Court name
Supreme Court of Zimbabwe
Case number
SC 70 of 2004
Civil Appeal 94 of 2002

Usore v Secretary for Transport and Communications and Another (94/02) (SC 70 of 2004, Civil Appeal 94 of 2002) [2004] ZWSC 70 (09 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 70



13


SC
70/04


















DISTRIBUTABLE
(48)


Judgment
No. SC 70/04


Civil
Appeal No. 94/02








JOHN
USORE v





(1)
SECRETARY FOR TRANSPORT AND COMMUNICATIONS


(2) THE
CHAIRMAN OF THE PUBLIC SERVICE COMMISSION








SUPREME COURT
OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
JUNE 22 & SEPTEMBER 10, 2004








G
T Chapwanya
, for the
appellant





F
Ruzive
, for the
respondents





SANDURA  JA:
This is an appeal against a judgment of the High Court which
dismissed the appellant’s application for
an order setting aside
his dismissal from the Public Service.





The relevant
factual background may be tabulated conveniently as follows –






1. The appellant (“John”) was
the acting chief technician in the Central Mechanical Equipment
Department (“the C.M.E.D.”),
which at that time was part of the
Ministry of Transport and Communications. He was charged with acts
of misconduct, was found
guilty and was dismissed from the Public
Service. He then filed a court application in the High Court
seeking a review of the proceedings
leading to his dismissal.







2. On 24 March 2000 the High
Court set aside the disciplinary proceedings which had been
instituted against John and completed,
on the ground that there had
been non-compliance with the Public Service Regulations, 2000,
published in Statutory Instrument 1 of
2000 (“the Regulations”).







3. On 13 July 2000 the
second respondent “the Chairman”) sent John a letter informing
him,
inter alia,
that he would be reinstated but would, nevertheless, be suspended
from duty with effect from 20 July 2000 on one half of his
salary for three months, during which period his case would be
processed and finalised. The letter was subsequently replaced by
another which informed John that the first respondent (“the
Secretary”) had been directed to institute fresh disciplinary
proceedings
against him in full compliance with the provisions of the
Regulations.







4. On 19 July 2000 the
Acting Secretary, Mrs Guti, (“Guti”) preferred charges
against John as follows –






“You
are hereby charged with misconduct as defined in terms of paragraphs
2, 3

and 13(b) of the First Schedule (section 2) to the Public Service
Regulations, 2000 … -






1. Failure to obey lawful
instructions including circulars, instructions or standing orders
issued by the (Public Service Commission)
(“the Commission”), the
Treasury or the Accounting Officer.






It
is alleged that you failed to observe Tender Board procedure by
requesting MPD Auto Grinders to undertake reconditioning
services
in excess of $150 000.00 in October 1995.
(Annexures C 1/914/18/26/30/34/42/46/50/54/63/68 in your
possession refers
(
sic)).






2. Falsification of any official
document or causing to be recorded therein any false or incorrect
information.





It
is alleged that you falsely quoted Tender Board Resolution TBR 6211
in the requisitions requesting MPD Auto Grinders
to undertake
reconditioning services in October 1995.






3. Improper, negligent,
inefficient or incompetent performance of duties.







It is alleged that –






a. as the person responsible for
the Reconditioning Workshop you failed to ensure that the
reconditioning services to be undertaken
by MPD Auto Grinders
were carried out expeditiously. When the items were returned, many
in a partially completed state, they
had been at MPD Auto
Grinders for over two years.





b. When the
items were returned, many in a partially completed state, you did not
ensure that the charges raised by MPD Auto
Grinders were fair
and reasonable. The audit adjustments to the charges raised
amounted to $191 547.42 which would have been
a loss to (the)
C.M.E.D. if audit had not intervened (Annexure B in your
possession refers).






c. Despite your close working
relationship with Mammoth Motors you did not exercise due care
in certifying vouchers allegedly
for the supply of tools by
Mammoth Motors to the Reconditioning Workshop. In fact you
certified payment vouchers for $488 565.84
in October 1998,
which remain unclaimed by Mammoth Motors to this day, without
establishing whether the items described as tools,
but appeared on
the invoices as machines and components, were ever received
(Annexures A 1/2/3/4/5/6 in your possession refers
(
sic)).






d. The part
you played in these transactions with MPD Auto Grinders and
Mammoth Motors showed a total disregard for the
interests of the
Department particularly as previous dealings with these two companies
were highly suspect.






