Roni Masekesa v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/472/14
HELD AT HARARE 31ST OCTOBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/472/14

HELD AT HARARE 31ST OCTOBER 2013		CASE NO LC/H/162/13

& 21ST  JULY 2014

In the matter between:-

RONI MASEKESA						Appellant

And

PUBLIC SERVICE COMMISSION				Respondent

Before The Honourable B.T. Chivizhe, Judge

Appellant			In person

For Respondent		Mr R Hove, (Civil Division, Attorney General’s Office)

CHIVIZHE, J:

The matter was placed before me as an appeal against a determination by the Public Service Commission handed down on 30 November 2012.

The material back ground facts to the matter are as follows;

The appellant was employed as a Senior Accountant in the Department of Research and Specialist Services under Ministry of Agriculture, Mechanisation Irrigation Development.  He was initially discharged from service in March 2009 following a disciplinary hearing.  After an appeal to the  Labour Court the decision of Public Service Commission was set aside.  The respondent was directed to reinstate appellant and conduct a re-hearing.  He was on 26 March 2012 again discharged from service after he was found guilty of an act of misconduct in terms of section 44 (2) (a) of the Public Service Regulations 2000 as read with paragraphs 2, 3 , 8 and 24 of the First Schedule (section 22 of the same charges).  The allegations were, inter alia, that he had  opened and subsequently withdrew 8974.16 euros from a foreign currency account with the Commercial Bank of Zimbabwe without following the necessary procedures and without obtaining the requisite authority, that he had purchased a labtop amounting to $6.5 billion dollars without the Head of Department’s knowledge or authority, that he had flouted tender procedures on the procurement of departmental stationery; that he failed to report to his superiors when he lost the departmental labtop on 11 September 2008, that he failed to produce and submit to donors financial reports as per Project Requirement.

The appellant, exercising his rights under the Regulations, thereafter placed an application for review before the Public Service Commission.   The Public Service Commission on the 30th  November 2012 advised appellant of its decision confirming the earlier decision by the disciplinary authority to discharge appellant from the service.

Aggrieved the appellant noted the present appeal with the Labour Court.  His basis for appealing is outlined in the notice of appeal to be as follows;

In limine

The respondent did not abide by the Labour Court Judgment No LC/H/248/11.  The rehearing was done after the prescribed 30 day period had lapsed and there was no extension of such period granted by a court of law.  The proceedings and the determination of the respondent, therefore, are at law, null and void.  I proceeded under protest.

The existence of two different draft audit report(s) for the same audit exercise, the tampering of the contents effectively prejudicing me in defending the allegation that I opened a bank account without treasury authority, the inconsistency with Section 14 of the Project Agreement, flat lies contained therein renders the draft audit report(s) defective.  The allegations on the Misconduct Charge Letter dated 30 December 2008 are founded on this defective draft audit report(s) and therefore have  no effective in law.

The respondent grossly misdirected by delegating the Disciplinary Authority function to the same Head of Ministry who was involved with the case before.  Substantive fairness could not have been reached in this case considering the circumstances.  The Disciplinary Authority had a defined position.  I raised the objection, in writing, of the Disciplinary Committees of the aborted and the hearing that took place acknowledged receipt of the objection.  I proceeded under protest.

The respondent grossly erred in holding that I was aware or made aware of the Treasury Instruction.  The respondent never gave me or made me aware of the Treasury Instruction to execute my duties.

The respondent fatally erred when it failed to prove its allegation.  The Bank Account Opening Application Form to prove that I opened the bank account was not tabled in the hearing.

The respondent fatally erred in finding that it was my duty to seek treasury authority when opening a bank account.  My job description never had such a duty.  The Treasury Instruction and the draft Audit Report DAR4D/2008/01 clearly state those responsible for such duty.

The respondent fatally erred in making a finding that I made an application for the withdrawal of the 19 000 euros without following accounting procedures, thus obtaining relevant support documents and completing vouchers to authorise the payment.  I was never charged or given an opportunity to be heard on this allegation.  The finding was unprocedurally arrived at in contravention of S46 (4) OF Public Service Regulations, Statutory Instrument 1 of 2000, as amended that implicitly recognises the member’s right to be heard as envisaged by the audi alteram partem principle.

The respondent fatally erred in falling to specify how my actions specifically constitute misconduct acts in terms of paragraphs 2,3, 8 and 24 of the  First Schedule (Section 2) of the Public Service Regulations, as amended.

The respondent’s findings are bordered on victimisation, an unfair labour practice outlawed in a workplace.

The appeal was opposed by the respondent.

On the date of the hearing appellant raised two preliminary points which

he, in his grounds of appeal referred to as ‘points in limine’. The first ‘Preliminary point’ raised is that the respondent is in contempt of the Labour Court judgment issued on the 12 November 2011.  The respondent has dirty hands and therefore should not be granted audience.

The respondent’s submission on the point is that the point being raised emanating as it were from the respondent’s non-compliance with a court order is inappropriately raised in appeal proceeding.  The point should be more appropriately raised in an application for review.

The referred Labour Court decision (handed down on the 12 November 2011) to reads as follows;

“It is accordingly ordered as follows;

The proceedings are set aside;

The appellant remains on suspension on the same conditions

The respondent shall rehear the case including making a decision within 30 days (or such period as may be granted later) of the receipt of this order

If the respondent fails to hear the case within the prescribed period or such further period as may be granted on good cause shown, the respondent shall reinstate the appellant with effect from the default date, without loss of salary and benefits and shall be barred from taking any further disciplinary on the same charge.

