No. SC 39/04
Appeal No. 126/02
NGOSHI CHIROODZA v
MUNICIPALITY OF CHITUNGWIZA
CHAIRMAN, LOCAL GOVERNMENT BOARD
COURT OF ZIMBABWE
CHEDA JA & GWAUNZA JA
FEBRUARY 19 & JUNE 17, 2004
Bhatasara, for the
Mamvura, for the first
appearance for the second respondent
CHEDA JA: The first
respondent is the Municipality of Chitungwiza, established in terms
of the Urban Councils Act [Chapter 29:15]
(the Act). The second respondent is the chairman of the Local
Government Board. The appellant was employed by the first
respondent as its town clerk.
In or about June 1986 the
appellant was seconded by the Ministry of Local Government, Urban and
Rural Development as treasurer to
the first respondent. In November
1987 the appellant was appointed to the post of chief executive
officer. His conditions of
service were stated in the letter of
appointment. Part 6 of these conditions related to
disciplinary proceedings in the event
of an alleged act of
misconduct. These conditions related to the period when the first
respondent was a Town Council, before it
gained Municipal status.
When the first respondent became a Municipality, the appellant became
the town clerk. His appointment
conditions then were different from
the Code of Conduct and were now in terms of s 139 of the Act.
22 April 1999 the appellant was handed a letter of the same date
from the mayor of the first respondent, advising him of his
suspension from employment. The letter said the appellant was being
suspended on seven grounds, tabulated in the letter.
complete disregard of Council procedures in handling of staff
to administer the staff loan account and taking a leading rôle to
failure to adhere to budgetary procedures;
misleading and/or failure to advise Council on matters within your
means to do so;
of insubordination; and
failure to properly manage property of Council.
letter went on to state:
above are some of the charges which are going to be investigated
about yourself. In order to facilitate these investigations,
hereby invoke paragraph (a) of subsection (3) of
section 139 of (the Act). You are hereby suspended forthwith.
take note that this suspension shall be without salary in terms of
section 139(5)(b) of the Act. However, Council will
the allowance, if any, to be paid to you while on suspension.
Please surrender your official car keys to the acting chamber
secretary who shall make arrangements to drive you home.
compliance with s 139(2) of the Act, a letter was sent to the
chairman of the Local Government Board. The chairman refers
letter in his correspondence with the first respondents mayor.
reads as follows:
Council shall not discharge a town clerk unless the discharge has
been approved by the Local Government Board.
the day he received the letter of suspension the appellant responded
in writing and said he was surprised about the allegations
misconduct as none of them had been raised with him before.
On 9 August 1999 the
chairperson of the ad hoc
committee appointed to look into the suspension wrote to the
appellants legal practitioners, Messrs Coghlan, Welsh & Guest,
inviting them to appear at the Council Chamber on 16 August 1999
to present their clients case before the ad hoc
committee. The charges against the appellant were set out in detail
in that letter. There were now seventeen charges with details
The record shows that no less
than twenty-six meetings were held by the ad hoc
committee to deliberate on the suspension of the appellant, and that
in these meetings the appellant appeared with his legal practitioner,
Following these meetings the
committee recommended that the appellant be dismissed from employment
after being found guilty of some, but not all, of the alleged
misconduct. Where there was no evidence on a particular act of
misconduct the appellant was found not guilty.
chairman of the Local Government Board was informed of the
recommended dismissal and replied, advising of the Boards approval
of the dismissal.
appellant then took the matter to the High Court on review. His
application was dismissed with costs.
The appellant now appeals against
this decision. The following are the appellants grounds of
1. The learned judge erred in
concluding that there was compliance with the provisions of
section 139(3)(b) of (the Act) in the
suspension of the
applicant (now the appellant) and subsequent reporting of the matter
to the Executive Committee by the Executive
2. The learned judge erred in
concluding that there was no bias on (the part of) the members of the
committee that investigated the applicant.
learned judge erred in holding that the applicant had been granted a
learned judge erred in concluding that the persons who adjudicated
over the applicants matter had properly applied their
minds to the
issues at hand.
learned judge erred in failing to hold that the decisions of the
respondents were so grossly unreasonable that no reasonable
who had applied his mind to the question to be decided would have
arrived at the decision arrived at.
The first ground of appeal is
meaningless, as it does not state in what way the provisions of the
Act were not complied with.
The mayor suspended the appellant by
letter and advised him of the nature of the allegations of
misconduct. The mayor also advised
the chairman of the Local
Government Board. A special meeting of the Council was called and
the mayor reported on the suspension.
An ad hoc
committee was appointed to look into the matter. It reported back
its findings and recommendations, after which authority to dismiss
the appellant was sought and obtained from the Local Government
Board. The appellant has not stated what was not complied with.