In
terms of section 44(2) of the same Regulations you are required
to submit a written reply to these allegations within fourteen
days
from the date of receipt of this minute.”






These charges were the same as
the ones preferred against John earlier, the disciplinary proceedings
in respect of which had been
set aside by the High Court on the
ground that the Regulations had not been complied with.






5. On 8 August 2000 John
responded to the charges in writing. In essence, he denied all the
charges and raised certain procedural
issues which he wanted
addressed before the disciplinary hearing was held. He alleged that
the charges were not sufficiently supported
by documentary evidence.







6. On 10 August 2000 Guti
supplied John with copies of all the documents which she intended to
rely upon in the disciplinary
hearing. Numerous documents were
supplied on that occasion.







7. On 28 August 2000 John
requested Guti to supply additional documents and certain further
particulars in respect of the charges
levelled against him. In
reply, Guti indicated that all relevant documents and particulars had
already been supplied to him.







8. On 7 September 2000 Guti
invited John to attend a disciplinary hearing on 27 September
2000 for the determination of
the charges of misconduct preferred
against him. The hearing date was later altered to 4 October
2000 and John was informed
on 12 September 2000.







9. On 18 September 2000 John
wrote to Guti informing her that he was pleased to hear of the
postponement of the hearing, and
that in his view the postponement
was necessary,
inter
alia
, to enable her to
supply the additional documents and further particulars required by
him.







10. On 21 September 2000
Guti responded to John as follows:






“Please
be advised that you were furnished with copies of the evidence being
relied upon against you. Whether such evidence is adequate
or
inadequate will be determined at the conclusion of your case. The
misconduct hearing will proceed on 4 October 2000 as
directed.
The hearing will be addressing all the allegations which you were
preferred with.”









11. On 4 October 2000 the
disciplinary committee sat and John attended the hearing and admitted
that he was aware of the charges
against him. He indicated,
however, that he was not prepared to answer the charges because Guti
had not furnished him with sufficient
information. When asked what
additional documents he required, he did not specify them, but
requested that the hearing be postponed
for a week to enable him to
consult his lawyers. However, the disciplinary committee was of the
view that John had been given sufficient
time to prepare his defence
and consult his lawyers. It, therefore, declined to postpone the
hearing and John walked out. Nevertheless,
the hearing proceeded in
his absence.







12. At the conclusion of the
hearing, the disciplinary committee, acting in terms of s 45(6)
of the Regulations, submitted to
Guti a notification, in writing, of
its findings and recommendations thereon. It found that all the
charges had been proved, and
recommended that John be found guilty of
all the charges and dismissed from the Public Service with immediate
effect.







13. On 9 October 2000 the
disciplinary committee’s recommendations were accepted by Guti, and
John was dismissed from the Public
Service.







14. On 17 October 2000 John,
acting in terms of S 51(1) of the Regulations, requested the
Commission to review the determination
that he was guilty of
misconduct and the penalty of dismissal which had been imposed on
him.







15. On 22 January 2001 the
Commission, after reviewing the determination and penalty, confirmed
them in terms of s 51(3)
of the Regulations, and dismissed
John’s application. That decision was subsequently conveyed to
John on 8 February 2001.







16. On 5 March 2001 John
filed a court application in the High Court seeking a review and the
setting aside of the decision made
by the Commission and the findings
and recommendations made by the disciplinary committee. That
application was subsequently dismissed
with no order as to costs.







17. On 20 March 2002 John,
aggrieved by the High Court decision, noted an appeal to this Court.






The
order sought by John in the court
a quo
was in the following terms:






“1. That misconduct proceedings
instituted against the applicant (John) together with his suspension
from Government Service, preferment
of misconduct charges against the
applicant, determination of those misconduct allegations and meting
(out) of penalty be and are
hereby set aside.





