Meise Makeletso Namasasu v Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/607/2016
HARARE, 25 JULY 2016
CASE NO LC/H/191/2016
7 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/607/2016

HARARE, 25 JULY 2016 &				         CASE NO LC/H/191/2016

7 OCTOBER 2016

In the matter between

MEISE MAKELETSO NAMASASU					APPELLANT

Versus

CIVIL SERVICE COMMISSION						RESPONDENT

Before the Honourable Muchawa J

For the Appellant	T W Nyamakura (Legal Practitioner)

For the Respondent	K Warinda (Legal Officer)

MUCHAWA J:

This is an appeal against a determination of the disciplinary committee of the Civil Service Commission which found the appellant guilty of two of the three counts she was charged of and discharged her from service.

The appellant was employed by the respondent in 1983 and at the time of her suspension in respect to these proceedings, she was the Director, Implementation and Monitoring in the Ministry of Finance and Economic Development.

At an Annual General Meeting of the members of Premier Service Medical Aid Society (hereinafter referred to as PSMAS), in 2002 the appellant was elected as a board member and she served until 2014. The appellant’s relationship with PSMAS however started in 1997 when she was co-opted onto the board.

On 29 July 2014, the respondent was charged of having violated paragraphs 15, 17 and 18 of the First Schedule (section 2) to the Public Service Regulations, 2006 as amended. These charges were based on an investigation report.

The appellant was found guilty on 4 November 2014 and was directed to resign, failing which she would be deemed to have been discharged. The appellant filed an application for review in this court. The matter was remitted back to the respondent for a hearing de novo before a new disciplinary committee.

On 29 July 2015 after reinstating the appellant, the respondent suspended the appellant and instituted fresh disciplinary proceedings.

The charges preferred remained the same. The particulars were as follows:

That the appellant violated paragraph 17 which prescribed any   “…. appointment as company director, without the written consent of the Commission …”  in that she did not have the written authority from the Civil Service Commission when she was elected and served as a board member for PSMAS.

She violated paragraph 18 “undertaking or engaging in any form of employment or service for remuneration without the written consent of the Commission” in that during the period 2009 to 2014 she provided services to PSMAS and Premier Services Medical Investments (PSMI). She then received remuneration without the consent and authority of the Civil Service Commission.

She violated paragraph 15 “…. failure to disclose to a superior any conflict of interest … to any matter connected with the discharge of the member’s official duties …” in that she failed to disclose and prove to the Civil Service Commission that in her capacity as a representative of Treasury she was recusing herself from meetings where  budget allocations for PSMAS were being discussed.

The disciplinary committee found the appellant guilty of charges 1 and 2. The respondent dropped the third charge. It was recommended that the appellant be discharged from service and this recommendation was upheld.

Aggrieved by that decision, the appellant has lodged the current appeal on these grounds:

Respondent erred and alternatively misdirected itself, such a misdirection being so serious as to amount to an error at law, in failing to find as it should have, that the charges levelled against appellant in substance amounted to an unlawful splitting of charges.

Having erred as stated in ground (1) thereof, the respondent erred and alternatively misdirected itself seriously in failing as to quash the charges and refer the matter back to the Disciplinary Authority (sic).

Respondent erred in law in any event, in proceeding to find appellant guilty of the charges levelled against her, when in fact all the alleged acts, even if proven constituted one continuous transaction and consequently the dismissal is ipso facto substantively unfair.

The committee erred in law in finding appellant guilty of being appointed, without its written authority to the Board of Premier Medical Aid Society pursuant to paragraph 17 of the First Schedule to the Public Service Regulations, 2000 when in fact and in truth Premier Medical Aid Society is neither a “business nor an income generating activity” within the contemplation of the Regulations.

The committee erred in law in finding appellant guilty of undertaking in employment or service for remuneration as chairperson of the Board of Premier Medical Aid Society without its written authority pursuant to paragraph 18 of the First Schedule to the Public Service Regulations, 2000 when in fact and truth hers was not an employment relationship nor was it provision of a service for remuneration within the contemplation of the Regulations or at all.

