Simbarashe S. Mambondiani v Ministry of Local Government & Urban Development

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/206/13
HELD AT HARARE ON 28th May, 2013
CASE
JUDGMENT NO.LC/H/206/13
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THE LABOUR COURT OF ZIMBABWE	         		JUDGMENT NO.LC/H/206/13

HELD AT HARARE ON 28th May, 2013	        		CASE NO.LC/H/205/07

In the matter between:

SIMBARASHE S. MAMBONDIANI				Appellant

And

MINISTRY OF LOCAL GOVERNMENT &

URBAN DEVELOPMENT 			  	     	Respondent

Before The Honourables E. Ndewere, President

Appellant	In Person

For Respondent	Ms R. Hove (Civil Division of the

Attorney General’s Office)

NDEWERE E.F.:

The Appellant called at his supervisor’s house Mr Tinarwo on Saturday 26th June, 2004 and told him that he wanted to travel to Hwedza to do a spot check of some deliveries. The supervisor authorised him to take a Mazda B 1800 PWD 59 SC but said he should be accompanied by a driver. The Appellant suggested that he be accompanied by another officer, Mr Muchadakuenda, since drivers were not available.

The two proceeded to Hwedza. Whilst at the Hwedza Depot, the Appellant decided to drive the lorry which was at Hwedza Depot to Marondera. No one authorised him to drive the lorry and in addition, he was not licensed to drive the lorry since his license was a class four (4) driver’s licence. Around 9.00 p.m. the two then left Hwedza Depot with Muchadakuenda driving the PWD 59 SC while the Appellant drove the lorry and they were driving fifty metres apart.

The Appellant and his colleague said on the way, Muchadakuenda was robbed of the PWD 59 SC by some car jackers who attacked them and took away the motor vehicle. The Appellant and his colleague said they did not sustain any injuries as a result of the attack, so they never visited a hospital.

The Appellant and his colleague said they then proceeded to Marondera, in the lorry and they reported the matter at Marondera Police Station. Their evidence was that they never thought of reporting at Hwedza Country Club police post which was 1.5 km from the alleged scene of the hijack or at Hwedza Police station which was 15 km away. Since their trip was to Marondera, they decided to make the police report at Marondera police station, which was 55 km away because they thought if they proceeded on their way, they could catch up with the car jackers who may end up abandoning the vehicle when it ran out of fuel.

When they got to their base, Appellant and his colleague were asked to submit written reports about the incident. They did not do so. When the Investigating Committee asked the Appellant why he had not yet submitted his report concerning the incident, the Appellant’s reply was that he had “failed to write the report as he was very busy and had maybe under estimated the value of his report.” During the Appeal Hearing, the Appellant actually said he did not see why he should have written a report because he was not the one driving the motor vehicle when it got stolen. The Appellant finally wrote a report on 31st January 2006 when the incident occurred on 26th June 2004.

In view of the above facts, on the 20th October 2006, the Appellant and his colleague were called to a Disciplinary Hearing for contravening the following Sections of the Public Service Regulations, 2000 First Schedule.

“2. Improper, negligent, inefficient or incompetent performance of duties.”

“3. Failure to perform any work or duty properly assigned, or failure to obey lawful instructions including circulars, instructions or standing orders issued by the Commission, the Treasury or the Accounting Officer.”

“9. Theft of, or failure to take reasonable care of or account for, or making improper or unauthorised use of State property or the property of any statutory body, statutory fund or local authority, including motor vehicles, or the failure to take adequate steps to ensure that reasonable care is taken of any such property, or failure to report at the earliest opportunity any loss thereof or damage thereto”.

At the end of the hearing the Appellant was convicted, and discharged from duty with effect from the date of receipt of the discharge letter, 28th March 2007. The sum of $36 000 being half of the replacement value of the vehicle (PWD 59 SC) which was stolen was to be recovered from the Appellant’s terminal benefits as part of the penalty.

The Appellant has appealed to this Court against the above determination. His grounds of appeal are as follows:

“1. 	Respondent erred in dismissing the Appellant in that:

(a)	Appellant was not the driver of the motor vehicle (PWD 59 SC)

(b)	Appellant arrived at the scene of the hijack after the motor vehicle (PWD 59 SC) had already been hijacked and was already stolen.

2.	The Respondent has failed to clearly define the reasons for discharge in that:

(a)	Respondent does not state what exactly Appellant’s contribution or duty was as far as the hijack of PWD 59 SC. Particularly so in view of the fact that:

Appellant was neither a passenger nor the driver of that motor vehicle (PWD 59 SC).

(b)	When the initial report was made to Marondera Police Station, Appellant is a witness in the matter and not an accused.

3.	Respondent erred in penalising the Appellant for the loss of the motor vehicle (PWD 59 SC). There is no clear definition of what sort of action Appellant was expected to take against the hijackers to prevent the hijack.

