Adam Howard Gwete & Another v Ministry of Transport, Communications & Infrastructure Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/126/14
HELD AT HARARE 18TH FEBRUARY 2014
CASE
NO
JUDGMENT NO LC/H/126/14
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/126/14

HELD AT HARARE 18TH FEBRUARY 2014		CASE NO LC/H/749/11

& 14TH MARCH 2014

In the matter between:-

ADAM HOWARD GWETE &ANOTHER			Appellants

And

MINISTRY OF TRANSPORT, COMMUNICATIONS		Respondent

& INFRASTRUCTURE DEVELOPMENT

Before The Honourable L.M. Murasi, Judge

For Appellants		In person

For Respondent		No appearance

MURASI, J:

Appellants are employed by Respondent in the Department of Roads at the Mt Hampden Camp.  The facts show that 2nd Appellant permitted 1st Appellant to drive a motor vehicle belonging to Respondent and the 2nd Respondent was involved in an accident leading to misconduct charges being levelled against the two.  Appellants are aggrieved by their being found guilty and have appealed to this Court in terms of section 51 (1) of the Public Service Regulations, 2006, Statutory Instrument 1 of 2000.

It should be pointed out from the outset that Respondent was not represented even though the documents show that the process was hand-delivered.

A brief consideration of the facts shows that Appellants were informed of the hearing to charge them in September 2010.  The letter to 2nd Appellant informed her that:

“Accordingly you Grace Nyagwande are charged with misconduct in terms of section 44 (2) (a) of the First Schedule (Section 2) of the Public Service Regulations 2000 as amended…”

The charge was similar in respect of 1st Appellant.  The letters go on to cite the relevant portions of the charge to be relied upon.

At the conclusion of the hearing 1st Appellant was informed that:

“I have therefore found you guilty of misconduct in terms of section 44 (2) as

read with paragraph 13 (c) of the First Schedule (Section 2) of the Public Service Regulations as amended.

I have therefore ruled in terms of section 50 of the same regulations that you shall meet 50% of the repair costs.”

2nd Appellant was informed that:

“I have ruled in terms of section 46 (1) (b) of the Public Service Regulations 2000 as amended and found you guilty of misconduct as charged for authorising Mr A.H. Gwete to drive vehicle R.01 SED…”

2nd Appellant was also ordered to meet 50% of the repair costs.  It should be noted that when the Disciplinary Authority pronounced the guilty “as charged”verdict, the charge also referred to paragraph 13 (c) of the Regulations.

Appellants raised several issues in their grounds of appeal.  These are summarised as follows:

That the charge was fatally defective.

That they were denied legal representation.

That the hearing Committee was not properly constituted.

That there was no evidence of negligent driving.

That there was no evidence of the quantum of damages suffered by Respondent.

The Court will examine the issue pertaining to the charge first.

Appellants were charged with breaching paragraph 13 (c) of the Schedule.  The paragraph reads as follows:

“13 (c) wilfully giving false or incorrect evidence or information or failing to

disclose material evidence or information in relation to any inspection examination or inquiry in terms of these or other regulations in terms of the Act.”

Having regard to the facts of the matter, was this the proper charge to be preferred against the Appellants?  Certainly not.  The 2nd Appellant was alleged to have permitted 1st Appellant to drive a motor vehicle which was later involved in an accident.  The charge and the facts are clearly not consistent. The verdict returned is in respect of the same charge.  The Disciplinary Authority obviously fell into error in choosing that particular charge having regard to the facts of the matter.  The charge cannot be sustained on the facts of the matter.  This was stated in Macfoy v United Africa Co. Ltd  [1961] 3 All ER 1169 (PC) at (1171):

“If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad.  There is no need for an order of the court to set it aside.  It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so.  And every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.”

The charge preferred against the Appellants could not hold and contain the evidence that was adduced.  They were not in tandem.  The Court finds that the proceedings were faulty as a result and should be set aside. It will not be necessary to examine the other grounds of appeal.

In the result, the Court finds that the appeal succeeds and the verdict  andpenalty of the Disciplinary Authority in respect of the two Appellants are accordingly set aside.