Court name
Supreme Court of Zimbabwe
Case number
SC 73 of 2005
Civil Appeal 238 of 2004
Case name
City of Harare v Rusvingo (38/04)
Law report citations
Media neutral citation
[2006] ZWSC 73













REPORTABLE
(72)



Judgment No. SC. 73/05


Civil
Appeal No. 238/04









CITY
OF HARARE v SILAS LUTHINGO
RUSVINGO








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, MALABA JA & GWAUNZA JA


HARARE,
MAY 5, 2005 & JANUARY 25, 2006








L
Uriri
, for the appellant





H
Simpson
, for the respondent





MALABA
JA: On 19 July 2002 the respondent, who was employed by the
appellant as a principal administrative officer (finance)
in the
Department of Housing and Community Services, was found guilty of
conduct unbecoming of an employee under clause 18(c)
of the
Collective Agreement of the Harare Municipality Undertaking (General
Conditions of Service), Statutory Instrument 66 of 1992
(“the
Code”). The penalty imposed on him was that he be demoted from
Grade 5 to Grade 7, transferred to another department
and
issued with a final warning.






On
30 June 2004 the High Court set aside the decision of the
appellant’s Review Board and ordered that the respondent be
reinstated into his position as a principal administrative officer
(finance). Each party was ordered to pay its own costs. This
appeal is against the judgment of the High Court.





The
facts of the case are these. On 22 November 2000 the
respondent was summoned to attend a meeting with the director and
acting deputy director of Housing and Community Services. At the
meeting the acting deputy director complained of the respondent’s
lack of commitment to duty. The allegations against him were that
he had absented himself from work on 15 November 2000 and
failed
to attend a meeting with the Finance Committee. It was also alleged
that on 20 November 2000 the respondent had failed
to attend a
meeting with the director.





After
the meeting, the director wrote a letter of reprimand to the
respondent on 23 November 2000. The letter read:







“LACK OF COMMITMENT TO DUTY





I
refer to the meeting held in my office on 22 November 2000, and
wish to reiterate the concerns raised regarding your apparent
lack of
commitment to duty.





On
the 15th November 2000 I had to send your junior to
attend the Finance Committee meeting which you were supposed to
attend, because you
were not available.





On
20th November 2000 you were absent from duty for no
valid reason. You were asked to attend a pre-meeting on
22nd November 2000 with me, to prepare for the
Finance Committee meeting which was to be held the same day. You
did not attend
that pre-meeting, instead you attended to your private
business.





It
appeared that when I spoke to you about your lack of commitment to
your duties, you did not show any remorse. You as a senior
person
in the Department, I expect you to set a good example to your
subordinates.





If
you do not improve in your work performance, disciplinary action will
be taken against you.”






On
27 November 2000 the respondent dismissed the reprimand in a
letter written in language that was intentionally insulting
to and
disrespectful of his superiors at work. He described the
presentation of the complaint of lack of commitment to duty made
against him to the director by the acting director as “ranting and
raving” and “barking like a dog”. He poured scorn on
the
decision by the director to reprimand him.





As
a result of the coarse invectives used by the respondent in his
letter, he was charged with the offence of conduct unbecoming
of an
employee under clause 18(c) of the Code.





On
7 August 2001 he appeared before the Inquiries Committee, which
heard evidence from the department’s representative and
the
respondent and determined that the language used in the letter of
27 November 2000 was insulting to and disrespectful of
the
respondent’s superiors and constituted conduct unbecoming of
an employee. The Inquiries Committee made its report to
the
Executive Committee and recommended as a possible penalty that the
respondent be demoted from Grade 5 to Grade 7, transferred
to another department and given a final warning.





After
consideration of the report of the Inquiries Committee on the
findings of fact and recommendations on the possible penalty,
the
Executive Committee also came to the conclusion that the respondent
was guilty of conduct unbecoming of an employee in using
insulting
and disrespectful language addressed to his superiors at work. It
imposed the penalty recommended by the Inquiries Committee.





A
Board which reviewed the respondent’s case on 9 June 2002 also
came to the same conclusion.





On
29 November 2002 the respondent took the decision of the
appellant to the High Court on review. The learned Judge who
heard
the application for review also found as a fact that the language
used by the respondent in the letter of 27 November
2000 was
insulting to and disrespectful of his superiors. She also found as
a fact that his use of such language constituted conduct
unbecoming
of an employee. She, however, set aside the decision on the ground
of gross procedural irregularities, in that the Executive
Committee
had conducted an inquiry into the allegations of misconduct levelled
against the respondent without him having been first
suspended from
duty by the head of department, as required by s 141(4) of the
Urban Councils Act [
Chapter 29:15]
(“the Act”).





