Shelter Ngozo-Chapata v Zvimba Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/273/2020
HARARE, 22 OCTOBER 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO. LC/H/273/2020

HARARE, 22 OCTOBER 2020                                            CASE NO LC/H/234/19

AND 20 NOVEMBER 2020

In the matter between: -

SHELTER NGOZO-CHAPATA			Appellant

And

ZVIMBA RURAL DISTRICT COUNCIL	Respondent

Before Honourable B.T.  Chivizhe, J

For Appellant:                Mr B. Museba (Legal Practitioner)

For Respondent:            Mr O.T Gasva (Legal Practitioner)

CHIVIZHE, J:

This is an appeal against a determination by the Respondent Appeals Committee which determination was handed down on 7th of November, 2019. The appeal is opposed.

The material background facts to the matter are as follows. The Appellant was employed by the Respondent as a Senior Manager. The Respondent levelled a charge of misconduct against her for participating in a procurement meeting where she along with the other members of the Committee, were said to have violated Section 52 (1) of the Public Procurement and Disposal of Public Assets Act [Cap 22:23] hereinafter referred to as the “PPDPA Act”. The allegations were that Appellant had tasked Mr George Manyumba to negotiate with Standard Global Communication (SGC) to reduce their bidding price of $6 683.33 to match that of the lowest bidder (Volsec Security) which was pegged at $5 054.30 for the installation of CCTV at the Respondent showground office. The Appellant actions were said to be in violation of Section 8.4.12 of the Zvimba Rural District Council’s Code of Conduct. The Appellant was arraigned before a Disciplinary Committee on the 16th and 28th of August 2019. Through a letter dated 29 August 2019 the Disciplinary Committee found her guilty of the gross offence under Section 8.4.12 of the Code of Conduct. The Disciplinary Committee consequently imposed a penalty of a first written warning valid for 6 months. Dissatisfied, the Appellant, in the exercise of her rights as enshrined under relevant the code of conduct, appealed on 5 September 2019 to the next level i.e. the Chief Executive Officer. Having failed at that level the Appellant again filed an appeal to the second and final appeals authority under the code of conduct. For convenience and clarity I shall refer to the Appeals Committees as First and Second Appeals Committee. The Second Appeals Committee sat on 30th of October, 2019 to hear her appeal.

In her grounds of appeal the Appeal noted that, firstly, the First Appeals Committee had erred by failing to find that the Disciplinary Committee was improperly constituted when it sat to hear the matter; secondly, the First Appeals Committee had erred in proceeding to hear the appeal with an improperly constituted Appeals Committee in violation of Section 9.8 (ii) and (iv) of the Code of Conduct; thirdly, the First Appeals Committee had erred in upholding the charge which was an incompetent charge levelled; fourthly, the First Appeals Committee had erred in upholding a finding of guilty on the charge in circumstances where the Respondent had unfairly refused to furnish her with documentary evidence such as the ‘Request for Quotations’ document and a full complement of the quotations requested; fifthly, the First Appeals Committee had erred in upholding a finding of guilty on the basis of minutes which had not been confirmed by her; sixthly, the First Appeals Committee had erred in upholding the Disciplinary Committee finding as to whether the award of the supply contract to SGC was in the best interest of Respondent as a saving of $ 1 618.75 had been made; seventhly, the First Appeals Committee had erred in upholding the Disciplinary Committee finding on the issue that the transaction had been a direct procurement which was actually in the best interest of the organization. The Second Appeals Committee, after deliberating on the submissions of the parties and the record handed down its determination on 7 November 2019. The body upheld the decision of the First Appeals Committee. Still dissatisfied the Appellant noted the present appeal before this court.

The appeal is premised on two simple grounds which are captured in her Notice of Appeal as follows;

“GROUNDS OF APPEAL

The Appeals Committee erred in proceeding to hear the appeal which it was improperly constituted as an Appeals Committee.

