Mehluli Tshuma & 4 Others v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/773/16
HELD AT HARARE, 13th OCTOBER, 2015
CASE NO. LC/H/353/13
& 2 DECEMBER 2016
JUDGMENT NO. LC/H/773/16
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IN THE LABOUR COURT OF ZIMBABWE  	      JUDGMENT NO. LC/H/773/16

HELD AT HARARE, 13th OCTOBER, 2015                  CASE NO. LC/H/353/13

& 2 DECEMBER 2016

In the matter between:-

MEHLULI TSHUMA & 4 OTHERS	-		Appellants

And

PUBLIC SERVICE COMMISSION	-		Respondent

Before the Honourables Musariri J,

Chivizhe J,

Manyangadze J.

For Appellants   :	  Mr W. Nyamakura (Legal Practitioner)

For Respondent:	 Mrs O. Zvedi (Civil Division)

MANYANGADZE, J;

This is an appeal against the determination of the respondent’s Disciplinary Authority, in terms of which the appellants were found guilty of misconduct and dismissed from employment.

The factual background to this matter can be summarised as follows.

The appellants were employed by the respondent as Public Prosecutors, and worked in the office of the Attorney General, Criminal Division. That was before the Criminal Division was removed from the Attorney General’s Office to form the stand alone Prosecutor General’s Office.

The appellants were members of the Zimbabwe Law Officers Association (ZILOA), an organisation formed in 2008, to advance the interests of law officers in the Attorney General’s Office. The appellants were office bearers in the Executive Committee of ZILOA.  They were elected into the Executive Committee at ZILOA’s 2011 Annual General Meeting.

Thereafter, ZILOA engaged officers in the Attorney General’s Office and the Ministry of Justice, Legal and Parliamentary Affairs, over their conditions of service. In particular, there was disgruntlement emanating from the disparity in the salaries of Magistrates, on the one hand, and Public Prosecutors and Law Officers on the other hand. There were a series of meetings and correspondences, all in an endeavour to redress the grievances raised by ZILOA. The meetings failed to resolve the issues. On 19th September 2011, a Notice of Intention to go on an Industrial Action was served on the respondent. This was copied to various Government Departments and Offices which included those of Attorney General, Chief Secretary to the President and Cabinet, Secretary for Justice and Judicial Service Commission.

On 4th October, 2011, the Public Prosecutors and Law Officers embarked on a collective job action, which persisted until 15th October 2011.

As a consequence of the industrial action, the appellants were charged with misconduct, in terms of the Public Service Regulations, Statutory Instrument 1 of 2000 (the Regulations). They faced three counts of misconduct. These were;

Contravening paragraph 23 of the First Schedule of the Regulations – engaging in an illegal collective job action by inciting public prosecutors and law officers to engage in the illegal collective job action.

Contravening paragraph 6 of the First Schedule to the Regulations-exhibiting unbecoming or indecorous behaviour by making utterances to the effect that the Attorney General, his deputies and other bosses were not their employer

Contravening paragraph 5  of the First Schedule to the Regulations – hindering and obstructing members of the public service in the discharge of their duties by blocking offices and law offices with key blockers so that they will not go about their lawful duties.

The respondent appointed a Disciplinary Committee, presided over by the Secretary for Justice, Legal and Parliamentary Affairs, which conducted its hearing in the Midlands city of Gweru in November 2012. The Disciplinary Committee recommended to the Public Service Commission (the Commission) that the appellants be found not guilty of all the charges preferred against them.

The Commission, in a determination handed down on 22nd April 2013, found the appellants guilty of Count 1, and not guilty of Count 2 and Count 3. Having found them guilty of Count 1, it imposed a penalty of dismissal, and ordered that the appellants be discharged from the service with effect from 18th April 2013.

Aggrieved by this determination, the appellants lodged an appeal with this Court. Their grounds of appeal are stated as follows;

“1.	The Disciplinary Committee erred and misdirected itself in failing to hold as it should have, that the charges against appellants breached the equity principle in so far as only appellants in the ten member executive committee of the ZIMBABWE LAW OFFICERS’ ASSOCIATION and indeed amongst the whole membership of the association were brought before the Disciplinary Committee and to that end the charges constituted an unfair labour practice on the basis of selective punishment and unfair discrimination.

2.	Respondent’s Disciplinary Committee erred and misdirected itself in holding that the industrial action of 4th to 17th October 2011 was illegal when infact no evidence of the nature of the illegality, if any had been placed before it.

3.	Respondent’s Disciplinary Committee erred and misdirected itself in finding as it did that appellants participated in the industrial  action, without any evidence having been led to show what specific acts each appellant did or omitted to do in furtherance of the industrial action.

