REPORTABLE (72)

Judgment No. SC. 73/05

Civil Appeal No. 238/04

CITY OF HARARE v SILAS LUTHINGO RUSVINGO

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, MAY 5, 2005 & JANUARY 25, 2006

L Uriri, for the appellant

H Simpson, for the respondent

MALABA JA: On 19 July 2002 the respondent, who was employed by the appellant as a principal administrative officer (finance) in the Department of Housing and Community Services, was found guilty of conduct unbecoming of an employee under clause 18(c) of the Collective Agreement of the Harare Municipality Undertaking (General Conditions of Service), Statutory Instrument 66 of 1992 (“the Code”). The penalty imposed on him was that he be demoted from Grade 5 to Grade 7, transferred to another department and issued with a final warning.

On 30 June 2004 the High Court set aside the decision of the appellant’s Review Board and ordered that the respondent be reinstated into his position as a principal administrative officer (finance). Each party was ordered to pay its own costs. This appeal is against the judgment of the High Court.

The facts of the case are these. On 22 November 2000 the respondent was summoned to attend a meeting with the director and acting deputy director of Housing and Community Services. At the meeting the acting deputy director complained of the respondent’s lack of commitment to duty. The allegations against him were that he had absented himself from work on 15 November 2000 and failed to attend a meeting with the Finance Committee. It was also alleged that on 20 November 2000 the respondent had failed to attend a meeting with the director.

After the meeting, the director wrote a letter of reprimand to the respondent on 23 November 2000. The letter read:

“LACK OF COMMITMENT TO DUTY

I refer to the meeting held in my office on 22 November 2000, and wish to reiterate the concerns raised regarding your apparent lack of commitment to duty.

On the 15^th November 2000 I had to send your junior to attend the Finance Committee meeting which you were supposed to attend, because you were not available.

On 20^th November 2000 you were absent from duty for no valid reason. You were asked to attend a pre-meeting on 22^nd November 2000 with me, to prepare for the Finance Committee meeting which was to be held the same day. You did not attend that pre-meeting, instead you attended to your private business.

It appeared that when I spoke to you about your lack of commitment to your duties, you did not show any remorse. You as a senior person in the Department, I expect you to set a good example to your subordinates.

If you do not improve in your work performance, disciplinary action will be taken against you.”

On 27 November 2000 the respondent dismissed the reprimand in a letter written in language that was intentionally insulting to and disrespectful of his superiors at work. He described the presentation of the complaint of lack of commitment to duty made against him to the director by the acting director as “ranting and raving” and “barking like a dog”. He poured scorn on the decision by the director to reprimand him.

As a result of the coarse invectives used by the respondent in his letter, he was charged with the offence of conduct unbecoming of an employee under clause 18(c) of the Code.

On 7 August 2001 he appeared before the Inquiries Committee, which heard evidence from the department’s representative and the respondent and determined that the language used in the letter of 27 November 2000 was insulting to and disrespectful of the respondent’s superiors and constituted conduct unbecoming of an employee. The Inquiries Committee made its report to the Executive Committee and recommended as a possible penalty that the respondent be demoted from Grade 5 to Grade 7, transferred to another department and given a final warning.

After consideration of the report of the Inquiries Committee on the findings of fact and recommendations on the possible penalty, the Executive Committee also came to the conclusion that the respondent was guilty of conduct unbecoming of an employee in using insulting and disrespectful language addressed to his superiors at work. It imposed the penalty recommended by the Inquiries Committee.

A Board which reviewed the respondent’s case on 9 June 2002 also came to the same conclusion.

On 29 November 2002 the respondent took the decision of the appellant to the High Court on review. The learned Judge who heard the application for review also found as a fact that the language used by the respondent in the letter of 27 November 2000 was insulting to and disrespectful of his superiors. She also found as a fact that his use of such language constituted conduct unbecoming of an employee. She, however, set aside the decision on the ground of gross procedural irregularities, in that the Executive Committee had conducted an inquiry into the allegations of misconduct levelled against the respondent without him having been first suspended from duty by the head of department, as required by s 141(4) of the Urban Councils Act [Chapter 29:15] (“the Act”).

It is common cause that the respondent was not suspended from duty when the disciplinary proceedings were instituted against him. Mr Uriri, for the appellant, argued on appeal that the learned Judge nonetheless misdirected herself because the procedure adopted by the appellant is provided for under s 141(2)(b) of the Act.

