Fortune Makumbe v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/177/23
HARARE, 29 MARCH, 2023
CASE NO. LC/H/1131/22
AND 28 JUNE, 2023
In the matter between: -
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 29 MARCH, 2023
AND 28 JUNE, 2023

In the matter between: -

Fortune Makumbe
Appellant
Versus
Judicial Service Commission
Respondent

Before The Honourable L. Hove, Judge:

For : In person
Appellant
For Respondent : Mr. A. Mugandiwa

HOVE J:

The appellant was employed by the Judicial Service Commission (the respondent) as a court interpreter. He was found guilty of an act of misconduct and he was dismissed. This is his appeal against his conviction and penalty.

Factual background:

The appellant was allocated a apartment in Mbare. He was then stationed in Harare. He was transferred to Plumtree and later transferred again to Mwenezi. He was advised on several occasions to move out of the Mbare apartment to make way for other of respondent's employees who were stationed in Harare and needed that accommodation.

He refused to vacate the apartment. One of his arguments is that he had a family in Harare which still needed to use the apartment. The responded eventually charged him with ‘failure to obey lawful instructions including circulars, instructions or standing orders issued by the commission, the treasury or the secretary or delegated authority’.


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The specific allegations were:

1. While he was employed by the Judicial Service Commission as court interpreter and stationed at Harare High Court, he was allocated an apartment, number 2 at Mbare police camp. The apartment is meant to benefit Judicial Service Commission employees currently working in Harare Province to enable them to attend work within the province.

2. On 1 December 2021 he was transferred from Harare High Court to Plumtree Magistrate's Court and subsequently to Mwenezi Magistrate's Court.

3. Having been transferred, the expectation was that he would move out of flat number 2 at Mbare police camp to allow other members to occupy the apartment in line with the purpose for which the apartments are reserved.

4. He instead left his family occupying the apartment for up to 8 months after his transfer.

5. He was verbally advised by the chief interpreter Mr. E. Ncube of the need to vacate the apartment.

6. He was further verbally directed by the Provincial Head, Masvingo Mr. Gwitima in May 2022 of the need to vacate the apartment by 31st of May 2022, a directive which he ignored.

7. Another verbal notice was given to him in early June 2022 after it was discovered that he had ignored Mr. Gwitima's May 2022 verbal notice, but he again failed to vacate the apartment.

8. He was again ordered to vacate the apartment by the 30th of June 2022 by Mr. Gwitima, but he did not. This was followed by a written notice to vacate the apartment by the 31st of July 2022, the notice was dated 22nd July 2022 but he did not comply.

9. In total, he was given four notices to vacate the apartment but he did not vacate.

10. His conduct, amounted to a failure to obey lawful instructions and therefore in contravention of section 47 (2) (b) of the Judicial Service Regulations, 2015 (the Regulations) as read with paragraph four of the third schedule of the Regulations.

Investigations

The responded caused an investigation to be conducted into the matter and the appellant was phoned in May and instructed to vacate the apartment by the provincial Head Masvingo, Mr. Gwitima. He was instructed to vacate the apartment by 31st May 2022. In spite of undertaking to heed the instruction, the appellant did not. This prompted the Provincial Head to call him in June 2022. The appellant said he would vacate by 30 June 2022, but again he failed to vacate.


The respondent then gave the appellant formal notice to vacate by 31 July 2022. The member did not vacate. He argued that he needed time up to the end of December to transfer his child from the nearby school to a school near his new station.


On 8 September 2022, the appellant was charged with an act of misconduct for failing to vacate the apartment in Mbare.

The appellant’s position

The appellant alleged that the transfers from Harare to Plumtree and then to Mwenezi were "illegal".

His transfer violated section 12 (3) of the Regulations in that he was given only 7 days to transfer to Plumtree. He submitted that within 2 weeks of his transfer to Plumtree, he was given six days within which to transfer to Mwenezi. The responded required him to use the same budget for the second transfer which he had almost exhausted in the first transfer. It was submitted that this was in violation of the respondent’s regulations. He was also not given an opportunity to make submissions as regards the transfers.

He said that the procedure adopted during the disciplinary proceedings, were *ultra vires* the enabling regulations in that the Chief Magistrate could not discipline him in terms of the governing regulations. The power to discipline was vested in the commission itself or the secretary and his head of Department.

The Chief Magistrate was not designated as a Disciplinary Authority.

The appellant also alleged that he was being victimized. He also alleged that his constitutional rights were being violated.

The defense to the allegations

The appellant initially argued that he had not breached any of the terms and conditions of his contract of employment. He submitted that the instruction was actually an illegal one. He further submitted that the rules of natural justice and the right to fair labour standards were being violated. He argued even further that he was entitled to the same protection accorded to everyone in terms of the Constitution.