4. 	Alternative to paragraph 3 above, the Disciplinary Committee erred in finding as it did that the appellants participated in the industrial action when in fact the charges levelled against appellants therein did not relate to participation in the industrial action but rather to alleged incitement of respondent’s employees.

5.	Respondent’s Disciplinary Committee erred at law in finding as it did, that the appellant’s acted in common purpose, when in fact the doctrine of common purpose is inapplicable to civil matters as it is a doctrine peculiar to criminal liability.

6.	Respondent’s Disciplinary Committee erred and misdirected itself in failing to find as it should have, that appellants’ at all material times were acting for and on behalf of their members in a representative capacity, which capacity was accepted by the MINISTRY OF JUSTICE AND LEGAL AFFAIRS by engaging appellants in negotiations as it did. To that end they could not possibly accrue personal liability for acts of the general membership, which acts they neither incited nor encouraged.

7.	Respondent’s Disciplinary Committee erred at law in holding as it did that appellant’s are responsible for the acts or omissions of their members when at law each person assumes liability in their personal capacity. Alternatively no specific act or omission of any member of the ZIMBABWE LAW OFFICERS’ ASSOCIATION was placed before the Disciplinary Committee.

8.	The Disciplinary Committee misdirected itself which misdirection amounts to an error of law in handing down the penalty of dismissal without hearing submissions in mitigation.”

It must be pointed out, from the outset, that the appeal in respect of the 4th appellant, Mr Patrobs Dube, was withdrawn. This was after it was submitted that he noted an appeal in the Bulawayo Labour Court under case number LC/MT/65/13. He was granted a default judgment on 19th February 2014. The respondent’s application for rescission of the default judgment was dismissed. The respondent then filed an application for review of the default judgment in the High Court. The review matter is pending under case number HC 6385/14.

This appeal will therefore be considered in respect of 4 appellants, Messrs Mehluli Tshuma, Leopold Mudisi, Dereck Charamba and Musekiwa Mbanje cited on the papers filed of record as the 1st, 2nd, 3rd and 5th appellant respectively.

The facts of the matter, as outlined above, remain the same. The removal of the 4th appellant has no bearing on the facts and the issues under consideration.

At the hearing of the matter, the issues presented for the Court’s consideration were formulated as follows;

whether the collective job action was lawful

whether the appellants participated in the collective job action

whether the Commission’s decision to charge only 5 out of 10 ZILOA Executive Committee members was proper at law.

whether the findings by the Disciplinary Committee in terms whereof the appellants

were acquitted, were binding on the Commission

Whether the collective job action was lawful

A reading of the appellants’ heads of argument shows that there are two aspects to this issue. The first one is the legitimacy of ZILOA, as the organisation under whose auspices the collective job action was carried out. The second aspect is the legitimacy of the

collective job action itself, notwithstanding the legal status of the organisation which steered it.

On the legal status of ZILOA, the appellants averred that senior officials in the Attorney General’s Office recognised the existence of ZILOA. They held meetings with the ZILOA Executive Committee. These officials included the Attorney General himself, who was present at the inaugural annual general meeting of ZILOA. He was represented by his senior officials in subsequent meetings with ZILOA, where discussions were held on conditions of service for its members.

The appellants further submitted that there was similar recognition of ZILOA by the Ministry of Justice, Legal and Parliamentary Affairs. The Permanent Secretary engaged ZILOA in meetings where the welfare of its members was discussed. The issue of ZILOA’s lawfulness as an organisation was never brought up in these meetings. The Attorney General and the Ministry, as representatives of the employer, are estopped from questioning the legality of ZILOA, given their acquiescence to its existence prior to the industrial action.

On this issue i.e. the legal status of ZILOA, the respondent submitted that at the material time ZILOA was not registered with the relevant Ministry. It therefore did not have the mandate to represent anyone as an association. For it to legitimately represent its members, ZILOA ought to have been a recognised association by the Minister of Public Service, Labour and Social Welfare.

Consequently the notice to engage in an industrial action, and the industrial action that ensued, were unlawful.

Recognition of associations or organisations is provided for in Section 24 of the Public Service Act [Cap 16:04]. It reads as follows;

“24.	Recognised associations and organisations.

The Minister may, by written notice to the association or organisation concerned, declare any association or organisation representing all or any members of the Public Service to be a recognised association or a recognised organisation, as the case may be, for the purposes of this Act.

The Minister may at any time, by written notice to the recognised association or organisation concerned, revoke any declaration made in terms of subsection (1).

