Court name
Supreme Court of Zimbabwe
Case number
SC 81 of 2005
Civil Appeal 11 of 2005

Chikomba Rural District Council v Marecha (11/05) (SC 81 of 2005, Civil Appeal 11 of 2005) [2005] ZWSC 81 (30 November 2005);

Law report citations
Media neutral citation
[2005] ZWSC 81



















Judgment
No. SC 81/05



Civil Appeal No. 11/05









CHIKOMBA RURAL DISTRICT
COUNCIL v SHADRECK MARECHA








SUPREME
COURT OF ZIMBABWE


SANDURA JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
DECEMBER 1, 2005











O
C Gutu
, for the
appellant





L
Uriri
, for the
respondent










ZIYAMBI JA: This is an appeal
against a decision of the Labour Court. At the end of the hearing we
dismissed the appeal with costs
and indicated that our reasons would
follow. I now set them out.







The respondent was employed by
the appellant as its Chief Executive Officer. On 10 September 2001,
the appellant wrote to the Labour
Relations Officer seeking authority
in terms of the Labour Relations (General Conditions of Employment)
(Termination of Employment)
Regulations, 1985, published in Statutory
Instrument 371 of 1985 (now repealed),(“the Regulations”), to
dismiss the respondent.
The letter read as follows:



“Re : APPLICATION FOR
AUTHORITY TO DISMISS MR SHADRECK MARECHA (CEO CHIKOMBA RURAL DISTRICT
COUNCIL)







We hereby apply for authority to
dismiss Mr Shadreck Marecha the CEO Chikomba Rural District Council
in terms of Statutory Instrument
371 of 1985, Labour Regulation
(General Conditions of Employment) Termination of Employment Section
3(a) with effect from the 6
th
September 2001.






Mr
Marecha has been on suspension pending investigations into
allegations of mismanagement of Council affairs. Investigations
have
revealed the following irregularities which are in contravention
of Statutory Instrument 371 of 1985, Labour Regulations (General
Conditions of Employment) Termination of Employment Regulations
Section 3(a):







(1) Non remittance of employees’
Pay As You Earn (PAYE) to the department of taxes as well as Pension
contributions to Old Mutual
since February 2000 and never as Chief
Executive Officer and Advisor to Council advised Council of the non
remittance of the deductions
which are in effect statutory
obligations.






(2) Illegal
advances of loans to self and employees as well as abuse of the above
facility against a background of Council bankruptcy.







(3) Illegal allocation of stands
without following or adhering to the waiting list.







(4) Violating the provisions of
section 120(3) of the Rural District Councils Act by failing to
manage Council assets as evidenced
by the following:







(a) All Council vehicles and
other equipment of value including buildings are not insured against
damage, theft or fire.






(b) There
is no proper asset register in place showing or reflecting values of
all council assets.







(5) Violating the provisions of
the Road Motor Traffic Act by allowing uninsured council vehicle to
be used in public roads.






(6) Violating
section 51 of the RDC Act by failing to put in place and maintain
council records including guard books for council
minutes and
resolutions.







(7) Failure to put in place and
maintain council Records relating to:






(a) Tender
Records or Documents


(b) Stands
Registers and



(c) Rates Registers.







(8) Misuse of Council vehicles
for private and personal business when conditions of service do not
provide for such benefits.







Can authority therefore be
granted to dismiss and terminate Mr Shadreck Marecha’s contract of
employment with Council.”







The same allegations were
repeated in a letter of suspension written on the same date to the
respondent advising him of the appellant’s
application to the
Labour Relations Officer for authority to dismiss him.







The hearing before the Labour
Relations Officer took place on 18 January 2002 and proceeded on the
basis of the allegations set out
above. At the end of the hearing
the Labour Relations Officer gave his decision in the following
terms:







“OBSERVATIONS AND
CONCLUSIONS:



1. Mr Marecha could not say how
and why council lost over $300 000,00 at Sadza Council offices.


2. Mr
Marecha should be held responsible for the missing Northwood stands
Register though he implicates Mrs Muranda – he should
take
responsibility as head of the Council – Collective responsibility.