He denied that the apartment he was occupying was reserved for the respondent's employees stationed in Harare. The employee argued that the instruction fell outside the ambit of labour law but it was merely administrative.

The decision appealed against.

The disciplinary Authority considered the above issues among several other issues raised and found the appellant guilty and discharged him from service.

Grounds of appeal

The appellant being aggrieved appealed to this court and his grounds of appeal are to be considered ad seriatim.


Ground of appeal number 1:
The disciplinary authority misdirected itself by handing down the guilty verdict of dismissal from the service in terms of section 53 (1) (a) of the Judicial Service Regulations 5.1.36 of 2015 on the basis that the appellant failed to obey a lawful instruction including seculars or standing orders issued by the commission, the treasury or the secretary or delegated authority as defined in section 47 (2) (b) of the Judicial Service Regulations 2015, as read with paragraph 4 of the third schedule to the regulations. The respondent's determination, with respect, lacks the appreciation that a lawful instruction envisaged in the Judicial Service Regulations does not relate to issues of accommodation which do not fall within the ambit of operations of the Judicial Service Commission. A lawful instruction is duly reasonable when on duty and not otherwise.

This ground of appeal is not clear and precise. But the respondent has not put that in issue, preferring rather to deal with the matter on the merits.

This ground of appeal is alleging that the Judicial Service Commission (JSC) could not regulate affairs to deal with Government accommodation. The JSC does not have the mandate or authority to regulate and issue instructions in relation to government accommodation. The appellant argues that the instruction given him to vacate was not lawful.

It is not in dispute that the appellant applied to the respondent for accommodation in 2011. In 2015 he was allocated the apartment at Mbare Police Camp by the respondent. He was based in Harare as at the time of the allocation. During the hearing however, the appellant stated that the respondent had the right to issue the order but it was not done properly. This admission settles the dispute raised in ground of appeal no.1. Once an admission is made there is no need to lead evidence on the admitted point. The court accepts on the basis of the admitted point that the responded had the right to order him to vacate the flat that it had allocated to him during his tenure as an employee in the Harare Province. Its instruction was not unlawful. This is the import of the admission made during the hearing by the applicant when he admitted that JSC had the right to order that he vacates the apartment. The court cannot ignore the admission made. It is conclusive of the issue or facts admitted. See in this regard the Supreme Court decisions in the cases of Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12 and DD Transport (Pvt) Ltd v Abbot 1988(2) ZLR 92. These two cases discussed formal admissions made in pleadings but I am of the view that a formal admission made in court during the hearing should have the same effect.

Ground of Appeal number 2
The disciplinary authority further misdirected itself by dismissing appellant’s defense that the misconduct or charge being preferred on him does not constitute an offence in the contemplation and context of law in particular, all terms and conditions of employment with the respondent and its regulations 5.1.30 of 2015, Judicial Service Regulations and that the alleged lawful instruction by the employer is actually illegal and illegal in both legal substance and its procedure. The respondent erred in law and fact by failing to realize that the instruction issued to the appellant is grossly unreasonable and un executable in all circumstances.


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The instructions issued was for the appellant to vacate the apartment issued to him by the Judicial Service Commission the appellant’s argument is that since the property is a government property, the respondent could not lawfully order him to vacate a property which did not belong to it. Further, it was argued, the instruction was grossly unreasonable and un executable.

The government property in question was under the respondent’s management and control. The appellant applied to the respondent and was allocated the property. The property was reserved for respondent’s employees employed in the province. It cannot be grossly unreasonable to ask an employee who has been transferred to another province to vacate the property allocated to him by virtue of being respondent’s employee within the province. The appellant has not demonstrated why such an instruction, under the circumstances of his case, can be said to be grossly unreasonable. Again, it has not been shown why the instruction was incapable of being enforced. The appellant has already admitted that the respondent could issue the instruction for him to vacate. The second ground of appeal is thus without any merit.

In any event, this court, sitting as an appellate court, cannot interfere with findings of fact made by a tribunal of first instance. In **Unifreight Limited v Lington Mademba SC 6/18** the Supreme court stated that,

“the appellant also invited this court to set aside the decision of the court a quo which was based on findings of fact. It is trite that for an appellate court to interfere with the Judgement of a court a quo based on factual findings, gross misdirection must be alleged and established. The case of **Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (5)** states in this regard as follows;

‘in other words, the decision must have been irrational, in the sense of being outrageous in its
Defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion’”

In casu no gross misdirection has been demonstrated. There is thus no basis for this court to interfere with factual findings.

**Ground of appeal number 3**

The disciplinary authority further misdirected herself by putting housing related issues in the context of the charge considering the appellant employment contract and the regulation do not regulate issues of housing.

An employee has a common law duty to respect and obey his or her employer’s orders. Lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority. The appellant had a duty to obey the respondent’s lawful instructions.
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The respondent’s instruction was related to the character and capacity of his contract of employment.

