondent sought a postponement "for all the wrong reasons" and used the weekend to relocate students while ostensibly negotiating, which was "completely preposterous." Mathonsi J observed that "as long as this court is still open and still discharging its function as the arbiter of fairness and justice between parties, including the mighty and the powerless, it cannot allow conduct as exhibited by the employer of the applicants in this case to perpetuate." The court emphasized that administrative prerogative does not override constitutionally guaranteed employee rights. The biblical reference to God hearing Adam's defence before banishing him from the Garden of Eden (citing Taylor v Minister of Education) illustrated the ancient and fundamental nature of the audi alteram partem principle.

This case is significant in Zimbabwean labour and administrative law for establishing that: (1) Employers cannot unilaterally relocate professional employees, particularly those of long standing in senior positions, without consultation and consideration of their personal circumstances; (2) Administrative decisions affecting employees must comply with constitutional guarantees of procedural fairness including the audi alteram partem principle; (3) Once an employer creates a legitimate expectation through a decision, it cannot arbitrarily reverse that decision without proper consultation; (4) Courts will not tolerate employers attempting to circumvent judicial processes by changing facts on the ground during postponement periods; (5) The case applies constitutional administrative law principles (section 68 of the Constitution and the Administrative Justice Act) to employment relationships, demonstrating that "it is no longer business as usual for administrative authorities." The judgment reinforces the protection of employees' rights against arbitrary administrative action by powerful institutional employers.