Court name
Supreme Court of Zimbabwe
Case number
SC 15 of 2004
Civil Appeal 91 of 2003

Mandongwe v Art Corporation Ltd. (91/03) (SC 15 of 2004, Civil Appeal 91 of 2003) [2004] ZWSC 15 (10 March 2004);

Law report citations
Media neutral citation
[2004] ZWSC 15










DISTRIUTABLE
(12)


Judgment
No. SC 15/04


Civil
Appeal No. 91/03








HENRY
MANDONGWE v ART CORPORATION LIMITED








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & MALABA JA


HARARE,
FEBRUARY 12 & MARCH 11, 2004








R
Hanzi
, for the
appellant





S
Hwacha
, for the
respondent









ZIYAMBI JA: On 3 July 2000, at
2 pm, the appellant received, by hand of a fellow employee, a written
instruction from his superior,
the Human Resources Manager (“HRM”)
of the respondent to process a cheque for terminal benefits of an
employee of the respondent
before the close of business that day.







Soon after 3 pm, the HRM
telephoned the appellant to ascertain that he had received and
understood the instruction. The appellant
confirmed that he had
received the instruction and that it was lying in his tray. He was
reminded that the cheque was required to
be processed by the end of
the day.










The appellant’s response was
that he was working on a data processing system with an IT
specialist, a Mr Parsons (“Parsons”),
and that this work had to
be completed to enable the appellant to safely access certain data
required by the HRM. The HRM confirmed
with Parsons, in the
appellant’s hearing, that the project could be put on hold in order
to process the cheque and, having done
so, reminded the appellant of
the urgency of the matter.







At 3.45 pm, the appellant had not
complied with instruction and the Finance Manager, having been
apprised of the situation, called
the appellant and reminded him to
do as he had been told by the HRM. Despite the reminders, the
appellant did not comply with the
order and it is common cause, that
by close of business that day, the cheque had not been processed.







Disciplinary proceedings were
commenced against the appellant and, on 14 July 2000, he was charged
in terms of the Code of Conduct
governing the parties (“the Code”),
and dismissed from the respondent’s employment, having been found
guilty by the disciplinary
committee of deliberate and unreasonable
refusal to carry out a lawful instruction (insubordination).







An
appeal to the Chief Executive Officer in terms of the Code was
unsuccessful and the appellant appealed to the Labour Relations
Tribunal
,
now the Labour Court (“the Tribunal”).







Before the Tribunal, it was
common cause that the appellant received the instruction from his
superior and that he failed to comply
with it. The appellant,
however, contended that his failure to obey that order was neither
deliberate nor unreasonable. His reason
for not complying with the
instruction given was that he could not interrupt what he was doing
as this was likely to result in loss
of data which would be harmful
to the respondent company.







The Tribunal found the
appellant’s action to be both deliberate and unreasonable.
Aggrieved by the Tribunal’s decision the appellant
now appeals to
this Court.






Before us, Ms Hanzi,
who appeared for the appellant, submitted that the Tribunal erred in
law in coming to a finding that on the facts before it, the
appellant
refused to carry out a lawful instruction. It was not possible, she
submitted, to interrupt what he was doing without
causing detriment
to his employer, in that valuable payroll data could be lost if the
program was interrupted. She submitted that
the appellant’s
failure to comply with the instruction was not deliberate. On the
contrary, she submitted, he was carrying out
his duty reasonably and
diligently since failure to wind up the first assignment would have
resulted in the appellant losing data
for all staff of the
respondent’s companies, with the further result that the payrolls
would be disrupted and employees would fail
to receive their salaries
on time. The appellant, she submitted, would have been dismissed as
having been negligent had he disrupted
the payrolls. She submitted
that the appellant had acted as a reasonable employee and in the
employer’s best interests.







Counsel
were agreed that the offence consisted of two essential elements,
namely, deliberateness and unreasonableness. In the
appellant
’s
words, “the appellant would have deliberately refused to follow
instructions had he satisfied the requirement of
mens
rea
for wilfulness”.




I
turn to examine whether the appellant had the
mens
rea
for wilfulness
for if he had, his conduct was deliberate.







In R
v Tosela
1
the following observation was made by LANSDOWN JP:






“… in
general apart from the particular context, an act is wilful which is
deliberate or intentional, and not occasioned by ignorance,
inadvertence, accident, physical disability or like causes: not only
is knowledge present, but volition is brought into activity.”;










and in Horabin
v British Overseas
Airways Corporation
2
BARRY J remarked:






“To
be guilty of misconduct the person concerned must appreciate that he
is acting wrongfully
,
or is wrongfully omitting to act and yet persists in so acting or
omitting to act, with reckless indifference as to what the results
may be.”