Though not part of the actual contract of employment, it was something that was incidental to his employment with the respondent. The respondent had not undertaken to provide accommodation to its employees but both parties had deemed it necessary for the respondent to liaise with the government for government apartments to be specifically set aside for respondent’s employees and the appellant had applied for such accommodation from his employer. The employer allocated the apartment as soon as one was available. The parties thus agreed to extend their employment relationship to include issues of accommodation. It was therefore an issue that existed between the parties by virtue of their employment relationship. It was also understood between the parties that the respondent regulated and managed the government apartments for its benefit. The appellant’s duty to obey the instructions therefore extended to the housing issue. There is thus no merit in this ground of appeal. See in relation to an employee’s duty to obey lawful orders, the case of **Innscor Africa (Private) Limited v Terrence Gwatidzo SC 5/25.**

**Ground pf appeal number 4**

The disciplinary authority again misdirected itself when they dismissed appellant after admittedly agreeing that there is no written, stated nor proven law, regulation or provision of the respondent that is known to the offender or to any provision in the regulations that says such housing flats/ apartments are reserved for employees stationed in Harare only nor is there any tenant forms indicating that an employees is not allowed to remain in the accommodation allocated to him or her whilst working in a particular province. The respondent grossly erred at law by failing to recognize that the appellant’s tenancy at Mbare Police Camp is regulated by a lease agreement between appellant and the Ministry of Local Government which lease is still extant.

The respondent managed the properties and availed them to its employees in accordance with its policies. Its role as the manager of those apartments was not disputed, so, it was within the employer’s right to manage the apartment in accordance with its policies. If the appellant was aggrieved by the employer’s instruction, he ought to have raised a grievance with respondent and not deliberately disobey the employer’s instruction. If he was of the opinion that his tenancy was tied to the lease agreement with the Ministry, he could have obeyed and later raised this issue with the employer in such a manner so as not to give the impression that he neither respected his employer nor obeyed its instruction. As was stated in the **Innscor** case (supra) the existence of a moral excuse, or in this case a perceived right, for such disobedience does not make the duty to obey any less willful or the order any less lawful. See also the case of **Turner v Mason (1845) 14 M & W 112; 153 ER 411** where the court held that the existence of a “genuine” need for absence was not sufficient to justify disobedience of the employer’s order. There is therefore no merit in this ground of appeal.

**Ground of appeal number 5**


The respondent grossly erred at law by failing to appreciate that the so called complainant Mr Ncube does not have any statutory or regulatory power to nullify or cancel the lease agreement between appellant and the Government of Zimbabwe to the extent that the instruction of Mr Ncube is *ultra vires* the powers conferred upon him and the stated provisions of the lease agreement between appellant and the Government of Zimbabwe.

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The government of Zimbabwe had placed the respondent in a position to manage the apartments. The respondent had a lawful right to manage the apartments. The respondent had a lawful right to manage the apartments in accordance with its policies. Its order from Mr Ncube was lawful until such a time as the appellant could produce a superior title to the apartment. The fact that he believed that his family was entitled to remain in the apartment did not give him the right to breach his common law duty to obey and respect his employer. He could still have enforced his supposed right without willfully disobeying his employer’s order and instructions. There is again no merit in this ground of appeal.

**Ground of appeal number 6**

The penalty imposed by the respondent is grossly irregular, harsh and excessive in all circumstances. Respondent did not appreciate and give due effect to the fact that appellant is a first offender and has served the Judicial Service Commission for (17) seventeen years. All forms of alternative penalties were never given due and appropriate consideration.

The law is clear that once an employer has found an employee guilty, the issue of sentence is in the employer’s discretion. Further it is trite that once the employer is of the opinion that the misconduct committed goes to the root of the employment contract, it is entitled to dismiss. See in this regard the following cases **Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR (S) and Mashonaland Turf Club v George Mutangadura SC 15/12**

The employer found that the refusal to obey was a serious and willful one and that the evidence and circumstances of the case show a clear intention to hold authority at defiance. The employer found also that the disobedience undermined the employment relationship and that there was lack of remorse on the appellant’s part. The employer was, in the results, of the opinion that the misconduct went to the very root of the contract of employment and dismissal was warranted. The employee on the other hand failed to demonstrate that his act of misconduct was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of dismissal was not warranted. See **Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR (S)**. He was not able to demonstrate that the penalty of dismissal was a misdirection on the part of the respondent, existence of mitigatory factors cannot take away the employers right to dismiss for an offense that goes to the root of the contract of employment. The court on appeal will not interfere with the exercise of the employer’s discretion. There is therefore no merit in this ground of appeal.

In the result, the appeal is found to be without merit and the following order is made;

**Order:**

The appeal is dismissed with each party bearing its own costs.


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