Patrick P. Matongo v Ministry of Higher & Tertiary Education

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/65/13
HELD AT HARARE ON 28th November, 2012
CASE NO.LC/H/588/11
In the matter between:
---------




THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO.LC/H/65/13

HELD AT HARARE ON 28th November, 2012       CASE NO.LC/H/588/11

In the matter between:

PATRICK P. MATONGO 						Appellant

And

MINISTRY OF HIGHER & TERTIARY EDUCATION	Respondent

Before The Honourable G. Mhuri, Senior President

Appellant        In Person

For Respondent : Ms Kuipa (Civil Division of the

Attorney General’s Office)

MHURI G,:

By a letter dated the 3rd of February 2010, Appellant was placed on suspension with effect from the 4th of February 2010. As contained in the letter Appellant was suspected of having committed an act of misconduct in terms of paragraphs 5,8,13(b)(c) and 24 of the First Schedule of the Public Service Regulations SI 1 of 2000 (the Regulations).

The allegations were eight (8) these were that:-

Appellant misled the Procurement Committee in the discharge of its duties by sourcing and submitting fraudulent quotations of building materials with misleading prices and contract details of Jusbrite, Shelpan Investments and Chalco Investments. The contact details and prices could not be ascertained.

On the 6th of October 2009 Appellant connived with an accomplice in producing a fake quotation number 0932 valued at $5 509 purporting to have sourced it from P.G. Lyton Road Branch.

This is a non- existing branch.

Appellant submitted to the Procurement Committee misleading information on quotation of DST, Johnson and Fletcher, FABCO, Open House, P.G. Building Supplies, Halsteds, Justbrite and Shelpan Investments Private Limited.

Prices for Justbrite and Shelpan made lower giving the picture that they were cheaper than the rest of the companies.

This caused the Procurement Committee to make decisions based on the misleading information.

Appellant sourced quotations of building materials and submitted quotations for Shelpan Investments and Justbrite whose respective physical addresses.

Shop No. 3 Caftico House, Harare, and

No. 14 Tanzania House, Harare

were none existent.

(a) 	On the 25th September 2009 Appellant signed for cash

$969.00 on payment voucher No P.844 to pay Justbrite Investments after he had sourced and submitted quotations of the supplies including Justbrite.

(b)	Appellant signed for cash $2 792.00 on payment voucher No. P842 to pay Shelpan Investments after sourcing and submitting quotations including Shelpan Investments.

(c) 	On the 7th October 2009 Appellant signed for cash $184.00 on payment voucher No. P.847 to pay Chalco Investments.

6. Appellant did not acquit $3 945.00 which he signed for above

and for which he submitted invoices and not receipts as proof of having made payments to the suppliers.

7. Appellant failed to locate the physical address of Chalco,

Justbrite and Shelpan Investments thereby inhibiting the Institute from authenticating the genuiness of the suppliers.

8. Appellant conducted himself in a manner inconsistent with

that expect of a Head of Department.

Appellant’s submission in this Court that the Disciplinary Committee dismissed the charges is not supported by the record. Pages 22 – 23 of the record clearly narrates the charges levelled against Appellant and which Appellant was facing before the Disciplinary Committee. These are the very same charges as spelt out in the Appellant’s suspension letter. The following examples are instructive. At page 23 of the record, Appellant is asked.

“What is your response to charge number one?”

At page 24 Appellant responds.

“O.K, I deny the charge, the quotations were just brought to me by Lecturers and then I verified.”

On the same page he is again asked,

“What is your response to the second charge?”

He replied

“I did not do such a thing, we needed more information because I did not connive with any company.”

Again he is asked

“What is your response to allegation number 3?”

His reply was

“it is similar to number one, I did not mislead the Procurement Board, the Board is an independent Board.”

It is therefore clear from the above that the charges were never dismissed by the Disciplinary Committee. Further the findings and the recommendations by the Disciplinary Committee also show that the charges were never dismissed.

From the record, the words charge and allegation were used interchangeably. I find no misdirection in this and find also that this cannot absolve Appellant at all. The fact that the Disciplinary Committee did not specifically mention the paragraphs as stated in the Regulations is not a fatal irregularity that can vitiate the proceedings. The charges were of sufficient clarity without the paragraphs.

The Appellant also raised as a ground that the Disciplinary Committee was not properly constituted as the members came from the Human Resources Department with two members being subordinate to the Human Resources Director.

Firstly, it is noted that Appellant did not raise an objection at the onset of the proceedings before the Disciplinary Committee when the members were introduced. He kept quiet and proceeded with hearing only to raise this issue before this Court.

Secondly, Appellant avers that the two subordinate members could not reasonably be expected to have exercise their independent discretion. He did not substantiate this averment by any proof, as such it is difficult to accept.

Thirdly, Section 43 of the Regulations empowers the Commission to appoint the Disciplinary Committee. In casu the Commission duly appointed the Disciplinary Committee in compliance with the provision. It was not Appellant’s argument that the provision was not complied with to the letter. Section 43(2)(b) provides:-

(2)	“A Disciplinary Committee appointed by –

(b) a Head of Ministry shall consist of –

(i) a Chairman who shall be the

Principal Establishment Officer of the Ministry or a member of equivalent rank;

(ii)	two other members appointed by the Head of Ministry who shall be confirmed members;”

I did not understand Appellant’s argument to be that the two members Appellant is not comfortable with, were not confirmed members as is required  in terms of the Regulations.

Appellant’s other argument was on the determination letter which bore two different dates. I find that nothing really turns on this. The contents of the first letter and the second letter save for the effective date and the level of demotion are actually the same. I accept Respondent’s submission that the second letter was addressing an error and an omission that had been done in the first letter. The error being the demotion from Principal Lecturer to Senior Lecturer which in the first letter was stated as from Senior Lecturer to Lecturer. The omission being the effective date of the demotion.

In the case of

AIR ZIMBABWE PRIVATE LIMITED

VS

CHIKU MENSAH AND MAVIS MWARWEYE

SC 89/04

Chief Justice Chidyausiku had this to say at page 6 of the cyclostyled judgment;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

In casu, I find that on a balance of probabilities, the acts of misconduct levelled against Appellant were proved.

He was the Chairperson of the Departmental Procurement Committee

Sourced quotations and referred these to the Procurement Committee for its considerations

He referred quotations of companies  whose physical addresses were not existence.

It turned out these companies had lower prices as compared to others.

He collected and signed for cash for payment to these companies.

Appellant did not deny some of the acts. At page 25 Appellant’s response to allegation 5 replied.

“Up to part C yes. I signed but I am not the only one.”

To another question,

“So allegation number 4 is correct.”

Appellant replied

“Yes the Police established that the physical addresses for the companies do not exist.”

It is clear from the above response that the information submitted to the Procurement Committee for consideration (physical addresses) was not correct and the Procurement Committee acted on this false information. To that end the Disciplinary Committee and the Disciplinary Authority cannot be faulted in their findings.

Accordingly I find that the appeal is without merit and it is therefore dismissed.

Civil Division of the Attorney General’s Office – Respondent’s Representatives