Sections 141(2), 141(4), 141(5) and 141(6) of the Act provide as follows:

“141 (2) Subject to the conditions of service of the employee concerned, a council or, in the case of a municipal council, the executive committee of the council may at any time discharge an employee other than a senior official –

(a) upon notice of not less than three months; or

(b) summarily on the ground of misconduct, dishonesty, negligence or any other ground that would in law justify discharge without notice.

(3) …

(4) If it appears to a head of department that any employee of the council who is not a senior official has been guilty of such conduct that it is desirable that that employee should not be permitted to carry on his work, he –

(a) may suspend the employee from office and require him forthwith to leave his place of work; and

(b) shall forthwith notify the town clerk or secretary of the council, as the case may be, in writing, of such suspension.

(5) Upon receipt of a notification of suspension in terms of subsection (4), the town clerk or secretary, as the case may be, shall cause the suspension to be reported at the first opportunity to –

(a) the executive committee of the council in the case of a municipality; or

(b) the council, in any other case.

(6) Where an executive committee or a council has received a report of a suspension in terms of subsection (5), the executive committee or the council shall without delay –

(a) conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and

(b) after considering the results of the inquiry, decide whether or not –

(i) to lift the suspension; or

(ii) to do any one or more of the following –

A. reprimand the employee concerned;

B. reduce the salary or any allowance payable to the employee concerned;

C. transfer the employee concerned to another post or grade, the salary of which is less than that received by him at the date of the imposition of the penalty;

D. impose a fine not exceeding three thousand dollars or three months salary, which fine may be recovered by deductions from the salary of the employee concerned;

E. subject to subsection (3), discharge the employee concerned.”

It is clear that two different procedures of dealing with allegations of misconduct levelled against the employee are envisaged under ss 141(2)(b) and 141(4) of the Act. Although the procedure under s 141(2)(b) of the Act involves summary discharge of an employee where allegations of misconduct are of a serious nature, it does not exclude the holding of an inquiry considering the applicability of the principles of natural justice to decisions of public bodies such as the appellant. There was nothing procedurally irregular in the appellant having an inquiry carried out into the allegations of misconduct levelled against the respondent without him having been suspended by the head of the department and after discovering that the degree of seriousness of the misconduct did not justify summary discharge imposing some other appropriate penalty. The fact that the respondent was not suspended suggests that the head of the department did not consider that he was guilty of such conduct that it was desirable that the respondent should not be permitted to carry on his work.

In The Municipality of Chinhoyi v Mupandira S-146-96 the employee was not suspended pending the inquiry into the allegations of misconduct levelled against him. Referring to ss 90(10) and 90(13), which are predecessors to ss 141(2) and 141(4) of the Act, McNALLY  JA, at pp 5-6 of the cyclostyled judgment, said:

“Where an employee was suspended pending an enquiry (my underlining) then the decision to suspend must be that of the relevant senior official not that of the Council. And that suspension must be followed by the enquiry required by subs (13).

In the present case there was no question of the employee being suspended pending an enquiry. The enquiry was conducted and concluded without his being suspended.

A full scale enquiry was launched. He was called in by a committee of senior officials and given an opportunity to explain his conduct. The officials were not satisfied with his explanation. They recommended to the Municipality on 26 October 1994 that he be summarily dismissed ‘in terms of paragraph (b) of subsection (7) of section 90 of the Urban Councils Act’.

The Municipality resolved on 1 November 1994 to dismiss him summarily. Up to that point everything was being done correctly in terms of s 90(7).”

The only difference between Mupandira’s case supra and that of the respondent is that instead of recommending that he be summarily dismissed the Inquiries Committee recommended the imposition of a less severe penalty on the ground that the misconduct the respondent was guilty of was not so serious as to justify dismissal. The Executive Committee had a discretion under s 141(2) not to dismiss the respondent from employment for the misconduct it found him guilty of.

The respondent relied on two decisions of the High Court in Kimbini and Ors v City of Mutare HH-116-2000 and Mudziri v City of Harare HH-83-2001. The decisions in both cases do not advance his case because the appellants in those cases had been properly suspended from work by heads of departments.

The appeal is therefore allowed with costs. The order of the court a quo is set aside and substituted the following order –

“The application is dismissed with costs”.

SANDURA JA: I agree.

GWAUNZA JA: I agree.

Honey & Blanckenberg appellant's legal practitioners

Manase & Manase, respondent's legal practitioners