Court name
Supreme Court of Zimbabwe
Case number
SC 104 of 2002
Civil Appeal 302 of 2000

Standard Chartered Bank Zimbabwe Ltd. v Chipiningu (302/2000) (SC 104 of 2002, Civil Appeal 302 of 2000) [2004] ZWSC 104 (06 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 104


DISTRIBUTABLE (119)

















Judgment
No S.C. 104\2002


Civil
Appeal No 302\2000

















STANDARD
CHARTERED BANK OF ZIMBABWE LIMITED v
CHRISTOPHER CHIPININGU











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE
JUNE 4 2002 & SEPTEMBER 7, 2004








G.E.
Mandizha
,
for the appellant





D.A.
Machingura
,
for the respondent








MALABA
JA: This is an appeal from the Labour Relations Tribunal dated
14 September 2000 dismissing with costs an appeal from
a decision of
the Appeals Board of the National Employment Council for the Banking
Undertaking “the Appeals Board”). The Appeals
Board had held
that failure by the respondent to take care to protect the
appellant’s money against theft by a co-custodian of
the money did
not constitute “gross negligence causing serious loss to the bank.





The
respondent, to whom I shall refer as “Mr Chipiningu” was employed
by the appellant (“Standard Chartered”) a financial
institution
registered as such under the laws of Zimbabwe. He had worked as a
teller at the West End branch of Standard Chartered
in Harare and was
acting in the position of “Teller-One” at the time the events
which led to disciplinary action being taken
against him arose.





When
acting in the position of “Teller-One” Mr Chipiningu bore the
onerous duty of controlling treasury cash jointly with an
officer of
the rank of Deputy Personnel Manager or above. It was his duty as a
co-custodian of treasury cash to protect it from
possible theft by
anyone including the co-custodian. The strong room in which the
money was kept could only be opened by the use
of two different sets
of keys. Each custodian had to have physical custody of one set of
keys.





In
terms of the standing instructions brought to the attention of Mr
Chipiningu at the time he assumed the duties of joint controller
of
treasury cash, he was not to hand over his set of keys to the strong
room to anyone, including the co-custodian, without first
obtaining
authority from the Branch Manager.





Breach
of this rule was viewed seriously. It was a provision of the
standing instructions that a plea of acting in obedience to
superior
orders would not be accepted as an excuse for breach of the duty.
The reason for the strict prohibition is obvious.
If a custodian
handed over his set of keys to his co-custodian that would enable the
latter to open the strong room and have access
to treasury cash alone
without supervision from anyone. The co-custodian would, in the
circumstances, be placed in a position from
which he could easily
steal treasury cash and cause loss to the bank.





On
the morning of 10 November 1995 Mr Chipiningu was working at West End
branch serving customers. He had his set of keys to the
strong
room. One of the tellers ran out of cash and approached the
co-custodian of treasury cash, a Mr Jambo. Mr Jambo happened
to be
the branch operations manager. He exercised joint control with Mr
Chipiningu over payments of money into and withdrawals
from treasury.
He had physical possession of the second set of keys to the strong
room.





Mr
Jambo asked Mr Chipiningu to hand over to him the other set of keys
to the strong room. Mr Chipiningu was expected not to hand
over his
set of keys to the branch operations manager but to go with him to
the strong room and use his own keys as Mr Jambo also
used his to
jointly open the strong room. He had to witness the withdrawal of
the amount of cash needed by the teller and countersign
in the
treasury cash book that the amount recorded therein was the correct
amount of money withdrawn from treasury.





What
actually happened that day was in total breach of the standing
instructions. If Mr Chipiningu was unable, for some reason,
not to
accompany Mr Jambo to the strong room in compliance with his duties
as a co-custodian of treasury cash he had to first obtain
authority
from the Branch Manager to hand his keys over to him. He did
nothing of the sort but simply complied with the request
by Mr Jambo.
In handing over his set of keys to the co-custodian, Mr Chipiningu
enabled him to open the strong room and have access
to treasury cash
alone without anyone to oversee what he was doing.





Mr
Chipiningu said he handed over his set of keys to Mr Jambo and did
not accompany him to the strong room because he was busy serving
customers. He also said he trusted his co-custodian who was a
branch operations manager, presumably not to steal treasury cash.





Mr
Jambo returned Mr Chipiningu’s keys later that day. They never
jointly opened the strong room again. Ten days later Mr
Jambo
surrendered all the keys he held for the bank and disappeared. When
the strong room was opened and the cash therein counted,
it was found
that an amount of $50 000 was missing. Mr Jambo was suspected of
having stolen the money on 10 November when he opened
the strong room
and had access to treasury cash on his own.