Without derogation from section twenty –

the Minister and the Commission may consult with a recognised association or organisation on such matters affecting the efficiency, well-being or good administration of the Public Service or the interests of members of the recognised association, or organisation, as the Minister or the Commission, as the case may be, thinks appropriate, and

a recognised association or organisation may make representations to the Minister and the Commission concerning the conditions of service of the members of the Public Service represented by the association or organisation, and the Minister or the Commission, as the case may be, shall due the regard to any such representations when exercising any functions in terms of this Act.

Any member of the Public Service who is eligible to do so may join a recognised association or organisation and, subject to this Act, participate in its lawful activities.

A member of the Public Service who fails or refuses to join a recognised association or organisation shall not, an account of such failure, be debarred from or prejudiced in respect of any appointment, promotion or advancement within the Public Service.”

The Disciplinary Authority, in its findings dated 19th April 2013, observed that;

“(i) 	During the period of 4 October 2011and 15 October 2011 when the Public Prosecutors and Law Officers were engaged in a collective action, ZILOA was registered as a Trust, but not as an association recognized by the Ministry of Public Service in terms of Section 24(1) of the Public Service Act.

(ii)	ZILOA was only registered with the Ministry of Public Service as a recognized Association on 5 June 2012.”

From the provisions of Section 24 of the Public Service Act, supra; it is clear ZILOA was not a recognised association. The alleged tacit recognition by the officials referred to does not amount to recognition in terms of the law. It cannot override the clear provisions of the law, which require a formal written notice by the Minister, conferring the status of a recognised association. ZILOA, it appears, later realised the need for proper recognition, and regularised its position in June 2012, when it got registered with the Ministry of Public Service as a recognised association.

Thus, on the basis of the legality of ZILOA the collective job action cannot be regarded as lawful.

There is, as already indicated, another dimension to this issue. The appellants contended that even if ZILOA were held to be an unrecognised association, that has no bearing on the lawfulness or otherwise of the collective job action. This can be determined independently of the legal status of ZILOA. It was wrong, argued the appellants, to link the legitimacy of the industrial action to the legitimacy of ZILOA. Since there is no legal framework that regulates the conduct of industrial action in the Public Service Act or any of the regulations made thereunder, there is no basis for holding that the industrial action was unlawful. It seems to me the appellants placed greater emphasis on this dimension than the earlier one, the tacit recognition of ZILOA. Their heads of argument were quite extensive on this issue.

The appellants contended that there is nothing in the Public Service Act and its regulations that place limitations on the right to engage in a collective job action by an unrecognised association. The limitations or restrictions imposed on an unregistered association do not include industrial action.

In particular, the appellants made reference to the Public Service (Formation and Recognition of Associations or Organisations) Regulations Statutory Instrument 45 of 1998. The appellants contended that Section 7(2) of S.I. 45 of 1998, which places limitations on unrecognised associations, does not include industrial action in such limitations.

Section 7 of S.I. 45 of 1998 provides:

“ (1)	No unrecognized association or organization may, in its corporate name, make representations to the Commission  or the Joint Council.

(2) 	No unrecognized association or organization may, whether in its corporate name or through any of its members –

participate in the apex council or be represented on the Joint Council; or

be entitled to be provided with the particulars referred to in paragraph (c) of subsection (2) of section 6.

(3)	No unrecognized association or organisation may, whether in its corporate name or otherwise –

(a) have the right of access to referred in paragraph (b) of subsection (2) of section 6;

or

(b) be assisted by the Commission in levying, collecting, suing for or recovering

membership dues.”

Thus, the contention by the appellants is essentially that ZILOA’s industrial action cannot be regarded as unlawful merely on the basis that ZILOA was an urecognized association. This contention is summed up in paragraph 53 of their heads of argument, which reads;

“It is thus submitted that respondent’s disciplinary committee erred in finding as it did, that the absence of recognition on the part of ZILOA meant that the industrial action embarked on by its membership was illegal. There is lawfully no basis upon which that finding could be made. Recognition has no relationship whatsoever with the legality or otherwise of an industrial action.”

The appellants invoked the rule of interpretation that states that the express mention of one thing should be taken to exclude whatever is not mentioned. They cited the cases of Nkomo and Another vs. Attorney General and Others 1993 (2) ZLR 422 (SC) and Eagle Insurance Co. Ltd vs. Grant 1989 (3) ZLR 278 (SC).

In particular they made reference to GUBBAY CJ’s remarks in Nkomo & Anor. vs. Attorneys General & Ors, supra, at page 434 D – E.

