Alice Musakasa v Health Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/151/25
HARARE, 14 OCTOBER 2024
CASE NO LC/H/428/24
In the matter between:
ALICE MUSAKASA
APPELLANT
HEALTH SERVICE COMMISSION
RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE  JUDGMENT NO LC/H/151/25

HARARE, 14 OCTOBER 2024  CASE NO LC/H/428/24

In the matter between: -

ALICE MUSAKASA  APPELLANT

HEALTH SERVICE COMMISSION  RESPONDENT

Before the Honourable Kudya J

For the Appellant  K. Kando (Legal Practitioner)

For the Respondent  D. Machingauta (Law Officer)

KUDYA, J:

This matter was set down as an appeal against the guilty verdict and dismissal penalty which was meted out on appellant employee. On the hearing date the parties requested that the matter be determined based on the papers filed in IECMS. This judgment is therefore based on the papers filed in IECMS.

The background of the matter is that, the appellant who was in the employ of the respondent as a senior tutor was brought before a disciplinary committee facing allegations of engaging in conduct which was inconsistent with the conditions of her employment, in breach of the Health Service Regulations. In particular, she was accused of forcing student nurses to pay money as a form of punishment. She was also accused of threatening student nurses with back grouping as a form of intimidation if they failed to comply with her demands.

A hearing which was conducted in her matter on 30 May 2023 resulted in a not guilty verdict being returned on the matter. She was subsequently retried on 15 November 2023, it being alleged that, witnesses who had not been brave to testify in the 30 May 2023 hearing were now brave to do so. The proceedings of 15 November 2023 culminated in a guilty verdict and recommendation that appellant be transferred to another hospital, warned not to commit a similar infraction within 12 months and withholding of a month’s salary. The disciplinary authority however penalised her with dismissal. Unhappy with the loss of her job, she appealed internally citing among other things a breach of procedure being the holding of 2 separate disciplinary proceedings on the same facts with 2 different outcomes and dearth of evidence leading to her job loss. The internal appeal was unsuccessful.

The failure of her internal appeal led her to file the appeal which is the subject of this judgment. The main thrust of the appeal grounds is summarised below:

1. Appeals body erred grossly at law to conclude that a re-hearing of the matter on account of new evidence was not a nullity and violated provisions of Section 46 (1) of the **Health Service Regulations SI 117/06**.

2. Appeals body erred by not finding that there was no link between the charge and the verdict. In particular, appellant was found guilty of forcing students to buy her wares at exorbitant prices and vending yet she was never charged for that.

3. Appeals body erred to uphold the guilty verdict which was birthed by single speculatory inconclusive, contradictory and hearsay evidence given by a student nurse who had a personal vendetta with appellant.

4. The dismissal penalty was unduly harsh, if regard is had to the fact that, the disciplinary authority disregarded without cause, the recommendation of a less severe penalty which had been suggested by the disciplinary committee.

In the result, the appellant prayed that:

1. The appeal succeeds with costs
2. Determination of 28 March 2024 be set aside.
3. Determination of 28 March 2024 be substituted with the success of the internal appeal and that appellant be reinstated to her job without loss of salary and benefits.
4. Alternatively, the guilty verdict portion of the determination of 28 March 2024 be upheld but, the dismissal penalty be substituted with a severe reprimand of warning of dismissal if appellant commits a similar offence within 12 months, she be reassigned to another hospital to take up duties in the clinical area and that she forfeits one month salary.

In her heads of argument, the appellant stated in *limine* that, there was no opposition to the appeal judging from the fact that, there was no board resolution authorising the deponent to depose to the opposing affidavit on behalf of the respondent. It argued further that, the deponent did not state with sufficient particularity why he was of the view that, he could competently defend the action on the respondent’s behalf. She finally argued that, the opposing affidavit was improperly commissioned since it bore 2 dates 08 May 2024 and 13 May 2024 thus making it unclear as to when exactly the commissioning took place. In the result, the appellant prayed that, on the success of the point in *limine* the matter be treated as unopposed and a default judgment be returned leading to the success of the unopposed appeal.

