Court name
Supreme Court of Zimbabwe
Case number
SC 58 of 2004
Civil Appeal 433 of 2002

Mushayavanhu v Public Service Commission (33/02) (SC 58 of 2004, Civil Appeal 433 of 2002) [2004] ZWSC 58 (09 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 58






















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65 of 1992, which Regulations have since been repealed.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