“This is no more than an application of the rule embodied in the maxim expressio unius

exclusio alterius.” It draws attention to the fairly obvious linguistic point that in many

contexts the mention of some matters warrants an inference that other cognate matters were

intentionally excluded. See Maxwell on The Interpretation of Statutes 12 ed at p 293.’

Since there is no mention of industrial action on the list of limitations in Section 7(2) of S.I. 45/98 (supra), there is no basis for linking the industrial action to the unlawfulness of ZILOA, argued the appellants.

The appellants made no reference to the preceding section, Section 6 of S.I. 45 of 1998. This Section sets out what a recognised association or organisation is entitled to.  Section 6(2) reads as follows:

“(2)	Subject to the Act and these regulations, a recognized association or organisation shall be entitled –

to make representations to the Minister and the Commission concerning the conditions of service of the members of the Public Service represented by the association or organization; and

through its duly authorized representatives, to the right of access during working hours to those members of the Public Service it represents; and

to be provided by the Commission with the names and other relevant particulars, including particulars as to the remuneration, of all members of the Public Service it represents; and

to make representations to the Labour Relations Tribunal on behalf of any of its members; and

to participate in the apex council; and

to levy, collect, sue for and recover membership dues, and to be assisted by the Commission in doing so, in the manner agreed or determined in terms of Section 9.”

Among the rights conferred upon a recognised association is participation in negotiations on conditions of employment for its members, through the framework of the Apex and Joint Councils. A reading of these provisions shows that any representations to the Commission on conditions of service is lawfully done by a recognised association.

It logically follows that the rights conferred upon a recognised association, in this Section, are not conferred upon an unrecognised association. The express mention of recognised association necessarily excludes unrecognised association. The same principle the appellants relied upon in relation to Section 7(2), can be applied in relation to Section 6(2).  If the right to make representations on conditions of service is granted only to a recognised association, any process embarked on by an unrecognised association to engage the authorities on conditions of service would be unlawful. That, by necessary implication, would include the collective job action embarked on by ZILOA.  It was all in the context of pushing for better conditions of employment on behalf of its members, for which it lacked the requisite mandate.

It appears the appellants did not read the regulations they cited in their broader context. Their overall effect is to prevent an unregistered association from engaging the authorities on conditions of employment for its members. Any such engagement would be outside the regulations, and therefore unlawful. An industrial action, being outside the recognised mechanisms of negotiation through the Apex and Joint Councils, from which an unrecognised association is excluded, would be, a fortiori, unlawful.

In an endeavour to deal with this element of unlawfulness, the respondent referred to Part X of the Regulations, under the title “MAINTENANCE OF SERVICES.” Reference was particularly made to the definition of “Work Stoppage” in Section 56(1) of the Regulations. Work stoppage is defined as;

“work stoppage”

means any one or more of the following acts or omissions on the part of a member –

a refusal or failure to continue work, whether the discontinuance is complete or partial

a wilful retardation of the progress of work or a wilful obstruction of work, including a boycott, lock-out, sit in or other such concerted act or series of acts;

a breach or unlawful termination of a member’s conditions or contract of employment, which acts or omissions may reasonably be construed as being –

in consequence of a dispute regarding conditions of employment or other matters, and in pursuance of any ……… agreement or understanding, whether expressed or not, entered into between the member concerned and any other person; and

intended to induce or compel the Commission or the State or any other person to agree to or comply with any decisions made by or on behalf of the member concerned or any other person in connection with conditions of employment or in connection with any other matter whatsoever.”

The respondent argued that a strike and collective job action fits within the definition of work stoppage cited. As such, these actions fall under the prohibition in Section 59 of the Regulations. Section 59 prohibits work stoppage by members of the Public Service, and empowers the Commission to summarily dismiss from the Service a member who engages in a work stoppage.

Section 59(1) reads as follows;

“Notwithstanding any other regulations made under the Act but subject to this Section, if the Commission or head of Ministry, head of department or designated member has reason to believe that a member –

has refused or failed to carry out or perform any duty or work or has retarded or obstructed the progress of any work for the purpose of complying with any working rule which has been suspended in terms of subsection (1) or (2) of Section 58; or

has refused or failed to comply with a direction given in terms of paragraph (b) or (c) or subsection (1) of Sections 58, or

has declared or taken part in, or has advised, encouraged, incited, commanded, aided or procured another person to declare or take part in a work stoppage or the continuation of a work stoppage;

the Commission, head of Ministry, head of department or designated member, as the case may be, may –

suspend the member from duty for a period not exceeding 3 months; or

in the case of the Commission, summarily dismiss the member from the Public Service.”