Respondent misdirected itself in any event, in finding as it did that in both instances, viz under paragraphs 17 and 18 of the Regulations the appellant required written authority of the respondent before accepting election as a Board member and thereafter as Chairperson of the Board of Premier Medical Aid when in fact and in truth no such authority, written or otherwise was required of her in view of the status of Premier Medical Aid Society in our law.

Alternatively, respondent erred in failing to give due weight to the fact that four other senior employees occupied positions in the Premier Medical Aid Society Board of Directors, who were never disciplined or subjected to censure. Consequently the selective punishment of only appellant breached the parity of treatment principle thereby making it substantively unfair.

The issues arising from these grounds of appeal for my determination appear to be as follows:

Whether or not there was an unlawful splitting of charges and if so, the appropriate remedy.

Whether the appellant was properly found guilty of contravening paragraph 17 of the First Schedule to the Public Service Regulations, 2000.

Whether the appellant was properly found guilty of contravening paragraph 18 of the First Schedule to the Public Service Regulations, 2000.

Whether the selective punishment of the appellant breached the parity of treatment principle and was therefore substantively unfair.

I deal with these issues below:

Alleged improper splitting of charges

Mr Nyamukura argued that there was an unlawful splitting of charges because the alleged acts of misconduct constituted one continuous transaction and were both based on the allegation of a lack of authority and the appellant’s being a member of the board.

On the other hand, Ms Warinda contended that the three charges are separate acts of misconduct in the first schedule to the Public Service Regulations, 2000 as amended and the appellant was therefore properly charged.

The observation made in the record of proceedings, record page 12 that the principle on splitting of charges applies more to criminal proceedings and not to disciplinary administrative proceedings is also taken issue with.

It is not correct to say that the concept of splitting of charges applies more to criminal proceedings than to disciplinary administrative proceedings. Our own Supreme Court has considered this in the case of Ngondo & Ors v Portland Holdings Limited SC 40-03. Therein Honourable MALABA DCJ considered and found that the offences the appellants were charged with were separate acts of misconduct based on different allegations of fact from those necessary to found a conviction for participating in an unlawful collective job action and concluded there was no splitting of charges.

Similarly in Taruvinga v CIMAS Medical Laboratories SC 19-05 Honourable GWAUNZA JA dealt with the allegation of an unfair splitting of charges and concluded there were facets to the appellant’ s conduct that constituted different offences.

The test to be applied is clearly borrowed from that applicable in the criminal law as laid out in S v Mabwe 1998 (2) ZLR 178 (H).

As to whether there was an unlawful splitting of charges in casu I will apply the same test set out in the cases cited above. The question is whether the charges levelled against the appellant were based on the same allegations of fact or conversely whether there were facets to the appellant’ s conduct that constituted different offences.

The charge for violating paragraph 17 was supported by the facts that the appellant had, without written consent of the commission, been elected and served as a board member. For a contravention of paragraph 18 these same facts were alleged except that there is a further factual allegation that the appellant had received remuneration for the services rendered. I find therefore that the allegations of fact for the charge under paragraph 17 were based on the same facets necessary to be proved for contravening paragraph 18. There was therefore a splitting of charges.

The next question is to consider the effect of this splitting of charges.

The disciplinary committee found the appellant guilty of the two remaining charges and treated both as one for purpose of penalty.

The rationale for not allowing the improper splitting of charges is to ensure the accused is not prejudiced by the imposition of several or excessive punishments for one and the same conduct as this would be unjust. Nkala v The State HB 93-05.

I find nothing improper in the approach of the disciplinary committee as any likely prejudice from the splitting of charges was cured by the treatment of the two charges as one for purposes of the penalty. This is in line with the approach taken in S v Chinemo 1985 (1) ZLR 32 (HC).

As there was no prejudice suffered, there was no impropriety in the splitting of charges.

The question of the failure to mitigate is not part of the grounds of appeal and has been improperly raised. I will not detain myself on this. I believe the appellant has ingeniously tried to latch it to the question of improper splitting of charges.

Whether the appellant was properly found guilty of contravening paragraph 17 of the Regulations

Paragraph 17 provides as follows:

“Except as a member, director or manager of any statutory body (not being a successor company to a statutory body), the control, direction or management, whether directly or indirectly of any business or, other income earning activity including appointment as a company director, without the written consent of the Commission.”

