Court name
Supreme Court of Zimbabwe
Case number
SC 141 of 2004
Civil Appeal 90 of 2002

Zimbabwe Congress of Trade Unions v Makonese (90/02) (SC 141 of 2004, Civil Appeal 90 of 2002) [2005] ZWSC 141 (15 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 141













DISTRIBUTABLE
(128)


Judgment
No. SC. 141/04


Civil
Appeal No. 90/02








ZIMBABWE
CONGRESS OF TRADE UNIONS





v
IGNATIOUS MAKONESE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA


HARARE,
MAY 4, 2004 & JUNE 16, 2005








T
Biti
, for the appellant





T
Garabga
, for the respondent





CHEDA
JA: The respondent was employed by the appellant as a director of
organisations. On 1 March 1995 the appellant applied
to a labour
relations officer for permission to dismiss the respondent from
employment. The appellant had no Code of Conduct and,
as such, the
request to dismiss the respondent had to be in terms of Statutory
Instrument No. 371/85 before it was amended.






The
authority to dismiss the respondent was sought after several
disciplinary hearings, at which the conduct of the respondent had
been discussed.





The
letter to the labour relations officer, in which permission to
dismiss the respondent was sought, stated as follows:





“We
wish to seek permission to dismiss Mr I Makonese, Head of
Organising Department, in terms of SI 371(a) H.







1. We will submit evidence that
Mr Makonese refused to drive the assigned organising vehicle
because it was labelled with the
ZCTU logo, thereby undermining and
compromising the organising programme.






2. We
will further submit that Mr Makonese is incompetent and
inefficient in the performance of his duties by not submitting
1995
Department Work Plan (SI 371 H), the ZCTU programmes like
May Day Preparation, Labour Forums and Regional Conferences
have been
severely compromised.”






Following
the above request, a hearing was convened at the Harare Regional
Offices of the Labour Relations Department of the Ministry
of Labour
on 4 May 1995, at which the respondent was present. The
summary of the hearing officer is to the effect that he
wondered why
the respondent did not want to be identified with the organisation
that represented the interest of the workers and
said that if he did
not want to be so associated, he was not fit to be part of that
organisation. He noted that the respondent
refused to take lawful
instructions form his employer. He granted permission to dismiss
him. The labour relations officer found
that the respondent had
refused to drive for personal reasons a Zimbabwe Congress of Trade
Unions (“ZCTU”) vehicle marked with
the ZCTU logo, then parked
the vehicle at a hotel and surrendered the keys to the Secretary
General.





It
is noted from the numerous hearings held with the respondent that he
had not denied that he refused to drive ZCTU vehicles, but
had
instead said that the Secretary General had excused him so that he
could attend a “
bhira”
for his son who was going overseas. The suggestion that he declined
to drive for the sake of his life seems to be an afterthought.





At
the hearing before the Labour Relations Tribunal (“the Tribunal”),
the respondent said:






“If
he had given me instructions, I could have altered my visit to the
rural area because I wanted to take my groceries to go and drop
my
groceries and bring back the car unless they wanted me to attend the
workshop, but he said ‘Okay that are going home and do
your
bhira
laughing me off’ (
sic).”





This
is in direct contrast to the submission that he declined to drive as
his life was at risk.





With
regard to his fear to drive the vehicle, the respondent was asked by
his counsel the following question:






“After the vehicle had been
labelled did you continue to use this vehicle?”.








His
reply was:









Whenever I was given a duty I
could use the motor vehicle during the day.”





Again
this shows that the refusal to drive for the sake of his safety, as
earlier stated, was not true.





A
suggestion has been made as to whether the order to drive the vehicle
was lawful or not. Since the respondent denied that he
refused to
carry out the instruction, the lawfulness or unlawfulness of the
order is irrelevant and cannot be available to him as
a defence.





However,
on the other hand, if one were to consider that, can it be said an
order is unlawful when –






(a) it is given by one’s
employer;







(b) it is capable of being
carried out by the employee;







(c) it is for the advancement of
the employer’s business;







(d) it is closely related to the
duties of the employee; and







(e) it is not a wrongful act?






In
this case, the respondent was responsible for organising conferences
and seminars and the driving concerned was to take people
to one such
conference.





It
was not necessary for the Tribunal to refer to the respondent’s
duties as not being a driver. His duties involved organising
conferences and seminars. The vehicle was issued to him for that
purpose, and the instruction to drive was for the purpose of taking
officials to a conference. I do not agree that this was an
instruction to carry out a duty that was unrelated to the nature of
his employment.





I
find that there was nothing unlawful about the order. It was
lawful. He refused to obey it. He gave false and different
excuses.





Once
the labour relations officer made a finding that the respondent
refused to carry out the order, he was entitled to allow the
dismissal of the respondent.





The
respondent was aware of the allegation against him. He gave
conflicting excuses. Having alleged that he was excused, he
turned
around and said he refused because he feared for his life. At some
stage he said if he had been instructed to drive, he
would have taken
his groceries with him and returned.





These
different stories would have made the labour relations officer find,
as I do, that the respondent was not being truthful.
The conclusion
that he had refused to carry out the order to drive people to a
conference cannot be faulted. The order was to
advance the business
of his employer. Refusal to carry it out would have frustrated
arrangements of the conference if the Secretary
General had not
finally driven the people to the conference himself.





The
respondent has not shown that there was any real danger to his life,
as he admitted that he used to drive the vehicle.





It
is clear that there was a wilful and deliberate refusal to carry out
the order given by the Secretary General. The suggestion
that the
respondent refused for his own safety does not excuse him from
disobeying a lawful order or instruction. See
Matereke
v C T Bowring & Associates (Pvt) Ltd

SC-80-87.





It
was not necessary for the appellant to show that its programme was
compromised. The Secretary General saved that situation
by driving
the vehicle himself.





The
suggestion that the respondent had not disobeyed a lawful order
entitled this Court to deal with the appeal and the question
of law
as to whether the order was lawful or not.





I
am therefore of the view that the refusal to obey the order by the
respondent was sufficiently proved.





The
appeal is allowed with costs. The order of the Tribunal is
therefore set aside and the decision of the labour relations officer
is reinstated.














CHIDAYUSIKU
CJ: I agree.














MALABA
JA: I agree.














Honey
& Blanckenberg
,
appellant's legal practitioners


Chingore
& Garabga
,
respondent's legal practitioners