W. Kupeta v Permanent Secretary Ministry of Higher & Tertiary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/672/2014
HARARE, 22 SEPTEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/672/2014

HARARE, 22 SEPTEMBER 2014		           	         	         CASE NO. LC/H/101/14

AND 10 OCTOBER 2014

In the matter between:-

W. KUPETA	 								Appellant

And

PERMANENT SECRETARY MINISTRY OF HIGHER		Respondent

& TERTIARY EDUCATION & ANOR

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. T. Katsuro (Legal Practitioner)

For Respondent		Ms T. Musangwa (Law Officer)

MAXWELL, J:

This is an appeal against the discharge of the Appellant from the Civil Service following conviction for misconduct.  The Appellant was employed at Belvedere Teachers’ College as a lecturer.  On 3 June 2013 he was charged with three counts of misconduct in that

he failed to account for $240 he received as payment for College Income generating projects from Ngezi Salvation Army Secondary School on 18 June 2012,

he used an unofficial receipt book to receive the $240 mentioned in (1) above which is against standing procedures; and

by receiving the $240 mentioned in (1) above he took on responsibility not in line with his duties as a lecturer.

On 18 November 2013 he appeared before a disciplinary committee which recommended his discharge from service with immediate effect.  The recommendation was adopted and he was discharged from service by a letter dated 20 December 2013.

On 5 February Appellant noted this appeal on the following grounds;

The 1st Respondent erred when he failed to consider that ignorance of the law is a defence, where one is acting on advice by an administrative authority.  In casu, the conduct of the Appellants which was deemed to infract the Production and Pricing Policy Circular was done with the tacit authority and advice of the principal.

The 1st Respondent erred when he concluded that the principal was not aware of the projects of the Appellants (sic) when the College was receiving and receipting overheads for same.

The notice by the Registrar was sent to 1st Respondent on 5 February 2014.  On 6 February 2014 the Registrar’s notice was received at the Ministry of Higher and Tertiary Education Records & Information Office as evidenced by a date stamp.  However no response was filed in this matter.  On 8 September 2014 a notice of set down for the 22 September 2014 was served on Mr. Sande of the Civil Division of the Attorney General’s Office at 0900 hours.  On the day of the hearing of the matter an application for postponement was made on behalf of the Respondents.  The basis of the application was that one Mr. Karinga who was handling the matter was attending to another matter.  He had instructed Ms Musangwa to apply for a postponement so that an application for condonation for upliftment of a bar and file heads of argument.  Ms Musangwa was not aware whether or not a response had been filed in the matter.

The application was opposed on the basis that Appellant had filed his heads of argument and served them on Respondents on 7 May 2014.  More than three months had elapsed and Respondents had not done anything.  Appellant submitted that it should be taken into account that the Civil Division has a number of lawyers and the matter should have been handled by another lawyer.  In addition nothing had been placed before the court to prove that Mr. Karinga was before another court.

I dismissed the application for postponement as it was clearly premised on the wrong basis.  There was no notice of response filed and it was inappropriate for Respondents’ representative to seek a postponement for the purpose of filing heads of argument.  In any event there was nothing on record to confirm that the said Mr. Karinga was handling the matter and no proof had been proffered that he was before another court.  Consequently I proceeded to deal with the matter in terms of Rule 22 (b) (ii) of the Labour Court Rules SI 59/2006.

Now, dealing with the first ground of appeal, the determining issue is whether or not Appellant was acting with the tacit authority and advice of the principal.  It was submitted for Appellant that the Principal never raised issues with the manner in which Appellant was conducting himself.  It was further submitted that by conduct the principal conferred authority or gave him advice.  The court was referred to the cases of

Collen v Rietontein Engineering Works 1948 (1) SA 413 @ 429-430; and

S v Zemura 1974 (1) SA 584 and others.

My understanding of this case is that Belvedere Teachers’ College (the College) had income generating projects.  For these projects, the College would buy the materials for use.  An assessment of overheads in the form of electricity charges and payment for wear and tear to machines is done.  A client is requested to pay and is issued with a receipt from the College.  The receipt would act as a pass to allow the client to leave the premises with whatever goods would have been made at the Income Generating Project.  In this case a client was stopped at the gate as he had no receipt for the payment of overheads.  In paragraph 3.7 of Appellant’s heads of argument it is stated

“At the hearing it was established that the Appellant was paying overhead costs to the college for the projects he was doing.  It is submitted that it logically follows that after receiving the said costs, Respondent cannot be heard to state that the principal was not aware of these projects”.

Clearly Appellant was addressing what happened on other occasions, and not the one in issue.  On page 3 of the Minutes of the Misconduct hearing held on 18 November 2013 (the minutes) Appellant stated that overheads had to be paid first before a client is given his goods.  He went on further to say usually the overheads are paid when a client is collecting his goods.  He went on to confirm that the incident in question involved a private arrangement.  On page 4 of the minutes he did not respond to the question whether or not the college gave him mandate to do private jobs using college facilities.  Furthermore on the same page, he was asked

“Q:	Was there authority for this particular job?

A:	No, we didn’t have authority.”

The disciplinary committee in its findings stated on page 6 that

“-	The projects done by Mr. Kupeta and Mr. Katuli were not known by the			College authority.

-	He also confirmed that the money received was converted to his own use since he regarded the project as personal.”

The argument that the Principal was aware of what Appellant was doing has no basis and is not borne out by the record.  That the Principal never raised issues with the manner in which Appellant was conducting himself cannot be taken as conferring authority or advice on him in circumstances where the findings of the disciplinary committee state that the projects Appellant was involved in were not known to the College Authority.  I therefore find no merit in the first ground of appeal.

The second ground of appeal is linked to the first but goes on to suggest that the college was receiving and receipting overheads for the projects done by Appellant.  The Committee in its findings stated.

“No overheads were being paid to the college on previous jobs.”

On page 4 of the Minutes Appellant confirms using an unofficial receipt book in circumstances where the department he was in did not issue receipts.  He confirmed that the receipt book he used was a personal receipt book for Mr. Katuli.  He was aware that it was not a college receipt book.  It is not clear therefore on what basis.  Appellant submitted that the college was receiving and receipting overheads.  If it was doing so certainly it was not for the project that gave rise to the charges Appellant was convicted of.

I find that the circumstances of this case are distinguishable from the authorities cited in Appellant’s heads of argument.  For instance in the Zemura case the Appellant acted on the wrong advice from an official.  In this case there was no advice from any official.  Appellant acted in cahoots with an accomplice Mr. Katuli.  The charges he was facing are on unlawful behaviour which cannot be in any way linked to the Principal.  Failing to account for cash, using an unofficial receipt book and taking on responsibilities not in line with his duties have nothing to do with the official receipting of overheads which Appellant claims gave him authority.

I am convinced that there is no merit in this appeal and accordingly it must fail.

Wherefore I order that

The appeal, being without merit, be and is hereby dismissed.

There is no order as to costs.

MUNYARADZI GWISAI & PARTNERS, Appellant’s legal practitioners