Court name
Supreme Court of Zimbabwe
Case number
SC 120 of 2002
Civil Appeal 289 of 2000

Chinodakufa and Another v Inquiries Committee of the City of Harare Department of Works and Another (289/00) (SC 120 of 2002, Civil Appeal 289 of 2000) [2003] ZWSC 120 (26 February 2003);

Law report citations
Media neutral citation
[2003] ZWSC 120













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