Cuthbert Muzavazi v Zimbabwe Electricity Transmission & Distribution Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/70/2021
HARARE, 18 MARCH 2021
CASE NO. LC/H/57/20
AND 18 JUNE 2021
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/70/2021

HARARE, 18 MARCH 2021 				CASE NO. LC/H/57/20

AND 18 JUNE 2021

In the matter between:

CUTHBERT MUZAVAZI						APPELLANT

versus

ZIMBABWE ELECTRICITY TRANSMISSION

& DISTRIBUTION COMPANY (PRIVATE) LIMITED	 RESPONDENT

Before The Honourable Makamure J

For the Appellant			:   Mr B. Magogo (Legal Practitioner)

For the Respondent			: Mr T. S. Manjengwah (Legal Practitioner)

MAKAMURE J:

The appellant, Mr Muzavazi (Muzavazi) is employed by the respondent as a Finance Manager. He was charged with violating s 4 (a) of the National Code of Conduct Statutory Instrument 15/06 (S.I. 15/06) that is, an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract. The allegations for which he was disciplined and convicted for are that:

“During the period between 31st December 2014 and 6th September 2017, you authorized advance payments for orders to Pito Investments (Pvt) Ltd totaling $3 421 214.60 without advance payment guarantees from the respective suppliers, exposing ZETDC to potential losses in the event that the goods were not delivered. Your actions were in breach of your obligations to ensure that the financial control systems put in place by ZETDC were implemented and therefore breached section 45 (a) of the Public Finance Management Act (PFMA) [Chapter 22:19]. Your actions might also have led to the expenditure being made in vain, as to date, goods worth $1 649 118-00 are still to be delivered. This is a breach of your duty to take appropriate effective steps to prevent irregular expenditure, fruitless and wasteful expenditure imposed on you by section 45 (c) of the PFMA.”

After hearing the parties, the Disciplinary Authority found the appellant not guilty for total amount of $3 421 214-60 reasoning that payments with respect to this amount were made by other people. The Disciplinary Authority however found the appellant liable for making advance payment for the sum of US$50 000-00 paid to Enleaver noting that:

“he made an advance payment which was specifically prohibited by the contract under clause 8 (Payment Terms) as the goods had not been delivered and there was no GRN to support the alleged delivery as argued in his defence.”

The Disciplinary Authority penalized the appellant by ordering a 15% deduction from his basic salary for a period of three (3) months.

Aggrieved by the outcome of the proceedings the appellant appeals to this court on the following grounds and I quote:

“1.	The Disciplinary Authority erred in failing to find that the sole advance payment authorized by Appellant was made in terms of the agreed terms between the Respondent and the contractor.

2.	The Disciplinary Authority erred in basing its decision on the terms of a contract that was not extant at the time of the payment.

3.	The Disciplinary Authority erred in soliciting and/or relying on information outside the submissions and documents tendered by the parties without same to comment or make submissions on same.”

Mr Magogo who appeared on behalf of the appellant argued that the payment in question was made in terms of discussions which were minuted and were part of the contract. These minutes are recorded as ‘contract negotiation minutes. Reference was made to page 94 of the record. Thereat appears the following

“Contract Negotiation Minutes of a meeting Held at Electricity Centre ZETDC Harare Between ZETDC and Enleaver Investments (Pvt) Ltd. On 16th November 2010 at 0930 hrs to discuss Contract Implementation Details…”

This document is sub-titled: “This Document Forms Part of the Contract Implementation Agreement.”

That meeting was chaired by a Mr B. Siso (Mr Siso/Siso). Paragraph 2.b of this document provides for modes of payment to be adopted by ZETDC. It states:

“Payment terms shall be any of the following:

Within 30 days after delivery of goods.

Upon presentation of shipping documents.

Against Advance payment guarantee.”

This document was signed on 13 December 2010.

Mr Magogo argued that payment was made upon presentation of shipping documents. This is in terms of the minutes dated 13 December 2010. Mr Magogo drew the court’s attention to a document which appears at page 92 of the record. On that page is shown B. Siso’s signature dated 24 October 2014. The sum of US$50 000-00 which is under scrutiny is recorded as having been paid on 11 November 2014 – this is common cause. Mr Magogo argued that Siso was the engineer responsible. He signed that document before payment was made. The argument continued that his signature must have been made after he (Siso) had made the appropriate checks as the technical person in charge of the products that were to be purchased. It was only after Mr Siso had passed or authorized the documents for payment that the appellant could then, as the finance person, facilitate the payment in question. This, averred Mr Magogo is exactly what the appellant did. He could not have made payment without the appropriate permission from the relevant department. Mr Magogo submitted that under the circumstances of this case the appellant conducted himself appropriately. He cannot be blamed for a fault which was squarely in the hands of Siso or the Engineering Department when he is a finance person. It is for that reason, Mr Magogo submitted, that the Disciplinary Authority fell into error when it found that the appellant was to blame under these circumstances. Further the Disciplinary Authority made a specific finding that (p 21):

“Regarding the USD 50 000-00 payment to Enleaver, he made an advance payment which was specifically prohibited by the Contract and clause 8 (Payment Terns) as the goods had not been delivered and there was no GRN. To support the alleged delivery as argued in his defence.”