It
is common cause that the respondent was not suspended from duty when
the disciplinary proceedings were instituted against him.
Mr 
Uriri,
for the appellant, argued on appeal that the learned Judge
nonetheless misdirected herself because the procedure adopted by the
appellant is provided for under s 141(2)(b) of the Act.





Sections
141(2), 141(4), 141(5) and 141(6) of the Act provide as follows:






“141 (2) Subject to the
conditions of service of the employee concerned, a council or, in the
case of a municipal 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 ground of misconduct, dishonesty, negligence or any other
ground that would in law justify discharge without
notice.






(3) …





(4) If
it appears to a head of department that any employee of the council
who is not a senior official has been guilty of such
conduct that it
is desirable that that employee should not be permitted to carry on
his work, he –






(a) may suspend the employee from
office and require him forthwith to leave his place of work; and





(b) shall
forthwith notify the town clerk or secretary of the council, as the
case may be, in writing, of such suspension.






(5) Upon
receipt of a notification of suspension in terms of subsection (4),
the town clerk or secretary, as the case may be,
shall cause the
suspension to be reported at the first opportunity to –






(a) the executive committee of
the council in the case of a municipality; or





(b) the
council, in any other case.






(6) Where
an executive committee or a council has received a report of a
suspension in terms of subsection (5), the executive
committee
or the council shall without delay –






(a) conduct an inquiry or cause
an inquiry to be conducted into the circumstances of the suspension;
and





(b) after
considering the results of the inquiry, decide whether or not –






(i) to lift the suspension; or





(ii) to
do any one or more of the following –






A. reprimand the employee
concerned;





B. reduce
the salary or any allowance payable to the employee concerned;





C. transfer
the employee concerned to another post or grade, the salary of which
is less than that received by him at the date of
the imposition of
the penalty;





D. impose
a fine not exceeding three thousand dollars or three months salary,
which fine may be recovered by deductions from the salary
of the
employee concerned;





E. subject
to subsection (3), discharge the employee concerned.”





It
is clear that two different procedures of dealing with allegations of
misconduct levelled against the employee are envisaged
under
ss 141(2)(b) and 141(4) of the Act. Although the procedure
under s 141(2)(b) of the Act involves summary discharge
of an
employee where allegations of misconduct are of a serious nature, it
does not exclude the holding of an inquiry considering
the
applicability of the principles of natural justice to decisions of
public bodies such as the appellant. There was nothing procedurally
irregular in the appellant having an inquiry carried out into the
allegations of misconduct levelled against the respondent without
him
having been suspended by the head of the department and after
discovering that the degree of seriousness of the misconduct did
not
justify summary discharge imposing some other appropriate penalty.
The fact that the respondent was not suspended suggests
that the head
of the department did not consider that he was guilty of such conduct
that it was desirable that the respondent should
not be permitted to
carry on his work.





In
The Municipality of
Chinhoyi v Mupandira

S-146-96 the employee was not suspended pending the inquiry into the
allegations of misconduct levelled against him. Referring
to
ss 90(10) and 90(13), which are predecessors to ss 141(2)
and 141(4) of the Act, McNALLY  JA, at pp 5-6
of the
cyclostyled judgment, said:






“Where
an employee was suspended
pending
an enquiry
(my
underlining) then the decision to suspend must be that of the
relevant senior official not that of the Council. And that
suspension
must be followed by the enquiry required by subs (13).






…





In
the present case there was no question of the employee being
suspended pending an enquiry. The enquiry was conducted and
concluded
without his being suspended.





…





A
full scale enquiry was launched. He was called in by a committee of
senior officials and given an opportunity to explain his
conduct.
The officials were not satisfied with his explanation. They
recommended to the Municipality on 26 October 1994
that he be
summarily dismissed ‘in terms of paragraph (b) of
subsection (7) of section 90 of the Urban Councils
Act’.





The
Municipality resolved on 1 November 1994 to dismiss him
summarily. Up to that point everything was being done correctly
in
terms of s 90(7).”





The
only difference between
Mupandira’s
case
supra
and that of the respondent is that instead of recommending that he be
summarily dismissed the Inquiries Committee recommended the
imposition of a less severe penalty on the ground that the misconduct
the respondent was guilty of was not so serious as to justify
dismissal. The Executive Committee had a discretion under s 141(2)
not to dismiss the respondent from employment for the misconduct
it
found him guilty of.





The
respondent relied on two decisions of the High Court in
Kimbini
and Ors v City of Mutare

HH-116-2000 and
Mudziri
v City of Harare

HH-83-2001. The decisions in both cases do not advance his case
because the appellants in those cases had been properly suspended
from work by heads of departments.





The
appeal is therefore allowed with costs. The order of the court
a quo
is set aside and substituted the following order –





“The
application is dismissed with costs”.














SANDURA
JA: I agree.














GWAUNZA
JA: I agree.














Honey
& Blanckenberg

appellant's legal practitioners


Manase
& Manase
,
respondent's legal practitioners