The respondent averred that these provisions, Sections 56(1) and 59 (1) of the Regulations, make it unlawful for any member of the Public Service to engage in a work stoppage. The respondent pointed out that the prohibition is so serious that the respondent is empowered to summarily dismiss anyone found to have taken part in such a work stoppage.

The appellants vehemently argued against the inclusion of Sections 56 and 59 of the Regulations in the misconduct charge. They argued that apart from these provisions being unconstitutional, they were never the basis upon which the appellants were charged. The respondent, in charging the appellants, did not proceed in terms of Section 59(1) of the Regulations.

Section 59(1), it seems, provides for a distinct procedure from Paragraph 23 of the First Schedule, when dealing with collective job action or work stoppage. It is a procedure where the respondent is empowered to impose summary dismissal. It raises issues of the constitutionality of the provisions in question, which appear to be beyond the scope of these proceedings.

Whilst a strike or collective job action, such as ZILOA embarked on, fits within the definition of a work stoppage in PART X of the Regulations, it did not necessarily follow that the appellants had to be dealt with under that part of the Regulations. They were dealt with under PART VIII of the Regulations.

Paragraph 23 of the First Schedule falls under PART VIII of the Regulations, captioned “DISCIPLINARY PROCEDURE”. Sections 42 to 51, which fall under PART VIII, provide for the necessary disciplinary structures and procedures for any member charged with an act or acts of misconduct. It is the normal disciplinary process, as distinct from the summary process in PART X.  The respondent charged the appellants under this normal process, and they must be dealt with as such. Reference to PART X is therefore improper, as the respondent did not proceed under that PART.

In dealing with the appellants, the respondent followed all the due process provided for under PART VIII of the Regulations.  The appellants were accorded all their fundamental rights, and the principles of natural justice were properly observed.  They were not prejudiced in any way in the conduct of the disciplinary proceedings.  The question that needs to be resolved is whether there was sufficient evidence to find them guilty of the offence with which they were charged.

The appellants’ liability has therefore to be considered on the basis of whether or not there is evidence establishing their participation in the collective job action, as charged under Paragraph 23(a) of the First Schedule. In this regard, the respondent submitted, in paragraph 16 of its Supplementary heads of argument;

“The sole issue, then was whether or not each of the 5 appellants took part in illegal collective job action as defined in paragraph 23 of the First Schedule to the Regulations. If the answer was in the affirmative then each of the appellants was guilty. The “taking part” in the collective job action was a matter of fact, which fact would and could also include conduct such as that set out in subparagraphs (a), (b) and (c) of that paragraph 23. In the circumstances of this case respondent found it proved, on the evidence before it, that each of the 5 respondents had taken part in the manner envisaged under paragraph 23.”

Whether the appellants incited/participated in the collective job action

The appellants, as already indicated, were found guilty of Count 1, out of the three misconduct charges. This charge reads as follows;

“As defined in paragraphs 23(a), (b) and (c) of the First Schedule (Section 2) of the regulations, between the (4th) fourth of October and the (15th) fifteenth of October, 2011, you Leopold Mudisi, Dereck Charamba, Mehluli Tshuma, Patrobs Dube and Musekiwa Mbanje, or one or more of you, acting in common purpose engaged in illegal collective job action by inciting public prosecutors and law officers in the country’s twelve provinces to engage in illegal collective job action by calling meetings of members at the work placed or during working hours in furtherance of such action, that is to say, you Leopold Mudisi, Dereck Charamba, Mehluli Tshuma, Patrobs Dube and Musekiwa Mbanje, or one of more or you, acting in common purpose led prosecutors and law officers at daily gatherings at New Government Complex situated in Harare Central Avenue and at Harare Magistrates Court singing and chanting slogans in furtherance of such illegal strike action which had no basis in law and in fact thereby disrupting public services to do with the administration of justice.”

In its decision of 19th April 2013, the Commission, as the Disciplinary Authority, found the appellants “guilty for participating in an illegal collective job action”.

The appellants averred that there was no evidence which established their participation in the industrial action. A reading of the charge shows that they were found guilty in terms of subparagraph (a) of paragraph 23 of the First Schedule. That means their mode of participating was incitement.

The appellants contended that there was no evidence establishing such incitement. There ought to have been evidence establishing the participation of each one of the 5 appellants. It should not be general and in a representative capacity Mr Nyamakura, on behalf of the appellants, contended during oral submissions;

“This Court ought to find the appellants not guilty because of the generalised outcome of both the charge and findings by the respondent …… In the charge, a bandwagon fashion was followed. There was no particular allegation against each of the five appellants.. there was never a finding of what each individual appellant did … There was no individual analysis of the evidence. The respondent treated all the appellants as one … Respondent was supposed to consider the evidence against each individual.”