In our jurisdiction, in Matereke
v Bowring &

Associates (Private)
Limited)
3,
GUBBAY JA (as he then was), dealing with the meaning of the words
“wilful disobedience to a lawful order” in terms of s 3 of
the
Labour Relations (General Conditions of Employment) (Termination of
Employment) Regulations, SI 371 of 1985, held that:






“The requirement of ‘wilful
disobedience’ is not defined in the Regulations. But, having
regard to the purpose of this piece of
legislation as well as to the
common law grounds for summary dismissal for wilful disobedience or
wilful misconduct, the words in
my view connote a deliberate and
serious refusal to obey. Knowledge and deliberateness must be
present. Disobedience must be intentional
and not the result of
mistake or inadvertence.”







See also Chironda
v Swift Transport
1996
(1) ZLR 142 (S).







As it was held in Chironda
v Swift Transport
,
supra4:





“… the
omission to comply with a lawful order is not necessarily born out of
a defiance of authority. Unless the proved facts lead
irresistibly
to an intention to hold authority at defiance, it is a serious
misdirection to hold that the appellant’s omission
to comply with
an order is wilful.”







The Tribunal found as follows:





“As
pointed out earlier, the instruction was not complied with by end of
business on Monday as the cheque was only ready by 0800 hours
the
next day. The question that needs to be answered first is, was
appellant’s failure to comply with the instruction deliberate.

The answer in my view is yes, and I find that the disciplinary
committee’s deliberations on this aspect and which were confirmed
by the Chief Executive Officer are beyond reproach. Appellant was
given the instruction by 1400 hours. The instruction was clear
as
to when it should be done. Appellant was aware as to when business
closes. He was aware that his work would need to be checked
by his
colleagues who knock off duty at 16:30 hours. He was therefore
aware of the urgency of the matter but nonetheless he left
the
instruction undone until towards the end of business. He continued
with his other duty despite repeated reminders from his
superiors
that the instruction had to be complied with before close of
business. This non-compliance by appellant can only be best
described as nothing else but deliberate”.






It
emerges quite clearly
from
the evidence that the appellant’s failure to comply with the order
was wilful and therefore deliberate. He acted in open
defiance to a
lawful order given to him by his employer. As an employee he was
obliged to carry out the instructions of his employer
in the manner
and at the time set by the employer. It was emphasized to him by two
managers that the matter was urgent yet he chose
to ignore the
urgency and to comply in his own time. His excuse that he could not
interrupt the salaries program with which he
was occupied is totally
untenable in the light of the evidence of Parsons and the IT manager
that the program could be interrupted
at any time without risk.







The element of unreasonableness
must next be considered. It is a question of law whether or not on
the facts, the appellant had a
reasonable excuse for his behaviour.
The inquiry is “was his belief so bizarre that no reasonable person
would have entertained
it”?
5







The Tribunal reasoned as follows:






“It
is common cause that the appellant was working on another assignment
on the computer when the instruction was given. It is also
common
cause that Mr Parsons was a very busy person and difficult to

get hold of. It was made clear to the appellant that the cheque had
to be ready by the same day even if it was to be collected
the next
day.







It was however the uncontroverted
evidence of N. Karuwo that it was possible for the appellant to bring
up another payroll whilst
working on his other assignment and without
losing his data. Mr Parsons had been made aware of this other
instruction and its urgency.
According to Mr Parsons’ memorandum
dated 4 July 2000, the prioritizing of the appellant’s
activities on the afternoon
in question was entirely the appellant’s
and that Mr Parsons’ activities on the payroll had no bearing on
the raising of the
cheque in issue.







In the circumstances I find that
the appellant’s explanation was unreasonable. He is trying to
hide behind Mr Parsons despite
Mr Parsons’ damning evidence.”






I
agree with the finding of the Tribunal. A reasonable employee in the
position of the appellant would not have entertained such
a belief as
the appellant alleged he did - particularly in view of the fact that
he was reminded twice by his superiors to comply
with a clear
instruction.







Accordingly the finding of the
Tribunal that the appellant’s failure to comply with the
instruction was both deliberate and unreasonable
cannot be faulted.







The appeal must, accordingly, be
dismissed but with no order as to costs since the appellant
prosecuted this appeal
in
forma pauperis
.






SANDURA
JA: I agree.





MALABA
JA: I agree.





Chibune
& Associates
,
appellant's legal practitioners





Dube,
Manikai & Hwacha
,
respondent's legal practitioners



1
1942
EDL 175 at 176




2
[1952]
2 All ER 1016 at 1022E




3


3
1987 (1) ZLR 206 (S) at 211G




4





4
at 146F




5
Mhowa
v Beverley Building Society 1998 (1) ZLR 547 at 549-550 per GUBBAY
CJ