Nhamoinesu Chaurura v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/354/16
HELD AT HARARE 19 FEBRAURY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/354/16

HELD AT HARARE 19 FEBRAURY 2016			CASE NO LC/H/155/15

& 27 MAY 2016

In the matter between:

NHAMOINESU CHAURURA				Appellant

And

HEALTH SERVICE BOARD				Respondent

Before The Honourable R F Manyangadze, Judge

For Appellant			Mr T Kuchenga (Legal Practitioner)

For Respondent		Ms R Chanduru (Civil Division)

MANYANGADZE, J:

This is an appeal against the determination of the Health Service Board (the Board), which upheld the dismissal of the appellant from employment.

The factual background to the matter is that the appellant was employed by the respondent as Administration Assistant, and was based at Chivhu General Hospital, which falls under Mashonaland East Province.  In addition to his substantive post of Administration Assistant, he was also assigned to act as secretary to the Central Buying Unit (CBU), a body tasked with the collection of quotations from suppliers of goods and services.  The quotations would then be forwarded to the Procurement Tender Committee (PTC), a body responsible for the vetting and selection of suppliers of goods and services to the hospital.

Some goods were supplied to the hospital at exorbitant prices, causing considerable financial loss to the health care institution.  Arising from his position as secretary to the CBU, the appellant was charged with misconduct.  He was charged with contravening section 44 (2) (a) of the Health Service Regulations of 2006 (the Regulations), the charge being:

“Failure to obey lawful instructions including circulars, instructions or standing orders issued by the Board, the Treasury or the Accounting Officer.”

The factual particulars of the charge were set out in a charge letter dated 2 October 2013, as follows:

“The grounds upon which this charge is based are that during the procurement process of Chivhu General Hospital Targeted Rehabilitation project you are alleged-

To have on 28 February 2011 compiled a list of suppliers from your traditional list, did not consider the State Procurement Board approved list of suppliers and an advertisement of the tenders in a newspaper.

To have sourced and used fictitious quotations listed on annexure attached to compete for the tenders with genuine ones.

To have sourced and used highly inflated quotations as compared to the market prices Annexure B attached refers.

To have split the competitive tenders listed on Annexure C attached to avoid the tender band limit of USD$10 000.00 stipulated by the State Procurement Board minute referenced SPB/B/9/6 dated 12 November 2008.

To have endorsed quotations with false address (listed on Annexure D attached) with a suspected fraudulent intent and in suspected connivance with the suppliers.

To have sourced a quotation from Acquitancy Enterprises a company which was confirmed to be owned by Mr Mwazungunya’s (Provincial Health Service Administrator) brother and you did not make a declaration of the relationship or his interest he may have had in this supplier as required.  It is therefore reasonably suspected that this may have resulted in the impingement of your impartiality and lead to the awarding of tender number 006/11 to Mr Mwazungunya’s brother.”

Following a disciplinary hearing held on 20 February 2014, the respondent’s

Disciplinary Authority, in the form of the Provincial Medical Director, handed down a determination dated 18 June 2014, in terms of which the appellant was found guilty as charged and dismissed from employment.

The appellant appealed to the Board, which, in a determination handed down on 4 February 2015, dismissed his appeal.  He then lodged an appeal with this court.

The appellant, who was not represented at the time of noting the appeal, simply attached his grounds of appeal to the Board, effectively adopting them as his grounds of appeal to this court.  It appears the gravamen of his appeal is  contained in the third and fourth paragraphs of the grounds of appeal.  These read as follows:

“The Disciplinary Committee did not take into consideration that it was not the mandate of the CBU to check and compare the prices of the products quoted, in that case the duties of the CBU were of sourcing and compile the comparative schedules and to hand over to the PTC for comparing the prices and awarding the winning companies.

NOTE:  THE PTC IS THE MANAGER OF THE CBU

Had the procurement Tender Committee noted the wrong in our practice they could have stopped and correct the CBU.  Since the PTC is the manager of the CBU.  In addition to this, there are some items which were requested to be requoted by the PTC meaning to say that the PTC was the one which was above the whole process.  The PTC approved and awarded the winning companies to supply and by virtue it meant what the CBU did was correct.”

The basis of the appeal is that the appellant, essentially, did what was expected of him, at the level he was operating at.  It was sourcing and compiling comparative schedules of quotations from the listed suppliers, and handing them over to the PTC.  The PTC would then compare the prices and select the winning tenders.  This was basically the contention by Mr T Kuchenga on behalf of the appellant, during oral submissions:

“What appellant was simply tasked to do was to communicate with the suppliers to submit their quotations, through a tender box.  Appellant would open the box and forward it to the relevant Board, who then had duty to decide which supplier to award the tender.”

