DISTRIBUTABLE (103)

Judgment No. SC 120/02

Civil Appeal No. 289/00

(1) KIMBO TAVAZIVA CHINODAKUFA (2) WONDER TAVAZIVA

v (1) INQUIRIES COMMITTEE OF THE CITY OF HARARE DEPARTMENT OF WORKS

(2) THE CITY OF HARARE

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, JUNE 6, 2002 & FEBRUARY 27, 2003

V Shamu, for the appellants

P Nherere, for the respondents

MALABA JA: This is an appeal from a judgment of the High Court dated 27 September 2000 dismissing with costs an application for condonation of the late institution of review proceedings to set aside a decision by the second respondent to dismiss the appellants from employment.

The background facts of the case are these. The appellants are brothers. They were employed by the second respondent (“the City of Harare”) in the Department of Works and Highways. The first appellant (“Kimbo”) was employed as a superintendent whilst the second appellant (“Wonder”) was an assistant superintendent. In terms of the standing regulations of the City of Harare the appellants were answerable to their divisional head, who was the chief engineer or his deputy. They had to seek and obtain his authority before they engaged in any overtime work.

If the appellants wanted to do overtime work they had to fill in a form describing the work that needed to be done and the place of its performance. The divisional head had to satisfy himself that the work described in the form needed to be done outside normal working hours before authorising its performance by signing the form.

The appellants were required to complete a claim form giving details of the work done and the time taken to complete it. They were also required to complete an authority to pay overtime form which they submitted to the divisional head. Having satisfied himself that the work had been done properly within a reasonable time, the divisional head would authorise payment to the appellants for the hours they had spent doing the work outside normal working hours. It appears from these regulations that under no circumstances were the appellants to do overtime work without first obtaining the authority of the divisional head.

It is common cause that Kimbo appeared before the first respondent (“the inquiries committee”) on 2 June 1998 to answer charges of misconduct. It is also not in dispute that Wonder appeared before the inquiries committee on 17 July 1998, also facing charges of misconduct. The allegations in each case were that the appellants had on diverse occasions between January 1995 and September 1996 applied for and received payment for overtime work they had not been authorised to do by their divisional head. It was alleged in each case that what the appellant did was unbecoming of an employee in his position and inconsistent with the discharge of his duty and likely to bring the services of the City of Harare into disrepute. It was alleged they had contravened subsections 18(h) (i), (ii) and (iii) of the General Conditions of Service, Statutory Instrument 66 of 1992.

Kimbo had as a matter of fact received during the relevant period an amount of $81 693.09 for work purportedly done outside normal working hours for the City of Harare. Wonder had received $33 695.56. It was common cause that the work they had claimed they had done as overtime and were paid for had not been authorised by the divisional head. The authority to pay overtime forms which the appellants submitted to the accounts office, and on the basis of which they were paid what they had claimed, had not been signed by the divisional head. The authority to pay overtime forms had all been signed, in the spaces reserved for the divisional head, by junior officers subordinate to the appellants.

The defence proffered by each appellant to the inquiries committee was that the junior officers who signed the authority to pay overtime forms had been instructed orally by the deputy chief engineer, Mr Chamoko, to sign the forms on behalf of the divisional head. It is important to note at this stage that the appellants, who were legally represented by Mr Shamu, did not deny before the inquiries committee that the overtime work in respect of which they received payment had not been authorised by the divisional head.

Mr Chamoko gave evidence in each case. He denied ever giving oral instructions to the junior officers to sign the authority to pay overtime forms on behalf of the divisional head. He said he had not known that the appellants had worked overtime for which they had claimed and received payment. An instruction to the effect that junior officers should sign the authority to pay overtime forms would have had to be in writing as it would have constituted a major change in the policy of the City of Harare. Such a change of policy could only be brought about through a decision by the Council. Mr Chamoko revealed that in March 1996 he wrote a departmental memorandum to the appellants reminding them of the need to comply with the procedure requiring the divisional head to authorise overtime work and payment thereof. He said he could not at the same time issue an oral instruction, the effect of which undermined the efficacy of Council regulations. The inquiries committee found Mr Chamoko a credible witness and accepted his evidence. The finding was accepted by the learned judge in the court a quo. More importantly, it was not attacked on appeal.