The Appeals Committee erred in failing to consider independently the Grounds of Appeals before it and in particular the Committee erred in deciding to uphold the decisions of the first Appeal without even applying its mind to the merits of the Appeal whose grounds are incorporated herein by reference. “

The appeal is opposed by the Respondent, firstly, on the basis that the First Appeals Committee was properly constituted as per the provisions of the Code of Conduct under Section 9.9 (1) thereof: secondly, on the basis that the Second Appeals Committee arrived at the correct determination after considering all the evidence placed before it. The Respondent also submits that the Appellant was properly changed in terms of the Respondent’s Code of Conduct as read with Section 52 of the PPDPA Act.

On the date of hearing both parties appeared and argued on the basis of their divergent positions as taken through Heads of Argument filed of record. Mr Museba emphasized on the impropriety of the charge levelled. He submitted that the Appellant had been improperly charged of the violation of Section 52 (1) of the PPDPA Act which Act was at the material time a suspended act of law. The law had been suspended until December 2019. The Disciplinary Committee itself had also made a finding to that effect. Mr Museba noted that the Respondent had not cross-appealed on this point. On the basis it was his submission that the charge was an incompetent charge. The Appellant ought to have properly been charged with a misconduct under the relevant Code of Conduct. On this basis therefore the disciplinary proceedings having been based on an incompetent charge were a nullity.

It was Mr Museba further submission that even if the court were to find that the PPDPA Act was not suspended the charge was still an incompetent charge on the basis, the Respondent had failed to comply with Section 70 (3) of the Act which requires Procurement Officers to in writing undertake to, inter alia, abide by Rules of Conduct provided for by or under the Act including the Code of Conduct under Section 71 of the Act. It was Mr Museba’s further submission that on the basis of the provisions of the PPDPA Act [22:23], the Act and indeed the Code of Conduct under the Act had to be made part and parcel of the Procurement Officers’ contracts of employment. It necessarily meant that Section 52 had to be subsumed into Respondent Code of Conduct. As Respondent had not yet complied with the provisions in Section 70 (3) of the PPDPA Act [22:23] this meant that at the material time it was not an offense under the Code of Conduct for an employee to fail to comply with Section 52 of the PPDPA Act.

Mr Museba also argued on the issue of the improper composition of the Committees i.e. the Disciplinary Committee and the two Appeal Committees. In the First Appeals Committee there was the inclusion of the Chief Executive Officer who had actually participated in the Disciplinary Committee as the Prosecutor. In the Second Appeals Committee that Committee was also improperly constituted as one Councilor sat as the Chair of Appeals Committee in clear violation of clause 9.9 (1) of the Respondent Code of Conduct. The Disciplinary Committee on its part was also said to have had no representatives of the Managerial Committee as required by the Respondent Code of Conduct.

Mr Museba also addressed the other grounds of appeal. He noted that the Appellant had not been furnished with crucial documents which would have assisted her in her defense to the charges. Although the issue had been raised in the Disciplinary Committee it was not addressed by the Disciplinary Committee. The Chairman however had noted the importance of the documents to Appellant case. It was Appellant contention her right to a fair hearing was clearly abrogated in the circumstances. Mr Museba also argued that Appellant had been improperly convicted on the charge in the light of fact that the decision to award contract was not taken individually by her but was taken as a collective; secondly, the procurement was as a result of direct procurement which is allowed at law. In any event the award to SGC as the facts established was actually in the best interest of Respondent as Respondent had made a saving of $1 618.75 in the process. No prejudice had thus been suffered by the Respondent. On this basis it was Appellant’s prayer that the appeal ought to succeed.