It
was clear that Mr Chipiningu’s breach of duty as a custodian of
treasury cash had contributed in bringing about the serious
financial
loss suffered by the bank. On 13 December 1995 he was brought
before a disciplinary hearing officer to answer a charge
of “gross
negligence causing serious loss to the bank” in contravention of
section 11 subsection 15 of the Code of Conduct S.I.
201 of 1995.
The sanction for Category D offences in which the act of misconduct
charged against Mr Chipiningu fell was dismissal.





Mr
Chipiningu admitted that he was negligent in handing over his keys to
Mr Jambo without first obtaining authority from the Branch
Manager to
do so. He also admitted that his negligence caused the serious
financial loss suffered by the bank. He, however, argued
that his
negligence did not constitute “gross negligence”.





Different
answers were given by the different tribunals that had to determine
the question whether the admitted failure by Mr Chipiningu
to
discharge his duty to protect treasury cash constituted gross
negligence. The particulars were that he handed over his set of
keys to the strong room to his co-custodian without having obtained
authority to do so from the Branch Manager and as a result enabled
him to open the strong room and have access to treasury cash on his
own without any supervision.





The
disciplinary hearing officer ruled that his negligence was “gross”
and imposed the sanction of dismissal. Mr Chipiningu
appealed to the
Grievance and Disciplinary Committee. The members of the committee
who heard the appeal were equally divided on
the question. A second
hearing of the appeal by the Grievance and Disciplinary Committee was
reconvened. The decision this time
went against Standard Chartered.
It appealed to the Labour Relations Tribunal but lost.






In the
judgment the learned acting Chairman of the Tribunal made reference
to the definition of “gross negligence” given by
MURRAY J in
Rosenthal
v Marks

1944 TPD 172 cited in
Bickle
v Minister of Law and Order

1980 (1) ZLR 36 and
Zeeta
Manufacturers (Pvt) Ltd v Zimbabwe United Freight Company Ltd

1990 (1) ZLR 337 (H).





In
an apparent application of the principles extracted from the
definition of gross negligence adopted in the cases referred to,
the
learned acting Chairman said:-





“On
the facts of this case can it be said that the appellant’s conduct
in handing over his keys to the operations manager without
first
obtaining permission from the branch manager or administrative
manager amounted to a total disregard of his duty? I think
not,
otherwise what would have been the degree of negligence had he handed
over the keys to a total stranger?





It
appears to me that what we have here is a question of misplaced
trust. The operations manager was a person employed in a
responsible
position of trust. He had authority to enter the
treasury albeit under given restrictions. Although the appellant’s
conduct
amounted to negligence it certainly did not amount to gross
negligence.”








There
is no doubt that the learned acting Chairman of the Tribunal
misdirected himself in the application of the principles derived
from
the definition of “gross negligence” and reached a wrong
conclusion on the facts of the case. One must first have a clear
understanding of what “gross negligence” entails.






It has been
pointed out that “gross negligence” is a nebulous concept the
meaning of which depends on the context in which it
is used and it is
a futile exercise to seek to provide a definition which would be
applicable to all circumstances:
Gov.
R.S.A. (Dept of Ind) v Fibre Spinners and Weavers

1977 (2) SA 324 at 335E;
Bickle
v Minister of Law and Order

1980 ZLR 36 at 41A. It has been described as “ordinary negligence
of an aggravated form which falls short of willfulness” (
Bickle’s
case,
supra);
“very great negligence or want of even scant care or a failure to
exercise even that care which a careless person would use”(
Prosser,
“Law of Torts”
4
ed at 183).






The definition
of the concept which has for practical purposes, been quoted with
approval in many cases is that suggested by MURRAY
J in
Rosenthal
v Marks
,
supra
at
180 where he said:-






“Gross
negligence (
culpa
lata, crassa
)
connotes recklessness, an entire failure to give consideration to the
consequences of his actions, a total disregard of duty (see
per
WESSELS J in
Adlington’s
case
supra
at
p 973
,
and
Cordey v Cardiff Ice Co (
88
LT 192)).”









Prosser,
supra,

makes the observation at pp 183-184 that:-





“There
is, in short, no generally accepted meaning; but the probability is,
when the phrase is used, that it signifies more than ordinary
inadvertence or inattention, but less than conscious indifference to
consequences; and that it is, in other words, merely an extreme
departure from the ordinary standard of care.”









