Andrew Dhlakama v Secretary for Education, Sport, Arts and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/487/13
HELD AT HARARE 26TH SEPTEMBER 2013
CASE NO LC/H/264/12
JUDGEMENT NO LC/H/487/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/487/13

HELD AT HARARE 26TH SEPTEMBER 2013	    CASE NO LC/H/264/12

AND 11 OCTOBER 2013

In the matter between:-

ANDREW DHLAKAMA			-				Appellant

And

SECRETARY FOR EDUCATION,

SPORT, ARTS AND CULTURE		-				Respondent

Before The Honourable L. Hove, Judge

The Honourable L.M. Murasi, Judge

For Appellant	:	Advocate J. Wood (Legal Practitioner)

For Respondent 	:	Ms. F. Kuipa (Legal Practitioner)

MURASI, J.

Appellant was Headmaster of Borrowdale Primary School having taken over in November 2009,  He was charged with several counts of a misconduct and the Disciplinary Authority deemed it fit to impose a penalty of dismissal.  The Disciplinary Committee had however recommended that he be fined USD200.00 to be deducted in two instalments and further that he be warned and cautioned.  He is dissatisfied with both the conviction and penalty and seeks redress in this Court.

The basis of Appellant’s arguments is that as Head, he did not have overall control of the School Development Association (SDA), its operations or its funds and that his role was very limited.  He alleges that the SDA established in terms of the Education (School Development Association) (Government Schools) Regulations, 1998 (Statutory Instrument 379 of 1998) had sole responsibility for the oversight of its activities.  He further states that his role was advisory in nature.

Respondent, on the other hand, avers that Appellant was a civil servant governed by the Public Service Regulations, Statutory Instrument 1 of 2000 and the relevant Circulars.  As Head of School, Appellant, in terms of section 3.1.1. of that Ministry’s Policy Circular P 70, was regarded as a sub-accounting officer responsible for ensuring adherence to Treasury Instructions.  As ex-officio member of the SDA in terms of section 10(1)(b) of SI 379/1998, he was to ensure that the interests and policies of the Ministry were upheld.

The Court will now consider the charges levelled against Appellant.  He states that, as regards the allegation that he was charging unapproved levies, he assumed that the levy had been approved.  His evidence is that when he took over, the levy was already being charged and collected and he did not think it necessary to check whether it had been approved.  When asked during the hearing whether he had confirmed that it had in fact been approved, he replied in the negative.  The Audit that brought to light these allegations was carried out in October, 2010, some eleven (11) months after Appellant had taken over as Head.  Infact, in terms of the Statutory Instrument, a levy approved by the Ministry only runs for twelve (12) months and authority has to be sought to continue levying the parents.  Assuming that Appellant is correct that he “assumed” that the levy had been approved, there was still need to seek a new approval in year 2010 when he was now Head.  In any event, there is a statutory requirement for an annual general meeting to be held by April in each year.  Where no such meeting of the SDA is held, the Head is supposed to alert the Ministry officials so that this meeting is held.  The record and submissions by Appellant show that this meeting was not held and Appellant was at pains to explain this away.  Appellant did not regularise the levy issue in terms of statutory requirements and therefore the levying of the USD200,00 was not approved.  Appellant’s submissions on this point must fail.

The next issue concerns Appellant’s alleged failure to properly maintain a security register contrary to Treasury Instructions.  It should be pointed out at the outset that the SDA’s existence, according to the record, is to augment school activities.  When the SDA purchases any items, these are handed over to the school and no longer belong to the SDA.  The Head assumes control of the items.  It would appear that the security register is a requirement in terms of Treasury Instruction and the latter instrument binds civil servants and not members of the SDA.  From the evidence, it became and was the duty of the Appellant to maintain a security register in order to safeguard the property purchased by the SDA for the school.  Appellant’s argument on this issue is therefore found to be without basis.