Mr Gasva, for the Respondent, in counter, submitted that Appellant was properly charged under Respondent Code of conduct more especially clause 8.4.12 thereof. He submitted that it was only in particularizing the charge that Respondent had made reference to Section 52 (1) of the PPDPA Act. The charge was accordingly a competent charge. The Disciplinary Committee had also sought opinion from the Procurement Regulatory Authority of Zimbabwe which body had advised through a letter that it was proper to charge Appellant in circumstances. It was in any event clear that the disciplinary matter in this case had commenced when the PPDPA Act [22:23] was already operational and not when its predecessor Act i.e. PPDPA Act [Chap 22:14] was operational.

With regards to the issue of improper composition of the Disciplinary and Appeals Committee Mr Gasva partially conceded to the point as taken. He conceded that both Appeals Committees had been improperly constituted as submitted by Appellant. It was his view however that the disciplinary committee was properly constituted. Having made that partial concession he submitted that, in relief, the justice of the matter demanded that the matter be remitted to the First Appeals Committee for that Committee to rehear the first appeal. This he submitted is the proper course to follow, where the court makes a finding of procedural irregularities that are sufficient to vitiate disciplinary proceedings. The Respondent placed reliance on authorities as referred to in heads of arguments.

The main issue to be determined in this matter is whether the Second Appeals Committee was wrong at law to uphold the determination by the hearings a quo that Appellant was guilty of the charge levelled against her. A resolution of this issue however depends on a determination initially of the procedural point taken that the charge levelled against Appellant was an incompetent charge. A determination of this point in favour of the Appellant would result in the quashing of the entire disciplinary proceedings. There would then be no need for the court to address the rest of the grounds of appeal. It is to that point that the court must necessarily advert to first. I turn to address the point.

The point was initially raised by the Appellant before the Disciplinary Committee. The particular charge levelled against Appellant on 25th of July 2019 read as follows;

“As a member of the Procurement Committee she violated Section 52 (1) of the Public Procurement and Disposal of Assets Act [Chap 22:23] when she tasked Mr George Manyumba to negotiate with Standard Global Communicate (SGC) to reduce their bidding price of $6 633.33 to match that of the lowest bidder (Volsec Security) pegged at $ 5 054.30 for installation of CCTV at showground office”;

In violation of Section 8.4.12 of Zvimba Rural District Council Code of Conduct which states that

“an employee is guilty of misconduct if he/she enables, encourages or permits any person to commit any misconduct in this code or refuses to give information within his/her knowledge concerning the misconduct or deliberately closes his/her eyes to the obvious.”

The Appellant submission before all the committees and this court is that the charge was incompetent by virtue of the fact that at the materials time of commission of the alleged misconduct the PPDPA Act was not yet operational. It only became operational in December 2019. On that basis therefore the charge having been formulated on an Act that was not operational the charge was an incompetent charge. The Appellant further submits that in any event Section 52 not having been incorporated into Respondent Code of Conduct the charge was incompetent. The Respondent position is that the Appellant was properly charged under the Code of Conduct in particular clauses 8.4.12 thereof. The provision in Section 52 of the PPDPA Act were only referred to in particularizing the charge. In any event opinion had been sought from the Procurement Regulation Authority of Zimbabwe who had advised that procurement proceedings after 1st June 2018 would be governed under the new Act i.e. PPDPA Act [Chap 22:23].

In the court’s findings the Appellant’s first point is clearly without merit. A perusal of the record shows that the main charge levelled against the Appellant was based on the PPDPA Act [Chap 22:23]. The Respondent acted on advice from that regulatory authority which was to the following effect;

“7 The grace period provided for in the PPDPA is a transitional period which was granted by the law for purposed of enabling procuring entities to set up structures and to resource the human capital needed for compliance with the PPDPA Act. This does not implies that procurement officers and/or Accounting Officers are allowed to act in violation of the provision of the PPDPA Act during the said period. “

The letter also ominously stated as follows;

“1.	The procuring entity may proceed to conclude the hearing proceedings based on the provisions of the Labour Act [Cap 28:01], the Company’s Code of Conduct and the applicable procurement law.