4. 	Respondent made a determination to discharge Appellant without regard to the facts of what happened as regards the hijack of the motor vehicle (PWD 59 SC). The actual driver of the motor vehicle on the day in question is still employed by Respondent to this day.

5. 	The Respondent erred in charging Appellant at all as the motor vehicle (PWD 59 SC) Appellant was neither a driver nor passenger in that motor vehicle, was never charged”

With regard to Grounds of Appeal 1(a), 2(a) and 5 whilst it is true that the Appellant was neither the driver nor a passenger of vehicle PWD 59 SC, it is clear from the facts of the case that the Appellant initiated the trip.  Over the weekend, he requested and was granted the authority to go to Hwedza with the motor vehicle in question. His colleague was simply asked to accompany him since official drivers were not available. So the motor vehicle was actually released to the Appellant’s custody.  The Appellant’s blameworthiness is increased by the fact that on the return trip, he abandoned the motor vehicle which was issued to him for the trip and decided to driver a lorry, without authority, without a licence. If the Appellant and his colleague had travelled together, the probabilities are that the vehicle would not have been stolen. In fact, the Appellant’s own evidence was that the thieves stopped assaulting his colleague when they saw him approach them from the lorry, meaning that if they had travelled in one car from the outset, they would have assisted one another on how to handle the situation when they were approached by the robbers.

Thirdly, as a civil servant, even if the motor vehicle had not been issued to him, he would still have had a duty to take adequate steps to protect it since the two of them were travelling together and from their evidence, were a mere 50 metres apart..

With regard to the rest of the Grounds of Appeal, a close look at the charges for which the Appellant was convicted clearly show that the Disciplinary Authority proved its case against the Appellant. Paragraph 2 of the 1st Schedule is against “improper, negligent, inefficient or incompetent performance of duty”. The Appellant, by driving the lorry, without authority and without a license, is guilty of improper, negligent, inefficient or incompetent performance of duty. By abandoning the car issued to him and deciding to use another unauthorised vehicle, which he was not licensed to drive, he contravened paragraph 2The same applies to his refusal to write a report following the incident. The refusal to write a report is improper, negligent, inefficient and incompetent performance of his duty as a civil servant who had just lost a valuable asset issued to him by the employer. Even if he thought he was a mere witness, he should still have written a report.  Witnesses do write reports to the police, what more to one’s employer, when one has caused or was a witness to the loss of a motor vehicle.

Paragraph 3 of the First Schedule is a charge of failure to perform any work or duty properly assigned, or failure to obey lawful instructions, including circulars, instructions or standing orders issued by the Commission, the Treasury or the Accounting Officer. This charge was proved against the Appellant in that he himself admits that his assignment was to go to Hwedza, with a particular vehicle and return with the same vehicle, but when he got to Hwedza he decided, without any authority, to take another vehicle he was not authorised or licensed to drive. He also failed to obey lawful instructions in that the standing regulations were that by 6.00 p.m. all motor vehicles should be safely parked at their stations, and not on the road; yet he and his colleague left Hwedza around 9.00 p.m., thus putting the motor vehicles in danger by virtue of being on the road at that time of the night. He admits that he did not write a report after he was instructed to write one until about two years later. All that is failure to obey lawful instructions. The defiance of lawful instructions is serious misconduct which warrants dismissal. There will be chaos at the workplace if employees are allowed to get away with cases of wilful disobedience to lawful orders. The cases referred to by Respondent’s Counsel are relevant. In ZUPCO VS.MABANDE AND ANOTHER 1998 (2) ZLR 150 the dismissal of a driver who had defied a lawful instruction by the employer was upheld by the Supreme Court. In PTC vs. CHIHORO 1997 (1) ZLR 148 SC, the Court upheld the dismissal of a postman who had defied lawful instructions.

Paragraph 9 is a charge for making improper or unauthorised use of state property, or theft of, or failure to take reasonable care of or failure to take adequate steps to ensure that reasonable care is taken of state property. This charge too was satisfactorily proven. The unauthorised use of the lorry, driving it without a license, abandoning an assigned vehicle are facts which were admitted by the Appellant. The failure to report to the nearest police station in Hwedza and the failure to write a report of the incident timeously are facts which were admitted by the Appellant. Even being on the road by 9.00 p.m. is a failure to take adequate steps to ensure the safety of the motor vehicle in question.

So clearly, the Disciplinary Authority proved its case against the Appellant and it properly arrived at the decision to convict him of the acts of misconduct and to discharge him from service. There was no misdirection whatsoever on the part of the Disciplinary Authority.

This Court has no choice but to dismiss the appeal and confirm the Disciplinary Authority’s decision, with each party paying its own costs.

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