Court name
Supreme Court of Zimbabwe
Case number
SC 20 of 2006
Civil Appeal 60 of 2004

City of Mutare v Samupindi (60/04) (SC 20 of 2006, Civil Appeal 60 of 2004) [2006] ZWSC 20 (24 September 2006);

Law report citations
Media neutral citation
[2006] ZWSC 20













REPORTABLE
(29)



Judgment No. SC 20/06


Civil
Appeal No. 60/04









CITY OF MUTARE v
AGATHA SAMUPINDI








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA


HARARE,
MARCH 30 & SEPTEMBER 25, 2006








T
Biti
, for the
appellant





V
Mazengero
, for the
respondent









CHEDA
JA: The appellant is a Municipality established in terms of s 4 of
the Urban Councils Act [
Chap
29:15]
the Act”).







The respondent was employed
by the appellant at its treasury department, where her duties
included posting of receipts into the
main computer system.






Following the discovery of
an improper entry against a house belonging to her relative which had
been reversed, she was brought
before a departmental works council
and charged with misconduct, for having-






a) falsified
entries on an account in respect of stand 137, Chikanga thereby
prejudicing Council of $1 200-00; and






b) that
she failed to account for the above- mentioned discrepancy.






The
hearing was conducted on 21 September 1998.






At
this hearing, it is recorded in the minutes as follows:






“On
being asked whether she had anything to say Ms Samupindi admitted
that she was guilty of falsifying the account and begged
for
forgiveness”.










Certain recommendations were then
made, but management maintained that her case deserved a dismissal.





In
her letter to the Executive Mayor dated 7 July 1999 she
complained why she was not merely cautioned as this was her first
mistake after fifteen years of service.


A
report had been submitted to the Executive Mayor, and the Executive
Committee noted that Ms Samupindi had acted in an improper
manner and
had gone out of her way to cover up a debt owed by Mr Samupindi which
had been handed over to the debt collection section.





The
appellant then applied to a labour officer for authority to dismiss
her in terms of S.I. 371 of 1985 s 3(a) and (d).





It
should be noted here that the appellant did have powers to dismiss
the respondent in terms of s 141(2)(b) of the Act.





The
suspension of the respondent and the report to the Executive Mayor
were proper and in compliance with the provisions of s 141
of
that Act.





The
Executive Committee, having noted the report and issues stated in the
report submitted to it, could have simply dismissed the
respondent
from employment.





However,
the appellant chose to seek authority from the Labour Relations
Department to dismiss her.





Section
141(2) of the Act provides a follows:







“(2) Subject to the conditions
of service of the employee concerned, a council or, in the case of a
municipality council, the Executive
Committee of the council, may at
any time discharge an employee other than a senior official -







a) upon notice of not less than
three months; or







b) summarily on the grounds
of misconduct, dishonesty, negligence or any other ground that would
in law justify discharge without
notice.”






There
was, therefore, sufficient cause for the discharge of the respondent
without having to refer the matter to the labour officer.





Once
the matter was referred to the labour officer, his appreciation of
his role appears confused. He accepted, in his determination,
that
“Samupindi did not follow procedures”, then considered mitigatory
factors raised by her legal practitioner, after which
he concluded
that reversal of the entry was an oversight.





If
she did not follow the proper procedures, and/or, there was
negligence on her part, that is covered by subs (2)(b) of
s 141(2)(b)
of the Act. Instead, the labour officer decided to
exercise his discretion in sympathy with her situation. This was not
appropriate
because such a discretion was not within the jurisdiction
of the labour relations officer.





The
discretion of a labour officer was only brought about by the
amendment in Act 17 of 2002 which came into operation after this
case. It provided as follows in s 12B, ss 4:


“12B
(4) In any proceedings before a labour officer, designated agent or
the Labour Court where fairness of the dismissal of an
employee is in
issue, the adjudicating authority shall, in addition to considering
the nature or gravity of any misconduct on the
part of the dismissed
employee, consider whether any mitigation of the misconduct avails to
the extent that would have justified
action other than dismissal,
including the length of the employee’s service, the employees’
previous disciplinary record, the
nature of the employment and any
special personal circumstances of the employee”.










The labour officer, having
taken these factors into account, ordered that the respondent should
be reinstated with effect from the
date of determination of the
matter which is 30 April 1999.





The
next complication to the case was that when the matter was taken on
appeal before the Labour Court, that court did not deal
with the
merits of the case.





Instead
the Labour Court only referred to the issue as follows:






“The
Labour Relations Officers (LRO) who heard the application found the
respondent had not falsified an entry but that the discrepancy
was an
oversight”.











The Labour Court did not itself
make any finding but merely referred to the finding of the labour
relations officer without considering
or assessing its correctness in
view of the evidence in the record.





On
the issue of jurisdiction, the appellant was adequately empowered by
s 141 of the Act to dismiss the respondent from employment.
It
did not dismiss her. Instead, it referred the matter to the labour
relations officer.





If
it had dismissed her, setting aside the labour relations officer’s
determination that would be the end of the matter.





The
referral of the matter to a labour relations officer was not fatal to
the matter either.





At
the time this matter arose, there was provision for a labour
relations officer to entertain matters referred to a labour officer
by the parties.







Section 93 of the Labour
Relations Act [
Cap
28:1
] provided as
follows:







”POWERS OF LABOUR RELATION
OFFICERS







(1) A Labour Relations Officer,
acting on his own initiative to redress any dispute or unfair
practice or upon reference to him
by any person of a dispute or
unfair labour practice –







(a) …;






(b) after giving both parties an
opportunity to submit representations orally or in writing, may make
such determination in respect
to the dispute or unfair labour
practice as may be just in the circumstances; or …






(c)
…;





(d)
…;



Provided
that, where –





(i)
…






(ii) the parties to the dispute
request it and are agreed on the issues in dispute, the Labour
Relations Officer may determine the
dispute or unfair labour practice
or refer it to compulsory arbitration, as the case may be.”






In view of the above, I am of the
view that this was an alternative procedure which the appellant chose
to follow.







It is notable that when the
matter went to the Labour Court the merits were not argued. The
Labour Court did not deal with them but
dealt only with the technical
point that was raised.







There was a need for the Labour
Court to consider the merits instead of only endorsing the labour
officer’s determination.





This
matter started in 1998 which is now more than seven years ago.





It
would have been more appropriate to remit the matter to the Labour
Court to hear the merits and conclude the matter.





However,
it appears no good purpose will be served by doing so since the
record shows clearly that the respondent admitted her wrong
doing,
and the Act shows on s 141 that the appellant was entitled to
dismiss the respondent from employment once the misconduct
was
proved.





There
is no point in referring the matter back to the Labour Court to hear
merits in the circumstances when the respondent’s guilt
is obvious
and admitted.





The
matter has to be brought to finality.





1.
The appeal succeeds and it is granted.


2.
There will be no order as to costs.















CHIDYAUSIKU
CJ: I agree.















GWAUNZA JA: I
agree.











Honey
& Blanckenberg,

appellant's legal practitioners


Muvingi
& Mugadza,

respondent's legal practitioners