That was the pith of the appellants’ line of defence – that there was no evidence proving the alleged incitement, and the appellants should therefore be found not guilty of the alleged misconduct.

The respondent, on the other hand, contended that there was sufficient evidence showing the alleged incitement. The appellants set up some teams to travel around the country. The purpose was to discuss with members the issue of industrial action. It is these acts by the appellants that put in motion the  industrial action. It would not have taken place but for such actions. In this regard, Mrs O. Zvedi, on behalf of the respondent, contended during oral submissions:

“It is my submission there is evidence on record that appellants participated in the collective job action. The third appellant’s evidence was that the Executive Committee set up 3 teams to travel around the country to discuss with members the issue of industrial action.

That truly is incitement, as referred to in paragraph 23(a) and (c) of the First Schedule to the Regulations. Acts of the appellants moving around the country stirred up, set in motion, the industrial action that took place. Had it not been for that, the job action might not have taken place. Evidence has been led to establish that the appellants participated in and incited the industrial action in question (pages 178 to 180 of the record). If that is not evidence of participation by the appellants, I do not know how else we could describe that.

The burden of proof as required in civil cases, establishes that the appellants participated in and incited the industrial action.”

From the pages referred to in Mrs Zvedi’s submissions, it appears there were frequent or regular consultative meetings between members of ZILOA and their leadership, who included the appellants. Those meetings were held before and during the industrial action, at the New Government Complex, where the striking law officers were gathered in Harare. Liaison was maintained with stations outside Harare, again through the leadership provided by the appellants. This is contrary to what was submitted on behalf of the appellants by Mr Nyamakura, that the meetings were only pre-industrial action consultations. Page 170 of the disciplinary hearing minutes (page 180 of the record) reads:

“it says some say that you were the ring leaders and you were acting in common purpose and prosecutors and Law Officers and forced them to toy toy outside the New Government Complex in Harare and at the Magistrate Court is that correct? … That is correct madam, we normally found our members waiting for us outside the building because they knew we were negotiating from the New Government Complex because that is where the Attorney General’s Office is housed, that’s where the Permanent Secretary was, that’s where Mr Ranga was, so normally they would wait for feedback downstairs and after those meetings would go and cause the Chairman to report and where he would not be there I would do that, anyone of us would do that and the same was also happening we would also get in touch with those who were outside Harare through the phone agitating and I think it’s very incorrect so say that we were inciting them to gather people were waiting for us.”

Thus, the appellants organised teams that went out to all the provinces to discuss industrial action. They constantly liaised with the strikers during the industrial action, visiting them at the site where they were gathered, outside New Government Complex, to update them on the progress on negotiations. They also maintained liaison with the strikers outside Harare. In the face of all this, the appellants want the Court to believe that they had nothing to do with the collective job action that was going on. They contended that it was their members, not them, who should bear full responsibility for the strike action. That contention is difficult to uphold in the circumstances. The inference is inescapable that they organised and co-ordinated the strike action. They cannot, in the circumstances wriggle out of liability for inciting the collective job action.

The appellants sought to rely on the decision in Attorney General vs. Mudisi (2) P. Dube (3) P. Charamba (4) M. Mbanje (5) M. Tshuma S.C. 62/12. In that case, the Supreme Court upheld a High Court decision which nullified the Attorney General’s decision to withdraw the respondents’ (as the present appellants were in that case) authority to prosecute.

The decision by the Attorney General was held to be hasty, precipitately made and arbitrary. The respondents had refused or failed to respond to the Attorney General’s letter accusing them of various acts of misconduct, emanating from the strike action by prosecutors and law officers.

The withdrawal of authority to prosecute was not preceded by any disciplinary processes against the respondents. PATEL JA remarked at pages 12 to 13 of the cyclostyled judgment:

“The allegations against the respondents, as captured in the appellant’s first letter to them, are essentially twofold: that they incited their colleagues to embark on collective job action and refused to call off the illegal strike; and that they placed key blockers on their office doors to bar other prosecutors from entering the offices. Firstly, all of these allegations were premised on miscellaneous media reports attached to the letter. Secondly, they were directed against the respondents generally and not individually. Finally and more critically, there was no reliable proof of their veracity or any admission by the respondents that they were guilty of the conduct alleged.

In these circumstances, it seems that the appellant took a massive leap from the inchoate letters penned by the respondents and their lawyers to the conclusion that they had admitted all the allegations against them. The appellant made no attempt to substantiate the allegations or have them investigated by means of disciplinary inquiry, as he could have done by instructing the Director of Public Prosecutions, qua head of department, to institute disciplinary proceedings in terms of the applicable Public Service Regulations.

