Samuel Makara v Ministry of Education, Sports and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/90/2014
HELD AT HARARE ON 29 JANUARY, 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/90/2014

HELD AT HARARE ON 29 JANUARY, 2014&		CASE NO. LC/H/101/2012

14 FEBRUARY 2014

In the matter between:-

SAMUEL MAKARA							-	Appellant

And

MINISTRY OF EDUCATION, SPORTS 			-	Respondent

AND CULTURE

Before The Honourable B.T Chivizhe: Judge

For Appellant	-	Mr P. Kawonde (Legal Practitioner)

For Respondent 	-	Ms R. Hove (Civil Division of the Attorney-General’s

Office)

CHIVIZHE J,

The appeal was noted as against the decision of the Acting Secretary for Education, Sport, Art and Culture delivered on the 4th of January, 2012.

The background facts to the matter are as follows;

The Appellant is employed by the Respondent.  He was Head of Mukombani Secondary School.  On 2 September 2010 he was charged with four acts of misconduct.  The allegations were laid out in the charge letter as follows:

“The grounds on which this charge is based are that:

You misappropriated school funds by paying Jane MaryTsonziwa salaries amounting to US$300-00 paid as follows – US$200-00 on 13 March 2009 being back dated salary for June and July 2008 and $US100-00 paid on 17 March 2009, being salary for August 2008. Tsonziwa Jane Mary, the then school chairman’s daughter had already been paid by the Ministry of Education Sport, Arts and Culture for the same period when she was engaged at the school as a relief teacher. This implies that she was double paid for this period.

According to the Audit findings, forex and fees were collected by the school before approval of Ministry. This was in contravention of Ministry requirements that all fees should be approved before it is collected from parents. It was further noted by Audit that Tsonziwa J was the only teacher at the school employed by Ministry who was paid in forex for the period June, July and August

According to the Audit’s report you also failed to properly maintain cash books as the following omissions were observed:

Cancelled receipts were not recorded in the cash book

Reconciliation was not done

Source documents such as involves, orders, quotations and receipts were not being attaches to the payment vouchers.

You failed to take appropriate disciplinary action by preferring charges on the teachers whose conduct was unbecoming instead you allowed the School’s School Development Committee to confiscate the unscrupulous teachers personal items as disciplinary action.”

The Appellant responded to the charges in his letter dated 8 June, 2010.

The Appellant appeared for a disciplinary hearing on the 30th of May 2011.  He was found guilty of contravening paragraphs 2, 3, 8 and 24 of Section 44(2)(a) of the Public Service Regulations, 2000 and the Finance Circular Minute Number 6 of 1994 for failing to properly maintain cash books of the school.  The Disciplinary Committee imposed a penalty of reprimand and a fine of $300.00 in two installments.  The Appellant then appealed to the Head of Ministry.

In a letter dated 4 January, 2012 the Acting Secretary for Education, Sport, Arts and Culture advised the Appellant of his conviction on the four acts of misconduct.  On the basis of Section 46(3) of Public Service Regulations as read with Section 50(1) para (c)(d)(i)(e) and(m) he then imposed the following as a penalty;

“(a) Demoted to Deputy Head with effect from 1 February 2012.  You will not be

considered for promotion for the next two years.

(b)	Transferred to a school within the Province which shall be determined by the Provincial Education Director with effect from 1 February 2012.

(c) Fined an amount of US$200.00 which amount shall be recovered from your salary by two equal deductions.

Reprimanded.  Be warned that any further act of misconduct against you may result in a harsher penalty being imposed on you.”

Exercising his rights under thePublic Service Regulations the Appellant then noted the present appeal with the Labour Court.

The grounds of appeal as raised in his notice of appeal are as follows;

“1.	The Acting Secretary erred in finding that the Appellant was guilty of misconduct on the allegations that he paid Jane Mary Tsonziwa US$300-00, yet such payment was as a result of her failure to receive her salary for the month of June, July and August. The Acting Secretary erroneously attributed such actions to the appellant whereas it was the School Development Committee that made the decision within its powers in terms of S I 87 of 1992 Part 11, Section 5 thereof.

2.	The Acting Secretary misdirected himself in finding that charging fees in foreign currency without approval from the Ministry was an act of misconduct by the appellant yet such was the preserve of the School Development Committee chairperson. Despite the fact that approval from the Ministry should have been sought by the School Development Committee Chairperson, the Acting Secretary erred in fastening liability on the Appellant whose only role was to write a supporting letter. The School Development Committee chairperson applied for a US20-00 fees increase on 14 March and owing to the delays in the process the fees had to be charged, out of necessity, in foreign currency before getting the necessary approval.