The appellant’s contention is that PSMAS is not a business in the commercial sense or an income generating entity. I was referred to the PSMAS constitution and its main objective of providing medical aid to its members and it was argued that PSMAS is not operated for purposes of generating profit for members.

It was further argued that the word “business” must be construed eiusdem generis with that which comes after it because what is prohibited is a business which has an income earning objective.

The respondent argued that the appellant was properly found guilty in respect to this charge as she sat on the board for twelve years and never at any time sought the authority of the representative.

In the case of Murawo v Grain Marketing Board SC 27-09, the court quotes with approval from the learned author, Gail Maryse Cockram, The Interpretation of Statutes 3rd ed at p 153:

“Where a list of items which form a genus or class is followed by a general expression, the general expression is, in the absence of  contrary intention in the statute, construed eiusdem generis to include only other things of the same class as the particular words.”

It is noted too in that case that the eiudem generis rule is not a rule of general application and should be applied with caution.

In casu I note that there is no listing of a class of things at all. There is a mention of “…any business or, other income earning activity …”. The general precedes the specific and not the other way round. This in my opinion disqualifies the application of the eiusdem generis rule.

It therefore does not aid the appellant to refer me to the constitution of PSMAS. The literal interpretation to be accorded to the words is that the offence is committed where, a member, without written consent of the commission, whether directly or indirectly is involved in the control, direction or management of any business or other income earning activity.

A business is an entity involved in the provision of goods and/or services to consumers. PSMAS fits squarely into this. According to its constitution, its main objective is providing medical aid to its members.

I find therefore that the appellant was correctly found guilty of contravening paragraph 17 of the Regulations.

Whether the appellant was properly found guilty of contravening paragraph 18 of the

Regulations

Paragraph 18 provides that it is an offence for a member to undertake or engage in any employment or service for remuneration without the written consent of the Commission.

Mr Nyamakura argued that the appellant was not employed by PSMAS nor was she engaged in a service for remuneration from PSMAS. This is because it is alleged that the service the appellant was rendering was rendered to the members who appointed her and not to PSMAS and any remuneration rendered ought to have been from the members.

Ms Warinda contended that there may have been no employment relationship but the appellant rendered services as a board member and received remuneration for this service without the written consent of the Commission.

A reference to section 6 of the PSMAS Constitution shows that PSMAS is made up of the very members who elect the board of Directors at an annual general meeting in terms of section 7 (2). I believe therefore that the stance taken by the appellant is mere splitting of hairs.

I find therefore that the appellant was properly found guilty of this charge.

Application of the parity principle

It is argued for the appellant that the disciplinary committee ought to have applied the parity principle so as to ensure that the basic tenet of fairness which requires that like cases should be treated alike was upheld.

The appellant points to three other board members who were appointed to sit on the board by the Government, who continued to sit on the board way beyond the expiry of their mandates, who were never subjected to disciplinary proceedings.

The respondent argues that the parity principle is not part of our law.

In the case of Jiah & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 (SC), Honourable MUCHECHETERE JA considers an allegation of victimisation and cites with approval from the South African case of National Union of Metalworkers of South Africa & Ors v Henfred Fruehauf Trailers (Pty) Ltd 1995 (4) SA 456 (A) on the parity principle as follows:

“Equity requires that the courts should have regard to the so-called “parity principle.” This has been described as a basic tenet of fairness which requires that like cases should be treated alike.”

He concludes that in the Jiah supra case the equity principle had been breached and that therefore our labour laws should classify this as an unfair labour practice.

In Lancashire Steel (Pvt) Ltd v Mandevana & Ors SC 29-95 the Supreme Court held that even though arguments could be advanced regarding the unfairness of selective prosecution, if the ones who face discipline are guilty in law, it is not in law relevant that others may be guilty.

In the latest case of Zimbabwe Banking Corporation v Mbalala SC 55-15 this position was re-affirmed that there is a discretion that is reposed in the employer and that an employee should face the consequences of his actions and should not be allowed to hide behind others.

In any event the appellant was elected onto the board whilst the three others were government appointees who had the written consent which then expired. The facts are therefore not entirely the same.

Accordingly I find no merit in the appeal in its entirety and dismiss it with costs.

Mtetwa & Nyambirai, appellant’s legal practitioners

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