In response to the appeal, the respondent maintained in *limine* that, ground 1 of the appeal was not properly before the court as it is an attack of procedure which should competently be brought through a review application. It therefore prayed that the 1st ground be struck off.

In response to the appellant’s points in *limine*, respondent stated that, the deponent to the opposing affidavit was duly authorised by the Commission to represent it in the instant proceedings. It to that end, filed with the court a board resolution stamped 19 February 2024 referring to an extract of the minutes of the Commission of 31 January 2024 where the Secretary for the Commission was authorised to represent the Commission in lawsuits.

Respondent however, did not address the issue of the 2 dates on the opposing affidavit. It also stated in *limine* that ground 1 of the appeal was effectively a ground for review questioning the procedure which was adopted by the disciplinary committee, resulting in the appellant’s job loss.

On the merits plane it maintained that:

1. Ground 1 which it says is a review ground, if the court disagrees with that view its comment would be that the law in section 46 of S.I /17/ allows the Commission to act as it did. It says, there was nothing wrong with causing the appellant to go through a second disciplinary process on the same charges since, the synonymous statements relied upon in the 2nd hearing were the same ones which were used in the 1st hearing.


The only addition was that, the witnesses who had not been brave to testify in the 1st hearing were now brave to do so and one did testify in the 2nd hearing resulting in the guilty verdict and the ultimate dismissal penalty.

2. There was no mismatch between the charge and the verdict. The appellant was charged with forcing students to pay money as punishment. The disciplinary committee found that, appellant was directly involved in the collection of money from the student so the guilty verdict was arrived at properly. The appeal ground should fail. The ground which says appellant’s guilt was birthed by insufficient and improper evidence cannot stand at law. Enough evidence was led on a balance of probabilities. The single witness was credible. The ground should fail.

3. There is no evidence that, the disciplinary committee and the authority did not consider mitigation. Both mitigation and aggravation factors were presented before a penalty was meted on appellant. Aggravation outweighed mitigation resulting in the dismissal penalty. The discretion to penalise an employee remains with the employer. There is no misdirection on how the dismissal penalty was arrived at. In the result, the respondent prayed that, the appeal be dismissed with costs on a higher scale.

For clarity of record, all the points in *limine* are disposed of first.

**Improper opposing affidavit**

On 15 October 2024 that is, a day after the hearing of the appeal at the Labour Court on 14 October 2024 the respondent filed a resolution by the Commission, which resolution was stamped 19 February 2024 and, referred to minutes of 31 January 2024 wherein the Commission authorised the Secretary to, among other duties, defend it in lawsuits. The filing of this resolution put to paid the point in *limine* that the deponent to the opposing affidavit was not authorised to defend the respondent. The filing of the resolution was in sync with what has to be done when the question of authority of representation is queried by another party. See

**Dube v PSMAS SC 79/19.**

On the question of the commissioning of the affidavits, it is indeed settled that, an affidavit has to be properly commissioned. See **Ndoro v Conjugal Enterprises Pvt Ltd HC H 814/22.** It is however noteworthy that, the anomaly on the 2 dates on the affidavit can be classified as clear typographic error which does not detract from the content of the affidavit. The dates issue being technical in that respect and being incapable of resolving the matter on the merits it can be excused. See *Mapondera + 55 others v Freda Rebecca Gold MineSC81/22* The point in *limine* vis irregular opposition therefore fails.

**Irregular ground one of the appeal**

Respondent states that the query about a 2nd hearing on the same matter is a review issue. The appellant says it is not. She says it is a point of law which can be raised properly on appeal. It is settled that a failure to determine a matter according to law is an appealable issue. See **Hama v NRZ 1996(1) ZLR664**. In the case at hand, the argument is that, subjecting appellant to 2 disciplinary processes with 2 different outcomes is a point of law. A point of law is defined in **Sable Chemicals v Easterbrook SC18/10**. It is clear that, an alleged wrong use of Section 46 (1) of the Regulations is indeed a point of law. The point in *limine* saying ground 1 is not properly before the court is therefore dismissed for lack of merit.