The second ground is a general
allegation with no details. The ad hoc
committee was appointed by the Council. The appellant and his legal
practitioner attended the hearing. Nothing in the minutes
any bias on the part of any of the councillors.
The same applies to the third
ground of appeal. The ad hoc
committee went through each of the seventeen allegations and the
appellant was given an opportunity to respond. I do not see how
they can be said to have failed to apply their minds to the issues at
his heads of argument, the appellant suggests that on being suspended
he should have been notified of the charges against him.
shows that this was done. When the details of the allegations were
advised for purposes of the hearing no response
was provided, but the
appellant and his legal practitioner attended the hearing.
The record shows that all
through the hearing, when the allegations were dealt with, the
appellant did not give any reply at all.
He remained quiet while
his legal practitioner took it upon himself to answer instead of the
appellant. In his replies the legal
practitioner did not give any
relevant replies to the allegations but took the opportunity to argue
that the details of the allegations
and documents to support the
allegations were not sent to him or his client. The ad hoc
committee chairman replied that these had been sent to the legal
practitioner. Despite his denial, the legal practitioner later
conceded that they had in fact been sent and he had not taken the
time to go through them.
fear expressed by some councillors on the possibility of some
documents being destroyed cannot be said to be an indication of
After all, the appellant was found not guilty on those allegations
where there was no evidence.
minutes show that no direct replies to the allegations of misconduct
were placed on record by either the appellant or his legal
practitioner. Mr Kanongovere did not give any helpful answers
but chose to raise objections and queries, leaving the real
example, when the inquiry started, the appellants legal
practitioner raised complaints about not receiving the documents
supported the allegations, only to concede later that he had received
the meeting of 24 August 1999, when the chairman said they
wanted to hear the appellants responses to the allegations,
the legal practitioner who replied and said that, in terms of the
law, the committee raised allegations against his client
and as such
the committee was obliged to provide the necessary documents so that
they could defend themselves against the allegations.
He said the
committee should go through the allegations paragraph by paragraph
and substantiate them.
the allegations of awarding contracts to Tonde Screen Printers
without declaring his interest, Mr Kanongovere said whether
not his client declared his interest was secondary, adding that the
question was whether his client awarded the contracts to Tonde
Printers. Mr Kanongovere went on to say that his client was
neither a director nor a partner of Tonde Screen Printers
and did not
involve himself in the operations of the company. He further asked
how his client had committed an act of misconduct,
as the conditions
of service referred to above did not apply to his client. There
was, therefore, no direct reply or denial of
regard to the fact that the appellant had filled in and signed the
application for a name search, Mr Kanongovere said
request that the witness be called to give evidence. When the
chairman repeated that they wanted to hear the appellants
responses, Mr Kanongovere said they would be more comfortable to
have information since the hearing was similar to a court.
on to list payments by cheques to Tonde Screen Printers, which were
not signed by his client.
about the appellant signing loan cheques for himself, Mr Kanongovere
replied that his client only counter-signed cheques
and was not the
main signatory to the cheques. He went on to say that if his client
went through the proper channels in applying
for the loan and it was
approved and he only counter-signed the cheques, there was no
misdemeanour on the part of his client.
the issue of appointing GMP Real Estate as evaluators without a
written contract, Mr Kanongovere said they wanted to
question the source on how his client was a friend of Mr Gute of
GMP Real Estate. Again, no direct answer was
was no denial or indication whether the appellant did or did not do
end result was that the appellant never really gave direct responses
to the allegations against him. Instead of indicating
there were queries raised and in a number of counts there were no
At the end of the hearings, the
committee found the appellant guilty on some, but not all, of the
The court a quo
had all this evidence before it. After hearing the submissions from
both parties, the court a quo
could not find anything to support the allegation that the decision
of the ad hoc
committee was so outrageous in its defiance of logic or accepted
standards that no reasonable person who had applied his mind to
issues to be decided would have arrived at that decision.
submitted that there was no fair hearing and referred to the letter
of 18 January 2000 as indicating that the Local Government
approved the dismissal before the hearing. This was misleading, as
the letter deals with the whole process followed by the
respondent and the ad hoc
committee. The councillors who are alleged to have made certain
remarks showing bias were not shown to be part of the ad hoc
The allegation of not following
the audi alteram partem
rule is unfounded, as the record shows that the ad hoc
committee went through each allegation in detail but the legal
practitioner answered for his client.
The appellant failed to prove
any of the established grounds for setting aside a decision on
review. I therefore see no fault
on the part of the court a quo
in dismissing the application.
the application for an order for reinstatement, this certainly cannot
be done by a court on review. It is an inappropriate
court can only review the proceedings and either confirm or set them
I agree with the court a quos
conclusion and see no merit in the appeal.
appeal is dismissed with costs.
appellant's legal practitioners
first respondent's legal practitioners