REPORTABLE (33)

Judgment No. SC 39/04

Civil Appeal No. 126/02

TICHAKUNDA NGOSHI CHIROODZA v

(1) MUNICIPALITY OF CHITUNGWIZA

(2) CHAIRMAN, LOCAL GOVERNMENT BOARD

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & GWAUNZA JA

HARARE, FEBRUARY 19 & JUNE 17, 2004

T Bhatasara, for the appellant

G Mamvura, for the first respondent

No appearance for the second respondent

CHEDA JA: The first respondent is the Municipality of Chitungwiza, established in terms of the Urban Councils Act [Chapter 29:15] (“the Act”). The second respondent is the chairman of the Local Government Board. The appellant was employed by the first respondent as its town clerk.

In or about June 1986 the appellant was seconded by the Ministry of Local Government, Urban and Rural Development as treasurer to the first respondent. In November 1987 the appellant was appointed to the post of chief executive officer. His conditions of service were stated in the letter of appointment. Part 6 of these conditions related to disciplinary proceedings in the event of an alleged act of misconduct. These conditions related to the period when the first respondent was a Town Council, before it gained Municipal status. When the first respondent became a Municipality, the appellant became the town clerk. His appointment conditions then were different from the Code of Conduct and were now in terms of s 139 of the Act.

On 22 April 1999 the appellant was handed a letter of the same date from the mayor of the first respondent, advising him of his immediate suspension from employment. The letter said the appellant was being suspended on seven grounds, tabulated in the letter. The grounds were –

“1. Your complete disregard of Council procedures in handling of staff matters;

2. Failure to administer the staff loan account and taking a leading rôle to abuse it;

3. Flouting Council policies;

4. Your failure to adhere to budgetary procedures;

5. Deliberately misleading and/or failure to advise Council on matters within your means to do so;

6. Acts of insubordination; and

7. Your failure to properly manage property of Council.”

The letter went on to state:

“The above are some of the charges which are going to be investigated about yourself. In order to facilitate these investigations, I hereby invoke paragraph (a) of subsection (3) of section 139 of (the Act). You are hereby suspended forthwith.

Please take note that this suspension shall be without salary in terms of section 139(5)(b) of the Act. However, Council will decide on the allowance, if any, to be paid to you while on suspension. Please surrender your official car keys to the acting chamber secretary who shall make arrangements to drive you home.”

In compliance with s 139(2) of the Act, a letter was sent to the chairman of the Local Government Board. The chairman refers to this letter in his correspondence with the first respondent’s mayor.

Section 139(2) reads as follows:

“(2) A Council shall not discharge a town clerk unless the discharge has been approved by the Local Government Board.”

On the day he received the letter of suspension the appellant responded in writing and said he was surprised about the allegations of misconduct as none of them had been raised with him before.

On 9 August 1999 the chairperson of the ad hoc committee appointed to look into the suspension wrote to the appellant’s legal practitioners, Messrs Coghlan, Welsh & Guest, inviting them to appear at the Council Chamber on 16 August 1999 to present their client’s case before the ad hoc committee. The charges against the appellant were set out in detail in that letter. There were now seventeen charges with details given under each.

The record shows that no less than twenty-six meetings were held by the ad hoc committee to deliberate on the suspension of the appellant, and that in these meetings the appellant appeared with his legal practitioner, Mr Kanongovere.

Following these meetings the ad hoc committee recommended that the appellant be dismissed from employment after being found guilty of some, but not all, of the alleged acts of misconduct. Where there was no evidence on a particular act of misconduct the appellant was found not guilty.

The chairman of the Local Government Board was informed of the recommended dismissal and replied, advising of the Board’s approval of the dismissal.

The appellant then took the matter to the High Court on review. His application was dismissed with costs.

The appellant now appeals against this decision. The following are the appellant’s grounds of appeal:

“1. The learned judge erred in concluding that there was compliance with the provisions of section 139(3)(b) of (the Act) in the suspension of the applicant (now the appellant) and subsequent reporting of the matter to the Executive Committee by the Executive Mayor.

2. The learned judge erred in concluding that there was no bias on (the part of) the members of the ad hoc committee that investigated the applicant.

3. The learned judge erred in holding that the applicant had been granted a fair hearing.

4. The learned judge erred in concluding that the persons who adjudicated over the applicant’s matter had properly applied their minds to the issues at hand.

5. The learned judge erred in failing to hold that the decisions of the respondents were so grossly unreasonable that no reasonable person who had applied his mind to the question to be decided would have arrived at the decision arrived at.”

The first ground of appeal is meaningless, as it does not state in what way the provisions of the Act were not complied with. The mayor suspended the appellant by letter and advised him of the nature of the allegations of misconduct. The mayor also advised the chairman of the Local Government Board. A special meeting of the Council was called and the mayor reported on the suspension. An ad hoc committee was appointed to look into the matter. It reported back its findings and recommendations, after which authority to dismiss the appellant was sought and obtained from the Local Government Board. The appellant has not stated what was not complied with.

