Stephen Watyoka v Ministry of Public Works

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/471/13
HELD AT HARARE ON 16TH & 17TH OCTOBER 2013
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IN THE LABOUR COURT OF ZIMBABWE             JUDGMENT  NO   LC/H/471/13

HELD AT HARARE  ON 16TH  &

27TH SEPTEMBER, 2013                                          CASE NO LC/REV/H/74/11

In the matter between:-

STEPHEN WATYOKA						Appellant

And

MINISTRY OF PUBLIC WORKS					Respondent

Before The Honourable E. MUCHAWA, Judge

For Respondent: Miss T. Mashiri ( Legal Practitioner)

MUCHAWA, E:

This is an application for review. The applicant is employed by the respondent as an administration officer. He was charged with misconduct in terms of section 44 [2][a] of the Public Service Regulations 2000 as amended, following an investigation into the missing sanitary wares for Donax Enterprises (Pvt) Ltd at Harare Metropolitan Province. He was alleged to have violated paragraphs 2, 3 and 24 of the First Schedule (section 2) of the abovementioned regulations. Consequently he was found guilty and fined the sum equal to two months, salary which would be deducted over a twelve month period.

The applicant alleges gross procedural irregularities as follows:

The charge sheet does provide the material dates and time on which the goods were allegedly stolen.

He was advised of the theft about three months later from the date the theft was discovered.

It was not his responsibility to report the theft to the police as he was not made aware of the theft at the material time of the discovery of the theft.

Disciplinary proceedings were only initiated more than four years after the alleged offence therefore prescribed

It was not his legal duty nor was it communicated to him that he had a duty to guard the property in question as a security company was employed to do this.

The value of the stolen items was never quantified

The chairperson asked for mitigation before conviction hence the disciplinary committee was already prejudiced in favour of a conviction.

The respondent did not defend the civil claim in respect of the missing items resulting in payment of damages.

In response, the respondent claims and avers that it was the applicant’s improper, negligent, inefficient or incompetent performance of duties when he failed to properly account for or omitted to follow the laid down procedures for stores management when he was the administration officer which led to the goods being stolen at a date unknown to the respondent. Further he did not cause a report to be made to the police and failed to properly advise the then Provincial Public Works Officer of the event. The respondent further avers that in terms of the Public Service Regulations, acts of misconduct cannot be subjected to prescription laws. It is argued too that the applicant failed in his duties and obligations to ensure that he takes charge in the management of the Provincial stores leading to prejudice to the tune of 92 560 British Pounds.

In submissions, the respondent raised the question that there is no respondent in this matter as the Ministry of Public Works is not a legal persona. The applicant proceeded to make an application to substitute that with the Minister of Public Works  who in terms of the State Liabilities Act is the nominal defendant in all matters that involve the Ministry. This was granted.

The respondent also argued that the applicant has not disclosed a cause of action as his averments do not demonstrate that there are procedural irregularities. The authors Herbstein and Van Winsen, in Civil Practice of the High Court of South Africa, 5th edition at page 1271 clearly set out the distinction between what appeal and review proceedings are about. They say:

“The reasons for bringing proceedings under review or appeal is usually the same viz to have the judgment set aside. Where the reason for wanting this is that the Court came to the wrong conclusion on the facts or law, the appropriate procedure is by way of appeal. Where, however the real grievance is on the method of the trial, it is proper to bring the case on review.”

It is clear that of the grounds listed above as demonstrating procedural irregularities and setting a case for review, the applicant is in fact alleging that the Court came to the wrong conclusion on the facts and the law. The following grounds are therefore incompetent as grounds for review and are accordingly struck off. These are grounds 1, 2 3, 5, 6 and 8.

The following grounds are the ones that question the method of trial viz grounds 4 and 7. G. Feltoe in A Guide to Zimbabwean Administrative Law, Third Edition (1987) at page 23 states that in a review application the Court addresses issues of procedure as measured against principles of natural justice. Such principles embody fundamental notions of procedural fairness and justice and seek to ensure that decisions are only taken after fair and equitable procedures have been adhered to. In essence natural justice tries to guarantee that the parties who will be affected by decisions receive a fair and unbiased hearing before the administrative tribunals reach their decisions.

I will now proceed to consider the two grounds that qualify as grounds for review.

Proceedings were initiated more than four years later and should have been barred in terms of the Prescription Act.

I was referred to the Public Service Regulations, 2000, Statutory Instrument 1 of 2000 regarding the procedure before and immediately following an allegation of misconduct. Section 44 thereof provides that where a member is suspected of misconduct the disciplinary authority shall conduct or cause to be conducted an investigation. Section 44 (2) provides as follows:

“If, on completion of the investigations referred

to in subsection (1), It is found that an allegation of misconduct should be preferred against the member, the disciplinary authority shall, within a reasonable time after the completion of the investigation. (my emphasis)

Inform the member, in writing of the nature of the allegation against him, and call upon him to submit a written reply to the allegation within fourteen days.....................

c)  subject to subsection (5), refer the matter to a disciplinary committee for hearing in accordance with section 45”.

Section 45 requires the disciplinary committee to act within seven days in giving the member concerned seven day notice of hearing.

Though the Regulations do not prescribe at time frame within which a hearing must be concluded, the spirit exhibited in the provisions above and in keeping with principles of natural justice is that hearings must be concluded expeditiously and within a reasonable time.

In this case the alleged offence happened around May 2007 and the hearing was conducted in June 2011, more than four years later. This is clearly unacceptable and I find that the hearing was a nullity.

MAVANGIRA J in Rwodzi v Municipality of Chegutu HH-86-03 laid out the basic principles of the audi partem rule and one of the requirements is that a hearing must be timeous. She explains that this is meant to ensure that the facts are still fresh in the minds of the parties and witnesses when the hearing is held. Four years is too long a period for a witness to properly recall the facts.

I therefore find that the applicant succeeds on this ground of review. There is no need to consider whether the matter had prescribed and the second ground of review. In the circumstances I order as follows:

The decision of the Disciplinary Authority dated the 7th July 2011 be and is hereby set aside.

The penalty imposed on applicant be and is hereby quashed.

Respondent be and is hereby ordered to reimburse the applicant any money that has been deducted in pursuance of the determination of the Disciplinary Authority dated the 7th July 2011 within 60 days of this order.

Respondent shall pay the costs of this application.