James Nhamoinesu v Minister of Agriculture, Mechanization and Irrigation Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/510/2014
HARARE, 20 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/510/2014

HARARE, 20 MARCH 2014 &				    CASE NO LC/H/89/2013

1 AUGUST 2014

In the matter between:

JAMES NHAMOINESU						APPELLANT

Versus

MINISTER OF AGRICULTURE					RESPONDENT

MECHANIZATION AND

IRRIGATION DEVELOPMENT

Before Makamure J

For Appellant		:	In Person

For Respondent		:	Ms Garise-Nheta (Legal Practitioner)

MAKAMURE J:

In this appeal the appellant was dismissed from the respondent’s employ following disciplinary proceedings. He was aggrieved by the dismissal. He appeals to this court on the ground that:

“The Board misdirected itself in holding that the appellant was responsible for the acts stated in the charge sheet.”

The charge sheet referred in the ground of appeal does not form part of the record of proceedings. The respondent’s legal practitioner was not able to supply the charge sheet in question. However, paragraph 2.0 of minutes of the hearing held on 26 and 29 October details the charges which the appellant was disciplined for. These are as follows:

“The member was charged with misconduct in terms of section 44(2) as read with paragraphs 2, 3, 8, 13 and 24 of the First Schedule (section 2) of the Public Service Regulations 2000 as amended.  The grounds of allegations that he violated:-

Paragraph 2 wherein stated that ‘improper, negligent, inefficient or incompetent performance, of duties’ in that he sourced quotations from private companies for the supply of Presidential Portraits instead of approaching Ministry of Media, Information and Publicity which is the sole supplier of Presidential portraits. This resulted in Whydex (Pvt) Ltd promotion being awarded a tender for the supply of ten portraits resulting in the Department incurring wasteful expenditure totalling $66 417-25.

Paragraph 3 wherein stated that ‘failure to obey lawful instructions including circulars, instructions or standing orders issued by the Commission, the Treasury or the Accounting Officer’ in that the member split tenders for the purchase of vehicles spares worth $61 841-25 into two. The tender was awarded without following procurement procedures which entails that a tender about a limit of US$10 000-00 and less that US$50 000-00 must go through Informal Tender Procedures of advertising in the local newspaper in accordance with SI 171 of 2002 section (i), (ii) and (iii) as read with no 161 of 2008. He also made the Accounts Department to effect payment for undelivered spare parts worth US$61 841-25 contrary to Treasury instruction number 0906 which states that ‘no payment shall be made from voted funds except for services rendered or value received’ resulting in government being prejudiced an amount of US$58 491-00 when Phatkool Investment (Pvt) Ltd delivered goods worth US$3 350-00 only and relocated to an unknown address.

Paragraph 8 wherein stated that ‘failure to take reasonable care of or account for or making improper or unauthorised use of public moneys or the moneys of any statutory body, statutory fund or authority’ in that the member as secretary of procurement committee during the period August 2010 to December 2011 made request for quotations and pushed a total of 56 tenders which were awarded and paid in advance to various companies contrary to the provisions of Treasury Instruction number 0906 which states that ‘no payment shall be made from voted funds except for rendered services or value received’. A few of the companies made part deliveries and most of them failed to deliver resulting in government being prejudiced an amount of US$346 697-79.

Paragraph 13 (a) wherein stated that ‘corruption or dishonesty, including any contravention of the prevention of Corruption Act Chapter 9:6’in that the member together with Miss Chenai Mukwati, Miss Ever Chinyere and Mr Christopher Manyasha showed bias by sourcing quotations from six companies owned by Mr Harris Musonza. Audit noted that for every three competitive quotes, two were from Mr Musonza’s companies who would eventually win the tender, hence a total of US$872 204-74 was paid to one person.

In all actions cited above he violated paragraph 24 wherein stated that ‘any act or omission which is inconsistent with or prejudicial to the discharge of official duties, including the abuse of authority.’”

The appellant’s main grief is that these charges were not particularized. There are no indications of what exactly he sourced and when. The appellant also raises the issue of the relevant period. He states that he only joined the particular department in 2011 and yet the offences date back to 2010. The letter of determination states that the period under scrutiny was from March 2011 to December 2011. This makes sense in view of the appellant’s assertion that he joined the department in question in the year 2011. However it still remains unclear as to which tenders the appellant was involved in. The letter of determination also refers to bias shown by the appellant in that he, working together with others sourced quotations from six companies owned by one person. Once again the appellant’s position is that there was no clarity in the manner that the charges were preferred against him. They were “bunched” together. It is therefore difficult to say exactly whether or not he committed the offences alleged without there stating the exact dates when the allegations arose.

It is an established principle of our law that a person has the right to know the charges that they are facing. (See Jerry Musarira v Anglo American Corporation SC-53-05). This enables them to properly prepare their defence. From the manner in which the grounds on which the allegations are framed, there was no sufficient clarity. A person ought to know exactly what they are alleged to have done in order for them to make a meaningful response. For example, there is an allegation that there was corruption regarding how sourcing for certain quotations were done. It would assist to know the companies involved and also show that there was unfairness in the manner that companies were given jobs to do.

It has been stated that the appellant admitted committing the offence. However it is trite that admission of knowledge of the existence of rules is not admission of wrong doing. (See Makuwaza v National Railways of Zimbabwe 1997 (2) ZLR 453 (S)).

For the above reason the appeal succeeds.

Accordingly it is ordered that the appeal be and is hereby granted with costs.

The respondent be and is hereby ordered to reinstate the appellant to his post without any loss of salary or benefits with effect from date of dismissal. In the event that reinstatement is no longer possible, the respondent be and is hereby ordered to award the appellant the appropriate damages as agreed between the parties. Should parties fail to agree, either party is free to approach this court for quantification.

Civil Division of the AG’s Office, respondent’s legal practitioners