The meaning
of gross negligence may also be better understood from results of the
application of principles derived from the definitions
adopted in
some of these cases. In
CSAR
v Adlington & Co

1906 TS 964 WESSELS J gave as an example of “gross negligence”
the case of a person who, when he has taken charge of property,
leaves it so exposed that thieves may carry it off. In
Rosenthal’s
case,
supra,
there was no gross negligence because the garage owner had not
completely abandoned the duty to take care of the respondent’s
car
when he left it parked on the ground floor near to the entrance to
the street from where it was stolen.






The reasons
for the decision in the case of
Essa
v Divaris

1947 (1) SA 753 show that had the appellant proved that the fire
which damaged his motor vehicle, at the time it was parked in the
respondent’s garage, had been caused by the latter’s employee by
striking a match at night in order to be able to replace a plug
in
the petrol tank of one of the cars from which he was extracting
petrol, the respondent would have been found guilty of gross
negligence
rendering him liable for the damage which resulted from
the burning of the motor vehicle. Just like the person who leaves,
exposed
to thieves, the property of which he was expected to take
charge the respondent, in
Essa’s
case,
supra,
would have totally disregarded his duty to protect the respondent’s
motor vehicle at the time his employee struck a match and
caused the
fire which damaged the motor vehicle. The appellant in
Essa’s
case,
supra,
failed to prove the cause of the fire.






Lastly the
respondent in
Zeeta
Manufacturers (Pvt) Ltd v Zimbabwe United Freight Co Ltd
,
supra,
was found not guilty of “gross negligence” because when its
employee left the tricycle used in the delivery of parcels to various
customers, unattended and unlocked, leading to its being stolen
together with the parcel belonging to the appellant which was in
a
container fixed to the front part of the tricycle, the employee had
not completely abandoned his duty. He was in the course of
performing his duty of delivering parcels to the customers. When he
parked the tricycle it was in order to carry out his duty to
deliver
a parcel to one of the customers. His was ordinary negligence in
that his failure related to not locking the tricycle or
securing it
to some fixed object or having somebody attend it whilst he delivered
the parcel to the customer.






In this case
there was total disregard of the duty itself by Mr Chipiningu. The
facts of his case fit the example given by WESSELS
J in
Adlington’s
case
supra.
In leaving the property so exposed that thieves may carry it off
the person would have totally disregarded his duty to take care
of
the property. Mr Chipiningu did not seek authority from the Branch
Manager to do so before he handed over his set of keys to
Mr Jambo.
In handing over the set of keys to his co-custodian he totally
disregarded his duty to take care of treasury cash against
possible
theft by the joint custodian. He did not accompany Mr Jambo to the
strong room. As a result of being placed in possession
of both sets
of keys Mr Jambo was able to open the strong room and have access to
treasury cash on his own without any supervision.
He was put in a
position from which he was able to steal the money which he did. I
can think of no better example of an “entire
failure of duty” or
“total disregard of duty”.





The
reasoning by the learned acting Chairman that Mr Chipiningu would
have been guilty of gross negligence if he handed the keys
to a total
stranger, suggests that at the time he handed over the keys to his
co-custodian and let him open the strong room and have
access to
treasury cash, he was still acting in accordance with some aspect of
his duties as defined in the standing instructions.
The fact is
that Mr Chipiningu stopped acting in accordance with his duties as a
joint controller of treasury cash the moment he
handed over his keys
to the strong room to Mr Jambo without having obtained the authority
of the Branch Manager to do so. From
then on he did nothing to
protect treasury cash from theft.





The
explanation given by Mr Chipiningu for his entire failure of duty did
not help him at all. He was not to discharge his own
duty through
the branch operations manager. It must have been clear to him from
the nature of the duties given to him, that the
other custodian would
always be an officer of a rank higher than or superior to that of
Teller-One. They were equal partners when
exercising the duties of
joint custodians of treasury cash.





The
issue was, in fact, not whether Mr Chipiningu was right or wrong in
trusting his co-custodian of treasury cash with both sets
of keys to
the strong room. Whether the handing over of his set of keys to Mr
Jambo was motivated by the trust he placed in him
or not did not
detract from the fact that it constituted an entire failure of duty
or a total disregard of duty by him. In my view
Standard Chartered
proved “gross negligence” against Mr Chipiningu and should have
succeeded in it appeal to the Labour Relations
Tribunal.





The
appeal accordingly succeeds with costs. The decision of the Labour
Relations Tribunal is set aside and in its place substituted
the
following:-





“The
appeal against the determination of the Appeals Board of the National
Employment Council of the Banking Undertaking is allowed
with costs.”















CHIDYAUSIKU
CJ:








ZIYAMBI
JA: I agree












Coghlan,
Welsh & Guest
,
appellant's legal practitioners


Dube,
Manikai & Hwacha
,
respondent's legal practitioners