Ronald Katuli v Permanent Secretary Ministry of Higher and Tertiary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/655/2014
HARARE, 10 SEPTEMBER 2014
CASE NO.
JUDGMENT NO. LC/H/655/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/655/2014

HARARE, 10 SEPTEMBER 2014	                         CASE NO. LC/H/102/14

AND 10 OCTOBER 2014

In the matter between

RONALD KATULI							Appellant

And

PERMANENT SECRETARY MINISTRY OF 			Respondent

HIGHER AND TERTIARY EDUCATION

Before The Honourable P. Muzofa, Judge

For Appellant	-	T. Katsuro (Legal Practitioner)

For Respondent	-	Ms C. Sarawako (Civil Division)

MUZOFA, J:

The appellant was employed by respondent as a Lecturer at Belvedere Technical Teachers’ College.  Following allegations that appellant conducted income generating projects using respondent’s resources but failed to account for the money he received, he was charged on five (5) counts.  Three of the charges related to the income generating projects, the fourth charge was for using an unofficial receipt book to receipt the money he received and the fifth charge was for receiving the said money when it was not in line with his duties as a lecturer.  He was found liable and dismissed.

The appellant thereafter noted an appeal to this court.  The grounds of appeal are couched in the following terms.

“1.	The 1st respondent erred when he failed to consider that ignorance of the law is a defence where one is acting on advice by an administrative authority.  In casu, the conduct of the of the Appellants which was deemed to infract the Production and Pricing Policy Circular was done with the tacit authority and advice of the Principal.

2.	The 1st Respondent erred when he concluded that the principal was not aware of the projects of the Appellants when the college was receiving and receipting overheads over (sic) for the same.”

The appellant raise two issues ignorance of the law as a complete defence and whether appellant had tacit authority from the principal of the college to act as he did.

The two issues are related and therefore would be addressed concurrently.  The rule ignorance of law is no defence remains valid.  The only exception is where the person relying on it acted on incorrect advice as to the law, given by a Government official who is primarily responsible for the administration of the particular statute to which the matter relates, see generally S v Davy 1988 (1) ZLR 386 (SC) and R v Stainer 1956 R & N 199.  In casu it was submitted for the appellant that he relied on the advice of the College Principal.  It was not clear what advice he was given.  However what is clear from the record is that appellant did some work for three “clients’ and charged certain amounts that he was paid.  The work classified as income generating projects was subject to the respondent’s Production and Pricing Policy Circular of 2011.  The circular allowed institutions to conduct income generating projects presumably using some of the College resources.  The circular had a standard pro rata basis of sharing the income generated.  This was meant to be an incentive for staff members.  Appellant, by failing to declare the income generating projects prejudiced the respondent.  According to appellant he paid overhead costs for the first two jobs.  By that conduct he claimed the principal of the college became aware of the private jobs he conducted and did not question.  This was the basis of the defence that he appellant had been adviced by the principal.  Alternatively that by such conduct not to question appellant the principal gave appellant tacit authority to continue conducting private jobs.  My view is that the facts do not support the appellant’s case.  It was not shown that the principal directly received the said overheads appellant claimed to have paid.  The appellant did not take a positive step to inquire with the principal on how to deal with private jobs conducted using college resources.  It was not even shown that the principal was aware of the appellant’s private jobs.  On the other hand the respondent’s version is more plausible that the third ‘job’ led to an investigation that uncovered the first two private jobs by the appellant.  Appellant failed to produce proof of the payments he allegedly made.  Appellant’s contention that he relied on the advice of the principal of the college is misplaced.  There was no advice from the said authority.  The defence of ignorance of law is therefore not available to appellant in this case.  There was no tacit authority given.

In a relationship such as this  being an employer-employee relationship it would seem that it is an implied term of the contract that the employees familiarise themselves with policies and regulations relating to their work.  This is to give the contract business efficacy making it effective and workable.  It was expected of appellant to be aware of the provisions of the Production and Pricing Policy circular of 2011.

In any event the appellant admitted during the disciplinary proceedings that he did not pay the overheads for the work he did on the first two occasions.  Surprisingly on appeal before this court the appellant submitted otherwise.  There was no allegation that the admissions made were improperly made or were made under duress.  The appellant clearly was not candid with this court.  The appellant admitted the fourth and fifth charges and these were not subject of appeal.  The appeal is totally devoid of merit and should be dismissed.

Accordingly the following order is made.

The appeal be and is hereby dismissed with costs.

MUNYARADZI GWISAI & PARTNERS, Appellant’s legal practitioners