It is common cause that the payment in question was done in November 2014. From the record, the minutes of 13 December 2010 prescribed the alternative ways which payment could be made. Pages 78 to 86 contain the signed contract between the parties. This was signed in June 2015 that is, between 6th and 15th June 2015, as various signatures for both parties were appended on different dates. This was long after 10 November 2014 when payment of the $50 000-00 was done. It was Mr Magogo’s submission that, in view of the evidence and facts which are clearly in favour of the appellant, the decision of the Disciplinary Authority has to be vacated. This was the appellant’s case in support of the first two grounds of appeal. With respect to the third ground Mr Magogo submitted that the Disciplinary Authority tried to get more information from outside what was tendered by the parties. Mr Magogo however, pointed out to the court that while this may have been inappropriate, he did not find anything of substance which was adverse to the appellant’s case. Mr Magogo referred the court to authority for which the court is grateful. Some of the authorities cited on behalf of the appellant are Reserve Bank of Zimbabwe v Granger and Anor SC 34/2001 TM Supermarket v Mangwiro SC 57/13, Tichazivana v Trojan Nickel Mine Bindura SC 56/03, ZINWA v Mwoyomutsva SC 28/15.

Mr Manjengwah who appeared on behalf of the respondent, in his heads argued that the appeal relates to findings of fact and not to law. Mr Manjengwah submitted that under the circumstances the appeal should be struck off the roll.

On the merits Mr Manjengwah submitted that the appellant violated the provisions of paragraph 45 (a) and (c) of the P.F.M.A. The appellant, Mr Manjengwah argued, failed in his duty to avoid fruitless and wasteful expenditure. Payment to Enleaver was made before goods were delivered. Mr Manjengwah submitted that the appellant ought to have satisfied himself that the internal control system had been implemented before payment was done. On the contract which the Disciplinary Authority found to have bound the appellant, Mr Manjengwah graciously conceded that the contract which was signed by both parties (in June 2015) was signed after the payment in question had already been made. As such the appellant cannot be held to have violated provisions of a contract which came into effect after the payment had already been done. Payment was done in terms of the minutes which have been referred to above.

Mr Manjengwah argued at length that the appellant paid for the wrong product. According to Mr Manjengwah it was the appellant’s duty to ensure that the appropriate product would be delivered. The appellant, so Mr Manjengwah argued, did not scrutinize the documents properly.

Mr Manjengwah submitted that the appellant’s conduct was inconsistent with the express or implied terms of his contract of employment. That being the case Mr Manjengwah submitted that the decision of the Disciplinary Authority should be upheld. Once again I am grateful to Mr Manjengwah for authorities cited.

In response Mr Magogo submitted that the concession made on behalf of the respondent that the contract between the parties, clauses, of which the Disciplinary Authority relied, on could not bind the appellant as it came into effect later, was fatal and ‘does violence’ to the decision under consideration. The reliance on that contract was erroneous as it came into effect long after the payment had been done. Further such payment was made in terms of the mode of payment agreed to by the parties. This Mr Magogo submitted, means that the decision of the Disciplinary Authority cannot stand.

On the question of a wrong product being paid for, Mr Magogo submitted that this was not the appellant’s duty. While he may be a finance person, he is a layperson on engineering matters. Mr Magogo argued that is precisely why he was not charged for paying for the wrong product.

Mr Magogo forcefully submitted that he decision of the Disciplinary Authority cannot stand.

It is common cause that the appellant paid the amount of US$50 000-00 without there being payment guarantees. This payment was done in November 2014 in terms of the minutes between the parties dated 13 December 2010. Those minutes prescribed that payment could be done in terms of any one of three (3) options. Appellant used the option of payment upon presentation of shipping documents. The Disciplinary Authority made a finding that the appellant had violated Clause (8) of a contract which parties signed in 2015. This was long after payment had been done. The contract has, as its one of its appendices, minutes of the contract negotiation meeting held on 16 November 2010. The contract does not say that it invalidated the contract minutes of December 2010 retrospectively. In any case Mr Manjengwah conceded to the fact that the contract came into effect after the payment under consideration had already been made. This is therefore not a matter for discussion. It is common cause.

Both parties referred me to ZINWA v Mwoyomutsva SC 28/15 where the Supreme Court stated that:

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it: or that the decision was clearly wrong.”

If reference to clause 8 (Payment Terms) is removed from the Disciplinary Authority’s decision, then there is no question of appellant’s guilt to talk about. I therefore agree with

Mr Magogo that the concession and the fact that the contract was signed long after the appellant had made payment, has done some violence to the decision by the Disciplinary Authority. This court must therefore interfere with its findings. In Jainos Zvokusekwa v Bikita Rural District Council SC 44/2015 the Supreme Court stated that:

“What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner. It is clear that an appellant is criticizing a finding that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper… If it is evident that the gravamen is that the inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law…”

As indicated earlier on, the removal of ‘Clause 8 in the determination gives a different meaning to the determination. This, with the fact that payment was made long before the contract containing clause 8 was in place, means that the decision of the committee cannot stand. Further the appellant acted upon the authority of a person who was professionally qualified before any payment could be made. He therefore conducted himself appropriately. His conduct cannot be said to have been inconsistent with the fulfilment of the express or implied conditions of his contract.

In view of the foregoing, the appeal succeeds. Accordingly, it is ordered that appeal be and is hereby granted.

In the prayer, the appellant prays for costs on the attorney and client scale. However, a case for costs on the higher scale has not been made. For this reason, the order will reflect costs on the ordinary scale.

The decision by the Disciplinary Authority be and is hereby set aside and replaced by the following:

“1.	The employee be and is hereby acquitted.

2.	The employee be and is hereby reinstated to his employment without loss of any

portion of his salary and benefits with effect from May 2020.

3.	The Respondent pays the costs of suit on the ordinary scale.”

Makuwaza  Magogo Attorneys, Appellant’s Legal Practitioners

Wintertons, Respondent’s Legal Practitioners