The second ground is a general allegation with no details. The ad hoc committee was appointed by the Council. The appellant and his legal practitioner attended the hearing. Nothing in the minutes suggests any bias on the part of any of the councillors.

The same applies to the third ground of appeal. The ad hoc committee went through each of the seventeen allegations and the appellant was given an opportunity to respond. I do not see how they can be said to have failed to apply their minds to the issues at hand.

In his heads of argument, the appellant suggests that on being suspended he should have been notified of the charges against him. The record shows that this was done. When the details of the allegations were advised for purposes of the hearing no response was provided, but the appellant and his legal practitioner attended the hearing.

The record shows that all through the hearing, when the allegations were dealt with, the appellant did not give any reply at all. He remained quiet while his legal practitioner took it upon himself to answer instead of the appellant. In his replies the legal practitioner did not give any relevant replies to the allegations but took the opportunity to argue that the details of the allegations and documents to support the allegations were not sent to him or his client. The ad hoc committee chairman replied that these had been sent to the legal practitioner. Despite his denial, the legal practitioner later conceded that they had in fact been sent and he had not taken the time to go through them.

The fear expressed by some councillors on the possibility of some documents being destroyed cannot be said to be an indication of bias. After all, the appellant was found not guilty on those allegations where there was no evidence.

The minutes show that no direct replies to the allegations of misconduct were placed on record by either the appellant or his legal practitioner. Mr Kanongovere did not give any helpful answers but chose to raise objections and queries, leaving the real allegations unanswered.

For example, when the inquiry started, the appellant’s legal practitioner raised complaints about not receiving the documents that supported the allegations, only to concede later that he had received them.

At the meeting of 24 August 1999, when the chairman said they wanted to hear the appellant’s responses to the allegations, it was the legal practitioner who replied and said that, in terms of the law, the committee raised allegations against his client and as such the committee was obliged to provide the necessary documents so that they could defend themselves against the allegations. He said the committee should go through the allegations paragraph by paragraph and substantiate them.

On the allegations of awarding contracts to Tonde Screen Printers without declaring his interest, Mr Kanongovere said whether or not his client declared his interest was secondary, adding that the question was whether his client awarded the contracts to Tonde Screen Printers. Mr Kanongovere went on to say that his client was neither a director nor a partner of Tonde Screen Printers and did not involve himself in the operations of the company. He further asked how his client had committed an act of misconduct, as the conditions of service referred to above did not apply to his client. There was, therefore, no direct reply or denial of that allegation.

With regard to the fact that the appellant had filled in and signed the application for a name search, Mr Kanongovere said he would request that the witness be called to give evidence. When the chairman repeated that they wanted to hear the appellant’s responses, Mr Kanongovere said they would be more comfortable to have information since the hearing was similar to a court. He went on to list payments by cheques to Tonde Screen Printers, which were not signed by his client.

Asked about the appellant signing loan cheques for himself, Mr Kanongovere replied that his client only counter-signed cheques and was not the main signatory to the cheques. He went on to say that if his client went through the proper channels in applying for the loan and it was approved and he only counter-signed the cheques, there was no misdemeanour on the part of his client.

On the issue of appointing GMP Real Estate as evaluators without a written contract, Mr Kanongovere said they wanted to call and question the source on how his client was a friend of Mr Gute of GMP Real Estate. Again, no direct answer was given. There was no denial or indication whether the appellant did or did not do that.

The end result was that the appellant never really gave direct responses to the allegations against him. Instead of indicating his reply, there were queries raised and in a number of counts there were no denials.

At the end of the hearings, the ad hoc committee found the appellant guilty on some, but not all, of the seventeen allegations.

The court a quo had all this evidence before it. After hearing the submissions from both parties, the court a quo could not find anything to support the allegation that the decision of the ad hoc committee was so outrageous in its defiance of logic or accepted standards that no reasonable person who had applied his mind to the issues to be decided would have arrived at that decision.

Mr Bhatasara submitted that there was no fair hearing and referred to the letter of 18 January 2000 as indicating that the Local Government Board approved the dismissal before the hearing. This was misleading, as the letter deals with the whole process followed by the first respondent and the ad hoc committee. The councillors who are alleged to have made certain remarks showing bias were not shown to be part of the ad hoc committee.

The allegation of not following the audi alteram partem rule is unfounded, as the record shows that the ad hoc committee went through each allegation in detail but the legal practitioner answered for his client.

The appellant failed to prove any of the established grounds for setting aside a decision on review. I therefore see no fault on the part of the court a quo in dismissing the application.

On the application for an order for reinstatement, this certainly cannot be done by a court on review. It is an inappropriate order. The court can only review the proceedings and either confirm or set them aside.

I agree with the court a quo’s conclusion and see no merit in the appeal.

The appeal is dismissed with costs.

SANDURA  JA: I agree.

GWAUNZA  JA: I agree.

Wintertons, appellant's legal practitioners

Scanlen & Holderness, first respondent's legal practitioners