2. That the
respondents be and are hereby directed to pay the applicant full
salary, bonuses and all other benefits from when he was
discharged
from Government Service by the first respondent.





3. That the
respondents pay the costs of this application.”






As
correctly observed by the learned judge in the court
a quo,
in the court application John challenged the entire process extending
from the time the charges were preferred against him to the
time when
the Commission dismissed his review application.





The grounds
upon which that challenge was based were as follows –






(a) That the Commission usurped
the functions of the Secretary by deciding and directing that he be
charged with misconduct and that
the disciplinary proceedings be
completed within three months;







(b) That the charges against him
were not particularised and that he was not supplied with the
particulars which would have enabled
him to sufficiently address the
charges;







(c) That he was not granted the
opportunity to consult his lawyers by the disciplinary committee;







(d) That the disciplinary
committee hearing was irregular in that it was proceeded with in his
absence;







(e) That the decision of the
disciplinary committee was not supported by the evidence before it
and that the Secretary’s decision
was so unreasonable that no
person who had applied his mind to the issues to be determined would
have arrived at it; and







(f) That the refusal by the
Commission to pay him his salary and benefits from 17 October
2000, when he filed the application
for a review of the findings and
recommendations by the disciplinary committee, and 22 January
2001, when the Commission determined
that application, was unlawful.





The
last ground was conceded by the Commission and I need not say
anything further about it.





However, the
learned judge, in a carefully prepared judgment, came to the
conclusion that the rest of the grounds were devoid of
merit.





Dealing
with the first ground set out above, the learned judge said this at
p 10 of the cyclostyled judgment (no. HH-34-2002):





“I
think I can dispose of the first … ground of review quite quickly.
The second respondent (i.e. the Commission) is the applicant’s
employer. If any misconduct comes to its attention it would be
remiss of it not to direct a Head of Ministry to prefer misconduct
charges as may be appropriate against one of its employees. In the
particular circumstances of this case, the second respondent
was
aware that the misconduct proceedings against the applicant had been
set aside by this Court for the reason that there had been
a failure
to comply with the Public Service Regulations. It was aware that
the order setting aside the proceedings permitted the
preferment of
the same charges against the applicant.”





I entirely
agree. In any event, John would have been charged with misconduct
by the Secretary even if there had been no directive
from the
Commission. In the circumstances, the first ground did not have any
substance.





I now wish
to deal with the second ground, which was that the charges were not
particularised. However, as can be observed from
the charges
already set out in this judgment, detailed particulars were given in
respect of each charge, and John must have understood
the allegations
made against him.





The further
allegation by John that he had been denied certain documents and
particulars required for the formulation of his defence
was, in my
view, unfounded. The Secretary had supplied him with all the
documents on which the charges were based and made it quite
clear
that those were all the documents being relied upon.





In
any event, the matter had been the subject of earlier disciplinary
proceedings which had been set aside on the ground that the
Regulations had not been complied with. Before those proceedings
were held, John was supplied with numerous documents. As the
learned judge stated at p 6 of the cyclostyled judgment:





“It
is important to note that the disciplinary panel had before it not
only the applicant’s representations during the proceedings
which
were later set aside, but also the mass of documents as in
Annexure ‘H’ to the applicant’s founding affidavit.
In
addition, it was not in dispute that the charges against the
applicant had surfaced after an audit was conducted into the
operations
of the Department of which he was the head. The audit
report was produced after the applicant had been given ample
opportunity
to (make), and had in fact made, representations to the
auditors.”





In
the circumstances, I am satisfied that John had all the particulars
of the charges and all the documents required for the formulation
of
his defence.





The third
ground upon which John relied, i.e. that the disciplinary committee
did not grant him the opportunity to consult his lawyers,
was also
without merit. After the earlier disciplinary proceedings had been
set aside by the High Court on 24 March 2000,
John was again
charged with three acts of misconduct on 19 July 2000. From
that date, he should have made arrangements to
consult his lawyers.





After the
charges had been preferred against him, John was informed on
7 September 2000 that the disciplinary hearing would
be held on
27 September 2000, which date was later altered to 4 October
2000. It follows that from the time he was informed
of the date of
the hearing he had about one month in which to consult his lawyers.
In my view, the disciplinary committee was correct
in concluding that
John had had enough time within which to consult his lawyers before
the hearing.





