A Musonza v Permanent Secretary of Primary & Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/699/2014
HARARE, 18 SEPTEMBER 2014
CASE NO.
JUDGMENT NO. LC/H/699/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/699/2014

HARARE, 18 SEPTEMBER 2014	                         CASE NO. LC/H/289/14

AND 24 OCTOBER 2014

In the matter between

A MUSONZA							Appellant

And

PERMANENT SECRETARY OF PRIMARY			Respondent

& SECONDARY EDUCATION

Before The Honourable P. Muzofa, Judge

For Appellant	-	E. E. Matika (Legal Practitioner)

For Respondent	-	Kasere (Civil Division)

MUZOFA, J:

The appellant was employed by the respondent as a teacher at Madziwa Mine Secondary School.  Following allegations of improper association with two female students, appellant was charged in terms of paragraphs 4, 7 and 24 of schedule (1) of the Public Service Regulations, Statutory Instrument 1 of 2000.  Appellant was found liable for improper association with one of the students and in respect of the second student he was found not liable.  Appellant was discharged from service.  Appellant then noted an appeal to this court.  I will address the student as the complainant for convenience.

The two grounds of appeal challenge the adequancy of evidence and the penalty meted by the committee.  I will address the grounds of appeal in turn.

Adequancy of evidence

It is a well established principle of law that in civil matters wherein labour matters fall within the standard of proof is on a balance of probabilities.  See generally ZESA v DERA 1998 (1) ZLR 452 (S).  In assessing circumstantial evidence this court`can do no better than be guided by the dictum in the case of Ebrahim v Pittman No. 1995 (1) ZLR 176 HC.  In that case the court cited the case of Govan v Skidmore 1952 (1) SA 732 at 734B:

“… in a civil case, for, in finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on evidence 3 ed para 32, by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

In casu therefore the court has to balance the probalities presented by the evidence of both parties and select a more plausible one.  The first witness called by the respondent was the complainant.  Her evidence was that she went to the appellant’s house to visit her friend who is appellant’s niece.  She knocked on the door, there was no response she entered the house through the kitchen.  She saw no one in the kitchen when she was about to leave appellant appeared.  Appellant proposed love to her, dragged her to his bedroom where he lifted her blouse and kissed her left breast.  In the process appellant suspected someone to have entered the house, he lifted the girl and dropped her out of the house through his kitchen window.  On her way from appellant’s house she met a lady teacher Ms Madzinge who asked her why she came out the house through the window.  She did not respond.  She proceeded walking and met appellant who was heading for the shops.  Appellant admonished her not to tell anyone.  She later wrote what transpired after being asked by the senior lady (Miss Ntini) She did not report the matter to her parents as she said she was afraid.  Appellant later phoned her through her friend trying to persuade her not to tell the truth.

The second witness Ms Mudzinge gave evidence.  Her evidence was to the following effect – she shared the house with appellant.  She used three rooms there was one entrance to the house.  The entrance was first into the witness’ rooms.  On the fateful day she was standing by a bus stop near their house.  She saw the complainant enter the house.  She decided to go to her house.  When she was near the house she saw the complainant get out of the house through appellant’s kitchen window.  She asked why the complainant did that she did not respond.  The witness reported the matter to the senior Teacher Miss Ntini.  Under cross examination she said it was around 1400 hours when she went home, she saw appellant enter the house, she did not see him until she went out to the bus stop.  When she returned from the bus stop she entered the house and sat in her sitting room.  She did not see appellant.

Two more witnesses were called whose evidence I believe did not take the respondent’s case any further.

Appellant gave evidence and called one witness.  Appellant said at the time of the alleged improper association he was at a nearby bottle store, he was there until around 0200 hours.  He claimed the complainant was used to settle scores by some teachers.  He did not elaborate on that aspect.  Appellant called a witness one William Vutata.  Vutata was a fellow teacher his evidence was that on the 24th of May 2013 he met appellant at the beer hall around 1500 hours.  They drank beer till late.  He did not know if appellant at one point went to his house.  He did not discount a possibility that appellant could have returned home or even left the beer hall to chat with friends, since he did not closely monitor the appellant’s movements.  However he was certain they drank beer until the early hours of he following day.