3. Permission
to dismiss granted in terms of S.I. 371 of 1985 section 3(a).”







It will be readily observed that
paragraphs 1 and 2 of his conclusions relate to matters which were
not included in the list of allegations
upon which authority to
dismiss the respondent was sought. The respondent was aggrieved by
this determination and appealed to the
Senior Labour Relations
Officer who dismissed the appeal on the following grounds:



“The
most important duty of any Chief Executive Officer of any
organisation is to ENSURE that every task/operation is carried out.

It was proved that appellant did not ensure that PAYE and Pension
contributions were remitted, that uninsured vehicles were not
used on
public roads, that illegal advances of loans were given and that
Council finances were kept safely – All these were acts
inconsistent with conditions of service.”










Once
again, it will be apparent that the issues referred to in the Senior
Labour Relations Officer’s determination have no relation
to the
conclusions of the Labour Relations Officer. The respondent again
appealed - this time, to the Labour Court which made the
following
determination:






“My
view is that upon finding the Appellant innocent on the eight
allegations, the Labour Relations Officer should have ruled in his
favour. I also find that the Senior Labour Relations Officer was
wrong in referring to issues which were not before him and more
so
issues on which the Appellant had been found innocent by the Labour
Relations Officer. That being the case, the appeal succeeds
with
costs and it is therefore ordered as follows:






1. That
the appeal succeeds with costs.






2. The Respondent be and is
hereby ordered to reinstate the Appellant to his original position
without loss of salary and benefits
with effect from the date of
dismissal.






3. That
in the event that reinstatement is no longer an option, the
Respondent be and is hereby ordered to pay the Appellant agreed
damages in lieu of reinstatement. If the parties fail to agree on
the quantum of damages then either party can approach this Court
for
the quantification thereof.”











In this Court, it was submitted
by Mr
Gutu,
on behalf of the appellant, that the Labour Court misdirected itself
on the facts to such an extent that the misdirection amounts
to one
at law. However, as Mr
Uriri
submitted on behalf of the respondent, the finding made by the Labour
Court was that the Labour Relations Officer determined the
matter on
facts which were not before him. This finding, he submitted, could
not be said to be grossly unreasonable.







Indeed, Mr Gutu,
while conceding that the allegations upon which the matter was
decided were not put in the letter seeking authority to dismiss the
respondent, submitted that the issues of the missing $300 000. 00 and
the missing Northwood stands register constituted “any act,
conduct
or omission inconsistent with the fulfillment of the express or
implied conditions of (the respondent’s) contract” of
employment
in terms of s 3(1)(a) of the Regulations.







However, even if that submission
was to be accepted, it is clear that the specific act or acts relied
upon would have to be alleged
by the appellant in the letter setting
out its grounds for seeking authority to dismiss the respondent.
That much is clear from
the case authorities. See for example,
Standard Chartered Bank
Zimbabwe v Matsika

1996 (1) ZLR 123 (S) at p 130 C-F.







The appellant sought to place
reliance on
Karembera v
Mvurwi Rural Council

1999 (1) ZLR 327 (S). However, the ratio
decidendi
of that case is that where a suspension has lapsed by reason of the
failure of an employer to apply forthwith for authority to terminate
the employment of an employee in terms of Statutory Instrument
371/85, the employer, in a subsequent application seeking authority
to dismiss the employee, is not precluded from raising new grounds in
the letter seeking dismissal notwithstanding that those grounds
were
not contained in the previous letter.







In
the present matter, the appellant sought refuge in the fact that the
suspension had lapsed by reason of the failure of the appellant
to
apply forthwith for authority to dismiss the respondent. Because of
this, so it was argued, the appellant was entitled to rely
on new
grounds not set out in the letter of September 2001.







The difficulty that the appellant
faces is, as Mr
Gutu
correctly conceded,
that it did not withdraw the first letter of application and submit a
fresh letter setting out the new grounds
on which it sought to rely.
That course was open to the appellant but not adopted.






Accordingly,
the appellant having in his letter to the Labour Relations Officer,
placed reliance on specific grounds for the dismissal
of the
respondent, was obliged to rely on those grounds at the hearing and
the Labour Court correctly found that the Labour Relations
Officer
had wrongly determined the matter on issues that were not before him.
The appeal was, therefore, devoid of merit.





SANDURA
JA : I agree.



GWAUNZA JA : I agree.



Gutu & Chikowero,
appellant's legal practitioners


Honey
& Blanckenberg
,
respondent's legal practitioners