Judgment No. SC 58/04

Civil Appeal No. 433/02

PINIAS RABSON MUSHAYAVANHU v

PUBLIC SERVICE COMMISSION

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & GWAUNZA JA

HARARE, MAY 24 & SEPTEMBER 10, 2004

H Zhou, for the appellant

F Ruzive, for the respondent

SANDURA  JA: This is an appeal against a judgment of the Labour Relations Tribunal (now the Labour Court) (“the Tribunal”) which dismissed the appellant’s appeal to the Tribunal against the termination of his employment by the respondent.

The relevant facts are as follows.

The appellant was employed by the respondent as a deputy comptroller in the Department of State Residences, Office of the President and Cabinet, and was in charge of the official residence of the late Vice President, Dr Joshua Nkomo, at Mandara (“the residence”).

On 10 April 1998 the appellant was suspended from duty following misconduct allegations. Thereafter, on 9 July 1998, he was charged with four acts of misconduct in terms of the Public Service (Disciplinary) Regulations, 1992, published in Statutory Instrument 65 of 1992, which Regulations have since been repealed.

The specific allegations made against the appellant were set out in a letter written by the Director of State Residences as follows:

“1. You misappropriated $17 200, being advances for officers/employees’ Travelling and Subsistence Allowances which you collected from Head Office on their behalf and you failed to account for the money …

2. You improperly, negligently and inefficiently performed your duties in that your Consumable Stores register could not be verified fully as the original register of these items was missing. The one register with a few entries without much meaning was recovered from you after your suspension outside the work premises since you had taken it home. Groceries such as sugar and milk were kept by you in the shower room adjacent to the toilet.

3. You failed to obey lawful instructions issued in regard to the ‘Administration of Supplies and Empty Returns’. The register was not up to date and entries did not make sense as these were not supported by source documents e.g. Requisition or Issue Voucher Numbers in appropriate columns. You did not comply with my instruction to you referenced 2/9/46 dated 16 February 1998.

4. You tried to pressurise Thembinkosi Ncube into accepting that you had given her $7 000.00 soon after the revelation of your alleged misconduct. You also visited Zanele Nkomo at her home in Bulawayo on Saturday, 4 April 1998, with the intention of influencing her to change her mind on her original statement regarding your alleged misconduct.”

In reply, the appellant prepared a twelve page statement vehemently denying all the charges.

Subsequently, an inquiry into the allegations of misconduct was held and it concluded that the allegations in respect of all the counts had been established. Consequently, the appellant’s employment was terminated.

Aggrieved by that result, the appellant appealed to the Tribunal, and was successful in respect of counts 1, 3 and 4. However, with regard to the second count, the Tribunal upheld the finding by the inquiry as well as the penalty of dismissal imposed by the respondent.

Dissatisfied with that result, the appellant appealed to this Court.

The sole issue for determination in this appeal is whether the Tribunal correctly found that the appellant had “improperly, negligently and inefficiently performed his duties”, bearing in mind the particulars of the charge set out in the second count. Those particulars are as follows –

1. that the “Consumable Stores register could not be verified fully as the original register of these items was missing";

2. that “the one register with a few entries without much meaning was recovered from (the appellant) after (his) suspension outside the work premises since (he) had taken it home”; and

3. that “groceries such as sugar and milk were kept by (the appellant) in the shower room adjacent to the toilet”.

In my view, the Tribunal seriously misdirected itself when it concluded that the charge as particularised in the second count had been proved. I say so because the three particulars of negligence and inefficiency set out above, which formed the basis of the allegation that the appellant had improperly, negligently and inefficiently performed his duties, do not in any way support or justify that allegation. An examination of the three particulars confirms this.

With regard to the first particular, assuming that it is correct that the “Consumable Stores register could not be verified fully as the original register of these items was missing", that fact would not justify the conclusion that the appellant had improperly, negligently and inefficiently performed his duties, unless it was established that the appellant had been responsible for the disappearance of the register. There was, however, no evidence to that effect. Consequently, Mr Ruzive, who appeared for the respondent, conceded that the first particular of negligence and inefficiency relied upon by the respondent did not support the charge. In my view, that concession was properly made.

I now wish to examine the second particular of negligence and inefficiency relied upon by the respondent, which was that “the one register with a few entries without much meaning was recovered from (the appellant) after (his) suspension outside the work premises since (he) had taken it home”. In this regard, I wish to make two points.

The first point is that there was no evidence to support the allegation that the few entries in the register were “without meaning”. Indeed, Mr Ruzive conceded this. An examination of the record of the inquiry proceedings clearly shows that the appellant was cross-examined at length about the register and the entries therein, and that he answered all questions put to him satisfactorily.

The second point is that no adverse inference should be drawn from the fact that the register which was in use at the time was in the possession of the appellant at a time when he was away from his office. The appellant gave a reasonable explanation for this. The explanation was that he had just returned to Harare from Bulawayo after delivering some groceries to the late Vice President’s residence in that city and was still in possession of the register, having taken it with him to Bulawayo, as was the usual practice when making such deliveries. He had not completed making all the entries in the register, and intended doing so at home before going to his office. However, before he went to his office he was contacted by his superiors, informed that he had been suspended with immediate effect and was instructed to hand over the register to them, which he did.

In the circumstances, the second particular of negligence and inefficiency relied upon by the respondent does not support the charge in the second count.

I now come to the third particular of negligence and inefficiency alleged by the respondent, which was that “groceries such as sugar and milk were kept by (the appellant) in the shower room adjacent to the toilet”. In this regard, I wish to make three points.

The first point is that the groceries referred to were not for the late Vice President’s household but were for the staff working at the residence.

The second point is that the provincial magistrate who presided over the inquiry determined that this allegation was so trivial that it had to be ignored. Consequently, he informed advocate Hungwe, who appeared for the appellant at the inquiry, that it was not necessary for the appellant to deal with the allegation, as the following passage from the record of the inquiry proceedings shows:

“Advocate Hungwe: There is an allegation in that charge that groceries and milk were kept in a shower room adjacent to the toilet. Would you like to comment on that?

Chairman: Might I suggest that I don’t believe it is necessary to go into (that). I don’t regard that as being of sufficient gravity to concern the inquiry.”

Finally, the third point is that Mr Ruzive conceded that the allegation that the groceries were kept in the shower room did not indicate that the appellant had improperly, negligently and inefficiently performed his duties. I have no doubt that that concession was properly made.

There was, therefore, no logical basis on which the Tribunal found that the allegations in the second count had been established.

In the circumstances, the appeal is allowed with costs. The order granted by the Labour Relations Tribunal is set aside and the following is substituted –

“1. The appeal is allowed with costs.

2. The finding by the Chairman of the Inquiry that the charges against the appellant had been proved is set aside.

3. The appellant’s dismissal is set aside.”

CHEDA JA: I agree.

GWAUNZA JA: I agree.

Mhiribidi, Ngarava & Moyo, appellant's legal practitioners

Civil Division of the Attorney-General’s Office, respondent's legal practitioners