What falls for determination first is whether appellant was at the house at the time complainant got to the house.  From the evidence that was before the committee I am inclined to believe the appellant’s version.  The sum total of appellant and his witness’ evidence is the more plausible.  I say this for the following reasons.  The witness Mudzinge under cross examination said she proceeded to her house she shared with appellant around 1400 hours, she saw appellant getting into the house but did not see him until she left for the bus stop.  When she returned from the bus stop she did not see the appellant, she just sat in her sitting room.  However it is when she was approaching the house that she saw the complainant get out of the house through the window.  According complainant’s version appellant was in the house when Miss Mudzinge got into the house. There was one entrance, I believe and one exit.  The entrance was first into Miss Mudzinge’s rooms.  In my view since Miss Mudzinge seated herself in her sitting room.  She could have heard appellant leaving the house.  She said she did not hear any noise or sound in the house.  When then did the appellant leave the house going to the shops such that she then passed by the complainant?  It was the complainant’s evidence that when she walked away from the house after meeting Miss Mudzinge appellant caught up with her and told her not to tell anyone about the incident.  The balance of probabilities are that Miss Mudzinge must have seen the appellant leave the house, either while she was still approaching the house or when she was in the house.  The fact that she did not hear any noise then naturally that would mean appellant spent the rest of the day in the house.  That takes me to my second reason for rejecting the evidence presented for the respondent.

The witness Vutata gave clear evidence that he met appellant around 1500 hours at the beer hall.  I do not think the issue of time affects the case.  What is clear from all the evidence is that if the incident took place it must have taken place in the afternoon after work.  It was not in dispute that the appellant left the beer hall late.  Assuming that appellant could have at some point left the beer hall and went home, where he committed the offence he must then at some point left the house but the witness Miss Mudzinge did not see appellant leave the house after the appellant.  Even assuming that the appellant committed the misdemeanour before he even went to the beer hall.  That would mean his alibi is irrelevant.  In my view according to the two witnesses’ evidence Miss Mudzinge and the complainant, Miss Mudzinge should have seen appellant leaving the house.  The balance of probabilities favour the inference that the appellant was not in the house when the complainant entered the house and subsequently jumped through the appellant’s kitchen window.

Complainant’s evidence also contradicts itself.  She said appellant dragged her to the bedroom.  When appellant suspected that someone entered the house he lifted her and threw her out using the kitchen window.  It is not clear whether appellant had returned with her to the kitchen.  Apparently the evidence showed that no one had entered the house.  Miss Mudzinge entered the house after the incident.

The question remains why the complainant jumped through the window.  A reconstruction of the events from the evidence can provide a reasonable explanation.  Firstly complainant knocked at the door, there was no response but she entered all the same.  Secondly Miss Mudzinge said when she reported to the senior Teacher she suspected that complainant wanted to steal, her ice cream was stolen in the past, she did not know who stole it.  Although this was not pursued as it was irrelevant to the case I believe that it presents an alternative explanation.  The complainant might have intended to visit her friend, but realizing there was no one in the house she could have had other thoughts.  When she saw Miss Mudzinge approaching the house she escaped through the window.  When asked by Miss Mudzinge why she came through the window she did not respond but appeared fearful.  Either way she had reason to be afraid, if she had intentions to steal she was supposed to be fearful.  If indeed appellant was about to sexually assault her she was supposed to appear shocked and fearful.  I cannot hold anything against her for failing to report immediately to Miss Mudzinge when an opportunity had presented itself.  The evidence as indicaed before does not support the latter possible reason of the complainant’s fearful state.

From the foregoing I donot believe that on a balance of probabilities there was evidence to show that appellant committed the misdemeanour as alleged.  There is no need to deal with the second ground of appeal having made the finding above.

Accordingly the following order is made.

The appeal be and is hereby upheld.

The respondent is ordered to reinstate the appellant to his position without any loss of salary or benefit from the date of dismissal.

No order as to costs.

MUNYARADZI GWISAI & PARTNERS, Appellant’s legal practitioners