3.	The Acting Secretary erred in finding that the Appellant was guilty of misconduct on the allegation that he failed to keep the cash book up to date whereas maintenance of the cash book was done by the clerk or bursar and the appellant’s role was supervisory in nature. The Acting Secretary misdirected himself despite the reason by the Appellant that the bursar was on maternity leave and the School Development Committee had proceeded to employ another clerk who was however inexperienced.

4.	It is within the powers of the School Development Committee to take all measures that appear to it to be necessary or expedient to preserve and maintain the property and facilities of the school in terms of S I 87 of 1992 part II thereof. The Acting Secretary erred in  finding the Appellant guilty of misconduct on the allegations that he failed to take disciplinary action against teachers who lost school items or failed to pay electricity bills yet the teachers in question had made arrangements with the School Development Committee that they would pay or replace lost items at a later stage. The Acting Secretary thus erred in finding the Appellant guilty of misconduct for the fault of the School Development Committee which is a body corporate with separate existence capable of suing and being sued in its own name.”

The appeal is opposed.  In its statement of response the Respondent raised the following issues:

That although Appellant argues that MsTsonziwa was paid $300.00 in order to cover months of June, July and August not paid for there is evidence to prove she was paid in Zimbabwe dollars in the form of cheques.

That the School Development Committee in any event had no powers/mandate under the regulations to pay a teacher employed by government.

The Appellant as an ex-officio member of SDC should have advised the SDC appropriately.

Appellant as the sub-accounting officer erred by failing to advise the SDC not to charge fees in foreign currency without approval from the parent Ministry.

That the Appellant as the sub-accounting officer with a supervisory role failed to put in place contingency measure to ensure the cash-book is kept up to date in the absence of the bursar.

That the Appellant as the Headmaster and therefore disciplinary authority failed to take appropriate measures or disciplinary action against teachers who lost school property or failed to pay electricity bills.

The matter was set down for hearing on two occasions.  On the second date of hearing the court by consent of the parties admitted additional evidence in the form of;

10 cheques drawn on the Reserve Bank of Zimbabwe dated 22 July 2003 made out to “Tsonziwa J.M.” all in the amount of Zim$90 000 000 000-00.  The exhibit was marked as Annexure ‘A’.

The Administration and Finance Circular Minute No. 6 of 1994 which was also marked as Annexure ‘B’.

On the second date of hearing before closing submissions the Appellant took a point of law.  The point raised was that the proceedings were a nullity on the basis that the charge letter raised by the Respondent is undated and unsigned.  This issue had been raised in the disciplinary proceedings and dismissed by the Disciplinary Committee.  It was counsel’s submission that the disciplinary proceedings being based on a nullity it followed that there is no appeal before the court and the court should proceed to set aside the disciplinary proceedings.

The Respondent’s counsel initially objected to the introduction of the point at the late stage of proceedings but eventually conceded to the raising of the point.In response to the actual point raised it was the Respondent’s position that there was no immediate explanation as to why the charge letter served on the Appellant and indeed forming part of the record was undated and unsigned.  The Respondent’s counsel left it to the court’s discretion to determine the point as it saw fit.

I am satisfied having considered submissions by both parties that the point of law raised by Appellant’s counsel is clearly merited. The issue as to the validity of the charge letter is in my view a point of law and as a point of law it was open to the Appellant to raise it any stage of the proceedings.  If the charge letter was void ab initio it was void at all times and for all purposes and the finding of its validity could be raised at any time.  (See MuchakatavsNetherburn Mine 1996 (1) ZLR 153(S)).

It is also clear that where disciplinary proceedings are predicated on a charge letter which is a nullity then the proceedings are void ab initio.  It follows that the subsequent proceedings were of no force or effect. Being a nullity there is normally no need for a court order to set aside the proceedings. (SeeMugwebie v Seedco2000 (1) ZLR 93 (SC)).

It is however hereby ordered as follows:

The point in limine is upheld.

The disciplinary proceedings before the Respondent are hereby set aside.

The Respondent shall reinstate the Appellant to his original position without any loss of salary or benefits from 1 February, 2012 beingthe date of his unlawful demotion to Deputy Head.

The Respondent shall also reimburse the Appellant with the amount of US$200-00 unlawfully recovered from his salary.

Kawonde& Company, appellant’s legal practitioners

Civil Division of the AttorneyGeneral ’sOffice, respondent’s legal practitioners