The inquiries committee found on the facts proved that the appellants had committed the acts of misconduct charged against them. It recommended that the City of Harare (that is to say, the Council) dismiss them from employment. The appellants were dismissed from employment on 18 August 1998.

The appellants admit that they were aware at the time of receipt of the decision to dismiss them that they had to make an application to the High Court for review of the decision within eight weeks. They, however, decided to instruct their legal practitioner to approach, amongst other people, the Deputy Minister of Local Government, Public Works and National Housing, seeking a reversal of the decision to dismiss them from employment. When these administrative remedies failed to yield the desired results, the appellants instituted the application for review at the High Court on 1 July 1999. A period of seven months and two weeks had elapsed from the date of their dismissal.

The appellants’ applications for review were joined. The explanation given to the court a quo for the delay in instituting the review proceedings was that there were no funds to instruct the legal practitioner to make the application.

The learned judge in the court a quo found that the delay was inordinate and the explanation thereof unreasonable. He also found that the appellants had no prospects of success in the review of the decision to dismiss them from employment.

It has been said time and again that condonation is a matter for the discretion of the hearing judge. It was for the learned judge in the court a quo to decide, in the exercise of his discretion, whether good cause had been shown for the extension of time within which the appellants should have instituted the review proceedings. The appellate court will not interfere with the exercise of such discretion unless it finds that the decision was not based on reasonable grounds, that some wrong principle was applied, that matters were taken into account which should not have been considered, or that matters were not considered which should have been taken into account. See Cluff Minerals Exploration (Zimbabwe) Limited v Union Carbide Management Services (Private) Limited & Ors 1989 (3) ZLR 338 (S) at 344-5; Robinson v Minister of Lands, Agriculture and Rural Resettlement & Ano 1994 (2) ZLR 171 (S); ZFC Limited v Geza 1998 (1) ZLR 137 (S) at 139.

The ground on which the learned judge refused to accept the explanation for the delay given by the appellants was that they had not shown on a balance of probabilities that they had no funds to instruct the legal practitioner to institute the review proceedings timeously.

In my view, this conclusion is not grossly unreasonable. The appellants knew that they had to institute the review proceedings within the mandatory period of eight weeks from the day they knew of the decision to dismiss them from employment. They used money to instruct their legal practitioner to pursue other remedies for the same relief they would have sought under review proceedings. That decision alone suggests that they had funds to instruct a legal practitioner. They refrained from disclosing how much they had. The learned judge was not told how much was needed for the purposes of instituting review proceedings to decide whether the money they had was not enough for that purpose. Without information on how much the legal practitioner needed to institute review proceedings, the learned judge was entitled to infer from their ability to instruct the legal practitioner to pursue the administrative and political remedies to have the decision to dismiss them reversed that they had funds which could have been used to instruct the legal practitioner to institute the review proceedings timeously. It was telling against the appellants that they did not bother applying for leave to institute review proceedings in forma pauperis.

The existence of prospects of success on review depended upon the defence to the charges. The inquiries committee correctly decided that the issue before it was not whether or not the appellants did overtime work for which they received payment. The question was whether they had the authority of the divisional head to do overtime work. They clearly did not have the authority. They had no right to receive payment for overtime work which had not been authorised by their divisional head. The inquiries committee also correctly found proved that the junior officers who signed the payment of overtime forms had no authority to do so. In fact Mr Shamu, could not argue on behalf of the appellants that the finding of the inquiries committee was wrong. The conclusion of the learned judge that the appellants had no prospects of success on review is correct.

The appeal is dismissed with costs.

CHIDYAUSIKU CJ: I agree.

ZIYAMBI JA: I agree.

Vasco Shamu & Associates, appellants' legal practitioners

Kanokanga & Partners, respondents' legal practitioners