On the allegation that Appellant failed to ensure that there was a cashbook to operate jointly with the computerised system, Appellant states that the regulations do not require a manual cashbook to be maintained.  He further states that it was not the function of the Head to keep SDA accounts but however admitted that the school maintained cashbooks for “GPF” and “SSF” accounts.  The reason for not maintaining a cashbook for SDA funds is therefore found wanting and remains unexplained.  Again, Appellant’s submissions on this issue must fail.

The next issue involves the shortfall of an amount of USD14 952,46.  The allegation is that the period covered is from January 2009 to October 2010.  The Hearing Committee did not pursue this matter to its logical conclusion.  The Court is of the view that the Committee should have at least separated this whole amount and come up with a figure that is attributable to Appellant.  A look at the audit report, specifically on page 24 of the record shows that the amounts begin in January 2009 up to December 2009 and are only separated by the beginning of the year in January 2010.  There was no attempt to close off the books on the date Appellant took over as Head.  The figure of

USD14 952,46 is therefore cumulative from January 2009 when Appellant was obviously not yet in charge.  It is the Court’s view that the Hearing Committee erred in finding the Appellant guilty on this charge without verifying what figure was attributable to his lack of management of the SDA funds.  The Court finds that this charge was not proved against Appellant.

As regards the issue of the use of unofficial receipt books, Appellant’s defence does not hold water as he was supposed to check on the veracity of the receipts issued by that office in his capacity as sub-accounting officer which duties have been referred to earlier on in this judgment.

In the final analysis, the Court finds that the appeal fails on the four (4) charges but succeed on the charge relating to the loss of USD14 952,46.

The Court turns to the issue of the penalty visited upon the Appellant.  The differing views of the Disciplinary Authority have been alluded to earlier on in this judgment.

The Court is mindful of the fact that it is not called upon to re-assess the case and come up to a conclusion.  The Court is merely being called upon to scrutinise the decision to ensure that it is reasonable in the circumstances.  In considering whether the penalty imposed on Appellant was a reasonable one in the circumstances, the Court gets guidance from dicta in Attorney General Vs Howman 1998 (2) ZLR 402(SC).  In that case the Court stated as follows:

“The principles justifying interference by an Appellate Court with the exercise of an original discretion are firmly entrenched.  If the discretion has been exercised on judicial grounds and for sound reasons, that is without caprice or bias or the application of the wrong principles, an Appellate Court will not interfere and substitute its own decision.  It is not enough that it considers that if it had been in the position of the lower court, that it would have taken a different course.”

Further in Circle Cement (Pvt) Limited Vs Chipo Nyawasha SC 100/2003, the Court stated thus:-

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

A look at the record shows that the Disciplinary Committee had recommended a fine and a warning.  Appellant had been Deputy Head before being elevated to the post of Head in November, 2009.  Appellant’s account of how he had discovered the anomalies and called for an Audit has not been controverted in evidence.  His allegation that he made a report when he discovered the shenanigans of the Bursars has not been disproved.  Even though his explanations of not supervising the SDA accounts are spurious, it cannot be said that this was a matter befitting a dismissal.  The Court takes into account the fact that the charge where USD14 952,46 was unaccounted for cannot wholly be attributed to Appellant.  It is the Court’s view that the Disciplinary Authority erred in not finding that Appellant could be assigned work which did not require that he participate in administrative work.  There has been no evidence to show that he had failed when he was employed in the capacity of Deputy Head.  In the result, the Court finds that the Disciplinary Authority acted unreasonably in having a serious view of the offences committed by the Appellant.  The penalty of dismissal should be set aside.

It is ordered as follows:

The appeal on the allegation of failure to account for USD14 952,46 is allowed.

The appeal relating to:

Charging unapproved levy;

Failure to maintain the security items register;

Use of unofficial receipt books;

Failure to maintain manual cash book;

are hereby dismissed.

The penalty of dismissal imposed on Appellant by the Disciplinary Authority is hereby set aside and substituted with the following:

“Member is demoted to the grade of Deputy Head.”

........................

L.M. MURASI

JUDGE

........................  I agree

L. HOVE

JUDGE

Mupawaenda and Musara – Appellant’s Legal Practitioners

Civil Division of the Attorney-General’s Office – Respondent’s Legal Practitioners