As for the unquestionably insubordinate conduct of the respondents, the appellant was perfectly entitled to withdraw their prosecuting authority as an appropriate and necessary disciplinary measure. However, he could only do so in accordance with the governing tenets of natural justice embodied in s 3 of the Administrative Justice Act. The respondents engaged in the business of prosecuting criminal cases on behalf of the State. They have a legitimate expectation of continuing to prosecute in that capacity and cannot be deprived of the right to do so without just cause. What the appellant should have done, at the very least, is to write to each of the respondents, identifying with greater particularity the specific allegations levelled against them individually, indicating that their open defiance of his authority justified the withdrawal of their prosecutorial mandate, and warning that he intended to withdraw that mandate unless they were able to persuade him otherwise.

In the event, the unavoidable conclusion is that the appellant acted precipitately and in breach of the requirements of s 3 of the Administrative Justice Act. I take the view that a strict standard of compliance with those requirements was expected of him in his dealings with the respondents, particularly in his capacity as the legal supremo of the Government at the relevant time.”

No disciplinary proceedings had been conducted. No hearing or investigation inquiry had been made. In other words, no due process had been followed, which should have led to the punitive action to withdraw the authority to prosecute. It is in this context that the remarks by PATEL JA were made.

In casu, it has been shown that due process was followed. The appellants were subjected to disciplinary proceedings in terms of the applicable Public Service regulations, resulting in their conviction and penalty. The circumstances are certainly different from those which obtained in the cited case, making that case clearly distinguishable from the instant one.

Whether the Commission’s decision to charge only 5 out of 10 ZILOA Executive Committee members was proper at law

The appellants averred that there was selective application of the law, in terms whereof they were targeted and singled out for dismissal. They contended that this was unjustified and was in violation of the parity principle, which should be applied when handling disciplinary matters. Out of 10 members of the ZILOA Executive Committee, it is the 5 of them who were subjected to disciplinary proceedings. Out of the 253 members of ZILOA, again it is only the 5 of them who went through disciplinary proceedings. The appellants argued that;

“In cases of group misconduct and notwithstanding the operational challenges, there must be a semblance of fairness in the manner in which the employer deals with individual offending employees.”

They asserted that they were;

“Victims of selective punishment in a manner that our laws do not permit.”

The appellants made reference to J. Grogan’s book, DISMISSAL, 1ST Ed, Juta and Co. Ltd, 2010 where the author stated at page 480;

“In the absence of special circumstances, such as misconduct, which justify singling out some strikers for dismissal, an employer must apply the ‘parity principle’ when disciplining unprotected strikers – generally speaking, if the employer decides to dismiss one striker, it must dismiss them all; conversely if one striker’s action is condoned, the action of all of other strikers should also be condoned.”

They also referred to the case of Jiah and Others vs. Public Service Commission and Another 1999 (1) ZLR 17.

In countering the appellants’ averments, the respondent submitted that the parity principle was not part of our law. In any case, it was a very general principle, which is not invariably applied. There is nothing amiss in a Disciplinary Authority subjecting some employees, and leaving out others, to disciplinary proceedings. The respondent referred to the case of Lancashire Steel (Pvt) Ltd. vs. Elijah Zvidzai Mandevana & Ors SC 29/95, where McNALLY JA stated at page 6 of the cyclostyled judgment;

“Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the unlawful collective job action should have been selected for punishment, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not in law relevant that others may also have been guilty (emphasis added)”

It seems there has been no departure from the approach enunciated in the Lancashire case, supra. This approach was followed by the Supreme Court in Vimbainashe Dube vs. Standard Chartered Bank SC 105/04 where ZIYAMBI JA held;

“Turning to the ground of appeal advanced on behalf of the appellant, namely, that the learned Deputy Chairman erred and misdirected himself in law in holding that the manner in which a fellow employee was punished was not a relevant consideration, the learned Deputy Chairman relied on the remarks of McNALLY JA in Lancashire Steel (Private) Limited vs. Elijah Zvidzai Mandevana & Ors. SC 29/95 …….

In the instant case authority was granted to terminate the appellants’ services on the grounds of gross incompetence or inefficiency in the performance of his work. It matters not that authority was not sought for the dismissal of others who performed badly. The learned deputy chairman was correct in his application of the law.” (emphasis added)

In the circumstances, the appellants’ contention that their prosecution for misconduct was selective cannot be upheld.