The respondent, on the other hand, contended that the appellant’s actions prejudiced the respondent.  The appellant ought to have alerted the PTC on the inflated quotations.  He cannot confess ignorance of an obligation to do so.  The import of this contention is that the appellant ought to have commented or made appropriate recommendations on the apparent irregularities on the tenders/quotations submitted, before forwarding them to the PTC.  Submitted Ms R Chanduru on behalf the respondent;

“We submit that the actions of the appellant were wilful.  Him professing ignorance of the situation is unfounded.”

The respondent averred that the evidence established the appellant’s guilt on a balance of probabilities, which is the standard of proof required in civil cases.  In this regard, reference was made to the case of Zesa v Dera 1998 (1) ZLR 500 (S), wherein it was stated at p 503:

“It is a starting, and in my view an entirely novel proposition, that in civil cases, the standard of proof should be anything other than proof on a balance of probabilities.  The reasons, I have always understood, why in a criminal case proof beyond reasonable doubt is required, it is that the loss of a criminal case can result in death by hanging, incarceration or at least, the branding of a person as a criminal convict.  A civil case on the other hand, is merely a dispute between individuals.  The loss of such a case, however in terms of money or property, loss of employment or loss of face is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.”

The respondent also referred to prominent South African authors who commented on this principle.  These are Hoffman and Zeppert South African Law of Evidence, p 577,

and Joubert, Law of South Africa Vol 9 paragraph 573 p 340.

It was however, difficult to reconcile these submissions with submissions, also made by the respondent in its heads of argument, which tended to support the appellant’s point of view.  Paragraph 6 of the respondent’s heads of argument reads:

“The record of proceedings of the disciplinary hearing shows that indeed the appellant had no knowledge of whatever they were doing but the disciplinary committee based their charge on the basis that ignorance of the law is not a defence.  The appellants only sourced quotations and had to leave the rest of the work to the Procurement Tender Committee who acted like a superior body to the Central Buying Unit.” (Underlining added)

In particular, paragraph 12 of the same heads of argument reads:

“The claim that the Disciplinary Committee failed to consider that it was not the mandate of the CBU to check and compare the prices of quoted prices but to source and prepare comparative schedules and to hand over to PTC for comparing the tenders and awarding the winning companies is true.”

It is clear, from these submissions that the respondent could not wriggle out of the fact that the comparison and analysis of quotations tendered was the function of the PTC.  It was not the function of the CBU.  The appellant performed secretarial duties to the CBU.  He was not even its chairperson.  There is nothing on record to show that he chaired, and influenced the processes of the CBU.  There is nothing to controvert his assertion that he simply collected data on quotations, and submitted it to the PTC for analysis.  There is no evidence of collusion, connivance or any form of improper association with suppliers.  The respondent has not pointed to any such evidence.   Submitted Mr Kuchenga on behalf of the appellant;

“There is nothing produced as evidence that either appellant inflated the prices or did anything fraudulent, or anything that would qualify to be misconduct.  There is nothing to show anyone testified that the quotations were not original.  One cannot then point at the appellant and blame him simply because the respondent suffered.”

In my view, the matter would have been different if respondent produced evidence of standing instructions or circulars clearly spelling out that a person in the position of the appellant, was under an obligation to conduct an initial analysis of tenders submitted, and make appropriate recommendations to the PTC.  No such evidence has been placed on record.  Instead, the respondent itself conceded there was no such mandate.  The mandate lay with the PTC.

It seems officials in the PTC, who adjudicated over the tenders, are the ones who should have been held to account for the prejudice suffered by the respondent.  The Disciplinary Authority, and the Board, which upheld its decision, found liability where there was no evidence on which to base such liability.  There is justification, in the circumstances, for interfering with their determination.  The case falls into one of those exceptional situations where a lower tribunal’s discretion may be interfered with.   In Barros & Another v Chimponda 1999 (1) ZLR p 58, the exceptional situations for interfering with a lower tribunal’s findings were set out.  There were stated as;

“It must appear that an error has been made on the exercise of the discretion.  If the primary court had acted upon a wrong principle, if it allows extraneous or irrelevant matters to guide it or to affect it, if it mistakes the facts, if it does not take into account some relevant consideration then its determination should be reviewed and the appellate court may exercise its own discretion on submissions provided always it has the materials for doing so.”

For the reasons already stated, the court finds that there is merit in the appeal.

In the circumstances, it is ordered that;

The appeal be and is hereby allowed.

The decision of the Health Services Board be and is hereby set aside.

The respondent shall bear the appellant’s costs.

Karuwa & Associates, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners