Tawanda Antony Mawundike v Minister of Finance & Economic Development & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/46/2020
HARARE, 3 OCTOBER 2019
CASE NO. LC/H/530/16
AND 14 FEBRUARY 2020
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IN THE LABOUR COURT OF ZIMBABWE  	            JUDGMENT NO. LC/H/46/2020

HARARE, 3 OCTOBER 2019  				CASE NO. LC/H/530/16

AND 14 FEBRUARY 2020

In the matter between:

TAWANDA ANTONY MAWUNDIKE					APPELLANT

versus

MINISTER OF FINANCE & ECONOMIC

DEVELOPMENT								1ST RESPODNENT

PUBLIC SERVICE COMMISSION					2ND RESPONDENT

Before The Honourable Makamure J

For the Appellant			Mr N. F. Kambarami (Legal Practitioner)

For the 1st – 2nd Respondents 		Mr K. Chimiti (Legal Practitioner)

MAKAMURE J:

This is an appeal from the decision of the respondents who dismissed appellant from employment following disciplinary proceedings. An order dismissing the appeal was made. Reasons were to follow. These are they.

FACTS

The appellant was employed by the 2nd respondent as a Chief Economist within the Ministry of Finance and Economic Development (1st Respondent). On 10 June 2014 the 1st respondent failed to process a cash request for the amount of US$465 454-24 due to insufficient funds. Investigations were instituted. It was discovered that the appellant’s ‘profile’ was used to release a total of $240 000-00 in two batches of US$150 000-00 and US$90 000-00 respectively. It is as a result the release of the two batches that the cash transaction failed. The said money was released under fiscal year 2013 and yet this was a 2014 transaction. The said money was destined for an entity called Stanax Enterprises (Stanax). On the same day an accountant with the Ministry of Transport and Infrastructural Development prepared a Corporate Payments Report for the sum of US$240 000-00 in favor of Stanax. Processing to pay the money was done. However, there were no documents from the 1st respondent supporting the transaction.

What was curious was the coincidence between the processing of the release of funds from the 1st Respondent and the processing of documents by an accountant in the Ministry of Transport & Infrastrural Development. As noted earlier there was no authorization or supporting documents from the appropriate superior within the 1st respondent for the appellant to release the funds in question. The facts pointed to the appellant’s involvement in an attempted fraud of the sum of US$240 000-00. This led to the appellant being charged for:

“(i)	Improper, negligent, inefficient or incompetent performance of duties;

(ii)	Failure to perform any work or duty assigned, or failure to obey lawful instructions, including circulars, instruction or standing orders issued by the Commission, the Treasury or the Accounting Officer;

(iii)	Corruption or dishonesty as provided in the schedule.

(iv)	Any act or omission which is inconsistent with or prejudicial to official duties, including

the abuse of authority.”

These are violations of paragraphs (2), (3), (13) and (24) respectively of the first schedule of the Public Service Regulations, 2 000. The charge letter specified that:

“The grounds on which the charges are based are that on 10 June 2014 working in connivance with officers in the Ministry of Transport and Infrastructural Development, you unlawfully uploaded for release in the Public Finance Management System an amount of US$240 000-00 in two batches of US$150 000-00 and US$90 000-00 at 1503hours and 1508 hours respectively.

You had no supporting documents or instructions authorizing such payment and further, the Ministry of Transport and Infrastructural Development did not owe any such amount to Stanax Enterprises (Private) Limited.”

Evidence

A disciplinary hearing was conducted. At the commencement of that hearing a point in limine was taken on behalf of the appellant (then respondent) to the effect that there was unnecessary splitting of charges. The preliminary issue was dismissed and the hearing continued with the four charges. The appellant denied all the charges.

It was established during the hearing that indeed the process to facilitate the release the funds was done using the appellant’s profile. In his defence the appellant suggested that maybe there was somebody who tampered with his profile. However, according to the evidence led, a person cannot have access to another’s profile unless the two agree to share “or when one leaves the environment open to someone.” The evidence was that:

“If you log on and leave your office open and someone who have (sic) knowledge may continue to transact under that profile. That is possible if the owner negligently leaves their machine unattended.” (Emphasis added).

The appellant clarified the position when he responded to the following question:

Q:	(Committee) : Are you aware of the consequences surrounding your job and the risk of leaving your computer not being logged off. Were you used to doing that?

A:	(Mawundike/Appellant) : Yes that used to happen there are several colleagues in our department and the moment I walked out of the office, someone will have access to my laptop. (My underlining for emphasis)

Analysis

I find the above quite revealing. The evidence shows that a profile is assigned to one person. Such profile is confidential and should not be shared. However, the appellant [and, as he says, and his colleagues] chose not to maintain the confidentiality. The impression is that anyone in the office had access to their colleagues’ computers. This appears catastrophic in a Ministry which runs the finances of the whole country. If indeed what the appellant said is what is happening in that very crucial National Office, the country is in jeopardy of its finances being abused.

Whether the appellant tries to blame someone else or not, the amount of blameworthiness on his own part by negligently leaving his own credentials open for use by anyone in the office is very high. If it was the intention of the 1st respondent to have all its staff do as they please with the release of finances, there would not have been any procedures, for example, assigning profiles to individuals. The negligence exhibited by the appellant is reprehensible. It is serious dereliction of duty.

At the conclusion of the disciplinary proceedings the appellant was found guilty of/ “improper, negligent, inefficient or incompetent performance of duties” and/ “failure to perform any work, or duty properly assigned, or failure to obey lawful instruction, including circulars, instructions or standing orders issued by the Commission, the Treasury or the Accounting Officer.”

These are violations of paragraphs 2 & 3 respectively of the Regulations. He appeals to this court on the grounds that, there was no sufficient evidence to show that he performed his duties negligently and failed to safeguard his password and profile; the charges were defective and did not inform the appellant of the nature and extent of the offence he was facing; the dismissal of the preliminary issue raised was prejudicial to him as the appellant.

The evidence was clear, appellant would leave his laptop and anyone was able to access it. Such conduct constitutes gross negligence. There is no way anyone can say that they performed their duties diligently when they leave their tools of trade to be accessed by all and sundry. This means that the appellant was reckless as to the consequences of his conduct. Appellant cannot distance himself from what happened on 10 June 2014. Either he is the one who did it OR someone else with the conscious knowledge of the appellant, processed the payment. Fortunately, it was discovered just in time before full execution of the process. The other option which I think is even worse and untenable, is that due to the lax manner in which the office in question is operated, it did not matter at all to the appellant, as to whether or not he knew that someone could access his laptop and process illegal payments to the detriment of the State. He simply did not care. Thus operating under such circumstances is to say the least a hazard to the Republic of Zimbabwe. It is hoped that the fate of the appellant will sound warning shots. Such warning shots should deter would be offenders so that they know that the long arm of the law will eventually get to them. The appellant lost his job. I hope that some measures have since been put in place to safe guard the interests of the state. It is frightening to contemplate that the nation’s interests are in the hands of people like the appellant who despite the sensitive and crucial nature of their posts, they choose to have a lackadaisical approach towards work.

The appellant is aggrieved by the sentence. As far as the area of sentence is concerned, an appellate court should not interfere with the decision of the lower tribunal unless if there has been a misdirection by the earlier tribunal in the exercise of its discretion. In the case of Christopher Samson v Windmill (Private) Limited SC 7/15, the Supreme Court held that:

“The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a decision. Barros and Anor v Chimphonda 1999 (1) ZLR (1) ZLR 58 SC; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670 D.”

See also Passmore Malimanjani v Central Africa Building Society (CABS) SC 47/07; Vimbai Mbisva v Rainbow Tourism Group Limited t/a Rainbow Hotel and Towers SC 32/09. In Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60 – 03 the Supreme Court held that:

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

In the present matter the employer is the Government of Zimbabwe, but, even if the employer had been a small entity, the conduct exhibited by the appellant would still be unacceptable. The 1st respondent is not a small entity. It runs the finances of the nation. It can only do so through qualified and duty conscious personnel. Appellant happened to be one of those so charged. His conduct falls far below the standard of a person charged with such a massive responsibility. It is hoped that whoever else holds responsibilities like the appellant, will not emulate the appellant but will safeguard the interests of the State and ensure that national funds are not given to bogus institutions at the expense of the generality of the people of Zimbabwe.

That having been said, I find absolutely no merit in the grounds of appeal. It would appear that the appellant was on a fishing expedition to see whether or not anything positive would come out as a result of this appeal. The appeal cannot succeed.

In the result, it is ordered that the appeal be and is hereby dismissed with costs.

Machiridza Commercial Law Chambers, Appellant’s Legal Practitioners

Civil Division of the Attorney General’s Office, Respondents’ Legal Practitioners