Whether the findings by the Disciplinary Committee in terms whereof the appellants were acquitted, were binding on the Commission

The initial disciplinary hearing was held by a Disciplinary Committee appointed by the Commission, in its capacity as the Disciplinary Authority. This is in line with Section 43(1) of the Regulations which provides;

“A Disciplinary Authority shall appoint a disciplinary committee to hear allegations of misconduct against members and make appropriate recommendations to the Disciplinary Authority.” (underlining added)

It is clear from this provision that what a Disciplinary Committee does is to make recommendations to the Disciplining Committee. That means all its findings, whether in respect of conviction or penalty, are recommendations to the Disciplinary Authority. The latter is therefore not bound by the recommendations of the Committee. This position is further clarified in Section 45(6), which reads;

“(6)	At the conclusion of the hearing or soon thereafter as possible the Chairman of the Disciplinary Committee shall submit to the Disciplinary Authority –

a notification in writing of its findings and recommendations thereof, including a recommendation as to the penalty to be imposed upon the member where it finds the member guilty of misconduct; and

the record of the evidence led at the hearing”

Upon receipt of the findings and recommendations of the Disciplinary Committee, the powers of the Disciplinary Authority are set out in Section 46 of the Regulations. Section 46 provides as follows;

“(1) 	On receiving the documents referred to in subsection (6) of Section 45 the Disciplinary Authority may –

refer the matter back to the disciplinary committee for further hearing; or

proceed to determine whether or not the member concerned is guilty of misconduct as alleged.

(2)	Where the Disciplinary Authority determines that the member is not guilty of misconduct, the Disciplinary Authority shall forthwith notify the member and –

(a)  the head of ministry, in the case where the Disciplinary Authority is a head of

department.

the Commission, in the case where the Disciplinary Authority is a head of

ministry.

(3)	Where the Disciplinary Authority determines that a member is guilty of misconduct, the Disciplinary Authority shall –

(a) proceed to determine the penalty to be imposed upon the member; and

(b) notify the member and, where the Disciplinary Authority is the Commission –

(i) 	the head of Ministry, in the case where the Disciplinary Authority is a head of department;

(ii)	the Commission, in the case where the Disciplinary Authority is a head of Ministry;

take such consequential measures as may be necessary in the circumstances.

(4)	It shall be competent for the Disciplinary Authority to find a member guilt of an act of misconduct other than the act which the member was originally alleged to have committed if the facts disclose such other act.

Provided that, where the disciplinary committee has not made a finding that the member is guilty of such other act, the Disciplinary Authority shall refer the matter back for further hearing by the disciplinary committee.”

A reading of these clear provisions shows that the determination of the guilt or otherwise of a member accused of misconduct is a function of the Disciplinary Authority. There is nothing, in any of these provisions, that suggests that the Disciplinary Authority is bound by the findings of the  Disciplinary Committee which makes recommendations to it. The Disciplinary Committee has no powers to make a determination, either on conviction or penalty, which is dispositive of the matter. The matter is disposed of by a determination of the Disciplinary Authority, which may or may not accept the findings and recommendations of the Disciplinary Committee. This was precisely the nature of the relationship between the Commission and the Disciplinary Committee which initially conducted the appellants’ disciplinary hearing.

Thus, the Disciplinary Authority looked at the record of proceedings submitted to it, considered the findings and recommendations of the Disciplinary Committee, and arrived at the decision contained in paragraph 17 of the record of proceedings. The paragraph, headed “COMMISSION’S DECISION” reads;

“(i)	The Commission, acting in terms of Section 46(a) of Statutory Instrument 1 of 2000 as amended and as read with Section 50 (1)(a) of the same, found Messrs Mudisi, Charamba, Dube, Tshuma and Mbanje guilty for participating in an illegal collective job action, and discharged them from the service with effect from 18 April 2013.

(ii)	The members were found not guilty for blocking the Mutare Magistrates Court because of lack of evidence.

(iii)	The period the members were on suspension, thus from 19 April 2012 to 18 April 2013 was treated as leave without pay.”

The Commission, as the Disciplinary Authority, properly acted within the powers conferred upon it by the statutory provisions cited.

Having regard to the totality of the facts and circumstances looked at in this matter, the Court finds no basis for interfering with the Commission’s decision.

In the result, it is ordered that;

The appeal be and is hereby dismissed.

Each party bears its own costs.

……………………………………….			…………………………

MANYANGADZE J 					Date

…………………………………. I agree 		…………………………

MUSARIRI J 						Date

………………………………… I agree		…………………………..

CHIVIZHE J						Date

Mtetwa and Nyambirai, appellants’ legal practitioners

Civil Division, respondent’s legal practitioners