2.	Procurement activities conducted prior to 1 January 2018 were governed by the Procurement proceedings after 1 January 2018 are governed by the PPDPA Act.”

The advice given by the Procurement Regulatory Authority of Zimbabwe was clearly correct in regards the date of commencement of the Act. The Court takes judicial notice that the Act of Parliament clearly shows the date of commencement as 1 January 2018.

The Appellant’s second submission on the impropriety of the charge however has merit. It is apparent from a perusal of the record that the Disciplinary Committee in its determination concluded that the offence listed in the code of conduct of the PPDPA Act [Chap 22:23] could not be utilised in the light of the grace period granted by the same statute and in view of the date of enforcement of the Act which was after December, 2019. Although this was not the correct position at law it would appear to me that the Disciplinary Committee having reached that conclusion it was improper for the Committee to have proceeded to find the Appellant guilty. Once the disciplinary committee had found that the Act had not been operational it ought to have found the Applicant not guilty of the charge. This follows light as day. It was also not proper for the Appeals Committee to seek to reinstate an otherwise dead matter by correcting the findings of the Disciplinary Committee on the point. That clearly is not the role of the Appeals Committees as set out under the code. It is equally not the role of this court sitting as an appellate court to seek to correct the Disciplinary Committee on this point even where their finding was wrong at law.

The third argument by Appellant also has merit. The charges levelled against Appellant were to be read as separate charges. They were not to be read together as suggested by Respondent’s Counsel. It is also correct as contended by Applicant that Section 52 (1) of the PPDPA Act [Cap 22:23] could only have been levelled as a competent charge once the PPDPA Act Act had been incorporated into the Workplace Code of Conduct and the Respondent had complied with provisions in Section 70 (3) of the PPDPA Act [Cap 22:23] which provide as follows;

70. Conduct of procurement officers

(3) Before a procurement officer enters upon his or her office as such, he or she shall, in writing, undertake to—

(a) faithfully exercise the functions assigned to him or her as a procurement officer; and

(b) abide by rules of conduct provided for by or under this Act, including the code of conduct referred to in section 71.

The Code of Conduct is referred under Section 71 of the Act which reads as follows;

71 Code Of Conduct For Procurement Officers

(1)Regulations in terms of section 101 shall provide for a code of conduct for officers and employees of procuring entities, in so far as they are responsible for any aspect of the entities’ procurement, including the implementation of procurement contracts.

(2)The code of conduct shall provide for all matters relating to the conduct of the officers and employees concerned, in so far as they are engaged in procurement, including—

(a) the qualifications and training of such officers and employees; and

(b) the prevention of conflicts of interest in procurement; and

(c) the prohibition of collusion with any bidder involved in a competitive bidding process; and

(d) declarations of interest in particular procurements.

(3)The  Authority  shall  ensure  that  the  code  of conduct  is  promptly  made  readily accessible to the public and is systematically up-dated to conform with evolving best practices in procurement.

It was clearly necessary for the PPDPA Act [Cap 22:23] and indeed the Code of Conduct referred to under section 71 to be made either part of the employee’s contract of employment or to be incorporated by reference in the workplace Code of Conduct. This was important in view of the requirement under the workplace Code of Conduct to ensure any act of misconduct levelled to fall under the provisions of that Code of Conduct. This is clear in the definition of “misconduct” which is said to mean ‘an act or omission constituting misconduct in terms of the code.’

In the circumstances the appeal must clearly succeed on this point alone. Having reached this conclusion it shall not be necessary for this court to delve into the rest of the grounds of appeal.

It is accordingly ordered as follows;

The appeal be and is hereby allowed with costs.

The disciplinary proceedings convened by the Respondent having been based on an incompetent charge be and are hereby set aside.

The penalty imposed of a first written warning is accordingly set aside.

Muzangaza Mandaza & Tomana, appellant’s legal practitioners

Mbano – Gasva & Partners, respondent’s legal practitioners