I now wish
to consider the fourth ground relied upon by John, which was that the
disciplinary hearing was irregular because it was
proceeded with in
his absence. There was no substance in this ground because John
left the hearing entirely of his own volition.
The decision by the
disciplinary committee to proceed with the hearing was, therefore,
unassailable.





The fifth
ground, i.e. that the decision of the disciplinary committee was not
supported by the evidence, was also unfounded.
As the learned judge
stated at pp 6-7 of the cyclostyled judgment:





“I
am satisfied

that, having considered the matter on the merits despite the
applicant’s refusal to participate in the proceedings, the findings
of the disciplinary committee were entirely justified. … I would,
for the same reasons as the disciplinary panel, find no merit
in the
grounds for challenging the dismissal.





Having
perused the papers in this application, I am quite satisfied that the
disciplinary panel made correct findings with regard
to the
sufficiency of the particulars of the charges for the purposes of the
hearing, the issue of legal representation, the decision
to carry on
in his (John’s) absence, the evidence in support of the charges,
and I am also satisfied that the decision which the
panel reached was
reasonable. If the applicant had taken part in the hearing and put
up his defence it is clear that the documentary
evidence would have
been sufficient to establish his guilt. … There is no basis,
therefore, to allege, as did the applicant,
that the panel’s
decision was so unreasonable that any person applying his mind would
not have arrived at it. … I am therefore
quite satisfied that
the proceedings before the disciplinary panel and its decision cannot
be impugned.”





I
entirely agree with the observations and conclusions made by the
learned judge.





Finally,
I would like to deal with a ground raised by John in connection with
the challenge to the Commission’s proceedings.
The ground, which
was not raised in the founding affidavit but was raised in the
answering affidavit, was that the Commission’s
proceedings were
vitiated by the fact that one of the three commissioners who
determined his application was Guti, who had preferred
the charges
against him, found him guilty as charged and dismissed him.





In this
regard, the issue for consideration is whether the ground was
properly raised in the answering affidavit.





In
Mangwiza v Ziumbe N O
and Anor
2000 (2) ZLR
489 (S) at 492 D-G I said:






“It is well established that
in application proceedings the cause of action should be fully set
out in the founding affidavit,
and that new matters should not be
raised in an answering affidavit. That principle was laid down many
years ago in cases such
as
Coffee,
Tea and Chocolate Co, Ltd v Cape Trading Company

1930 CPD 81. …






In the present case, the issue of
cession was not raised by Perpetua in her founding affidavit and
could not, therefore, be raised
in the answering affidavit. No good
reason was given by her for her failure to include in her founding
affidavit the true basis
of her claim against Ziumbe.”






Thus, in the present case, the
failure to raise the ground in question in the founding affidavit
could only be condoned if John
gave a satisfactory explanation for
the omission. However, no explanation at all, let alone a
satisfactory one, was given by John
in his answering affidavit. The
learned judge was, therefore, correct in stating that the ground
should not have been raised in
the answering affidavit.






Nevertheless, John was not
prejudiced by that conclusion because the learned judge, acting
ex
abundanti cautela

(from excessive caution), considered the ground in question and
agreed that the Commission’s proceedings were vitiated by Guti’s
participation. Quite clearly, that conclusion was correct.






However, in the light of the
fact that the proceedings and decision of the disciplinary committee
were unassailable, the learned
judge decided that it was pointless
remitting the matter to the Commission for a fresh review of the
disciplinary committee’s decision
by a properly constituted
Commission. He, therefore, dismissed John’s application. In my
view, that decision cannot be faulted.






The appeal must, therefore,
fail. However, I shall not make any order as to costs because the
Commission seriously misdirected
itself when it allowed Guti to
participate in the review of her own decision.






In the circumstances, the
appeal is dismissed, with no order as to costs.









ZIYAMBI JA: I agree.









GWAUNZA JA: I agree.






Tizirai-Chapwanya &
Mabukwa
, appellant's
legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondents' legal practitioners