If reinstatement in terms of paragraph 4 is no longer possible the respondent shall pay damages in lieu of reinstatement.  The parties may agree on the quantum of damages failing which each party may approach the court for quantification.

Each party to bear its own costs.”

The appellant’s submission on the first preliminary point therefore is

that the respondent is in contempt of the Labour Court judgment in that the respondent was supposed to have concluded the matter and handed down a decision within 30 days failing which respondent was to reinstate the appellant without loss of salary and benefits.  Further the respondent was to be barred from taking any further disciplinary on the same charges.  The 30 days due to expire on 6th  January, 2012.  The appellant submission is respondent having failed to conclude the hearing within 30 days and then failed to reinstate him the respondent was in contempt of this court’s order.  The purported  proceedings that respondent convened after the 6 January 2012 were therefore null and void as the respondent was technically barred as at that stage.

The respondent, through an affidavit filed by PSC Chairperson on the point is that the appellant contributed to the delay in the finalisation of the matter.  The appellant objected to the First Disciplinary Committee set up to hear the matter.  A new committee was then set up and the appellant then attended the proceedings of the Disciplinary Committee.

The appellant in his first preliminary point has raised an argument based on the dirty hands principle.  The dirty hands policy was set out with clarity in Associated Newspapers of Zimbabwe (Pvt) Ltd v the Minister of State for Information & Publicity and Ors 20004 (1) ZLR 538 (5).  The rationale for the rule being that a court of law cannot connive or condone open conduct  amounting to defiance of the law and that citizens are obliged to obey the law and argue afterwards.  On the basis of respondent submissions I was satisfied that the respondent was not in wilful defiant of the Labour Court order.  He therefore had no dirty hands before the court.

The second preliminary point raised by the appellant is that the respondent has placed before the court two different audit report one reference DARS/2009/01 and the other DAR4D/2008/01.  Although the audit was conducted by the same field auditors during the same period the respondent ended up with two draft audit reports which have inexplicable differences.  The differences are that the same audit was requested by two different persons i.e. Mrs Hikwa (for 2008 report) and Dr Mguni (for 2009 report).  The reasons for so requesting an audit are also different.  The findings and recommendations arising from each are also different.   It is important to note the 2008 draft audit report was later set aside by the Labour Court in 2011.  When the appellant noted his appeal to the Labour Court against the second conviction and penalty the respondent had abandoned the 2008 draft report and was placing reliance on the 2009 draft report.

The appellant submission is that in the absence 2008 draft audit report his case is prejudiced.  His suggestion is that the draft audit report should be placed before the court.  In the absence of the 2008 draft audit the court should find that the proceedings were null and void.

The respondent submission on the point is that it is correct that there are two draft audit reports one dated 23 December 2008 addressed to Mrs Hikwa.  The report was later however changed and addressed to Dr Mguni who was the Acting Director of DARS on 28 January 2009.  Because of the movement of Plant Protection Unit who were the owners of the project before audit under Quarantine Project Services Division to Agricultural; Research for Development DAR4D to from the Department of Regulatory Services Plant Protection however remained with DAR4D hence the reason why the auditors initially addressed the report to the Director DAR4D.  Dr Mguni was at the time head of PPRI but later moved to DARS as Acting Director.   He was still responsible for activities of CBAF resulting in the audit report being directed to him in 2009.

It was the respondent’s submission that the contents of the audit were however the same the only item that changed were the names of the recipient of the report.  In any event that aspect did not alter the elements of the charges levelled against the appellant which charges where proved by the respondent in the disciplinary proceedings.

Ruling

The appellant raises a valid preliminary point.  By his order in 2011 Justice KACHAMBWA ordered a rehearing of the matter based on the same allegations. The respondent was required to conduct proceedings afresh based on the same charges and the same evidence.  The respondent was not being asked to further investigate and find additional evidence because that would clearly be prejudicial to the appellant.  The respondent however in convening the second hearing relied on a different audit report.  That the reports are different is clearly obvious. That this was prejudicial to the appellant is also clear.  For an example whereas the recommendation under the first draft audit report of 2008 was as follows;

“Head of Department should ensure that treasury authority is sought in retrospect and this should follow for all projects running without authority in the department.”

The statement clearly seemed to exonerate the appellant’s conduct where it was alleged he opened a bank account without treasury authority. Clearly it cannot be argued that the findings/recommendation in the first draft audit  above  are the same as for the 2009 audit report which reads;

“unclear transaction in flow of funds into the project local account from Bernrill  Investments $15 billion.”

The findings recommendations are not identical to the findings/ recommendation in the 2008 draft audit report. On that basis clearly the respondent committed a fatal procedural irregularity.  The disciplinary proceedings are consequently null and void. They are a nullity.  Having come to this conclusion there will be no need for the court to delve into the merits.

In the circumstances the appeal ought to be allowed.

It is accordingly ordered as follows;

The second point in limine is upheld.

The appeal is consequently allowed with costs.

The second disciplinary proceedings convened by the respondent being null and void, the respondent is directed to reinstate the applicant without any loss of salary and benefits from the date of unlawful dismissal.

In the event that the reinstatement is no longer tenable the respondent shall pay appellant damages in lieu of reinstatement the quantum which is to be agreed between the parties failing which either party can approach the Labour Court for quantification.

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