Having decided the points in *limine*, all that is left is, to determine the merits of the appeal. The determination appears below:

**Ground 1**

The contest under this ground is around **Section 46 (1)** the **Health Services Regulations S.I 117/06**. It reads as follows:-

“...... On receiving the documents referred to in **Section 45 (6)** the disciplinary authority may .... (a) refer the matter back to the disciplinary committee for further hearing ....”

**Section 45 (6) states:-**

“---- At the conclusion of the hearing or soon thereafter as possible the chairperson of the disciplinary committee shall submit to the disciplinary authority (a) a notification in writing of its findings and recommendations thereon, including a recommendation as to the penalty to be imposed upon the member where it finds the member guilty of misconduct and (b) the record of evidence led at the hearing -----”

What is clear from the cited provisions is that the disciplinary authority does indeed have powers to direct that a case be referred back to the committee for further hearing. It need be noted that, powers of the committee and those of the authority as set out in the quoted sections are clearly distinct. It is apparent that, the committee powers only extend to what they recommend to the authority. The final say on the outcome of a case rests with the authority. In the case at hand, even though the authority indicated to the appellant that it had found her not guilty that was not within its powers. All it could do was to recommend that the appellant be found not guilty on account of the fact that the evidence which had been led before it was insufficient. It was then up to the authority to take up the not guilty recommendation or to direct that a further hearing be conducted in the matter as provided for by Section 46 (1) of the Regulations.

Appellant says, she was re tried and suffered a double jeopardy in that, she had been acquitted and then later found guilty. Double jeopardy See **Muchena v Police Service Commission HCB 207/23** on double jeopardy. It need be noted however that, there was no double jeopardy to talk about if regard is had to the fact that, the Regulations indeed sanction the re-hearing of a matter where the authority is of the view that there is need for such a re hearing.

In the case at hand, it is apparent that, the not guilty recommendation which the authority refused to accept was against the background that gaps in the 30 June 2024 hearing could be closed by the evidence of the witness and the special audit report. It need be noted that the allegations remained the same. Appellant says, the admission of new evidence could only be done if it was demonstrated why such had not been available at the prior hearing. A reading of the records of proceedings in the matter states that, the witnesses had been timid to testify in the June 2024 hearing. They were now bold to testify. In fact, the witness who eventually testified on 15 November 2024 stated clearly that he had for all intents and purposes been keen to testify but he was however absent when the June hearing was conducted.

It is clear from the above explanations that, there was a gap in the June 2023 hearing which gap needed to be plugged hence the November 2023 hearing. There was nothing palpably wrong with the authority directing that the matter be reheard as per its Regulations. The court is indeed alive to the fact that such a rehearing appears to fly in the face of the maxim that justice must not only be done but must be seen to be done. See **Mupungu v Minister of Justice, Legal and Parliamentary Affairs CCZ7/21**. The committee which had already expressed its opinion on the matter was now being asked to plough the same ground albeit now with the addition of the viva voce evidence. Such a se up therefore ,technically compromised the committee’s impartiality.

This being as it may, it need be noted that the law is clear that Codes of conduct have to be followed to the letter. See **Hurungwe Rural District Council v Moyo SC42/24**. It is also settled that contractual terms need to be interpreted as they are, no matter how onerous the provisions are. See **Magodora v Care International SC24/14**.


In the case at hand, appellant by taking up a job with the Commission which has regulations which seem to breach the impartiality construct by subjecting one to a re hearing of a matter by a panel that would have taken some position prior, held herself to such regulations. The Regulations have not been repealed, In that regard, they stand as they are There was therefore, nothing irregular about the re hearing of the matter. The first ground of appeal being without merit should fail.

**Ground 2**

A reading of the outcome of the disciplinary proceedings against appellant dated 11 January 2024 stated that she had been found guilty as charged. The charge letter dated 03 April 2023 stated that she was accused of engaging in conduct inconsistent with her duties. She was accused of forcing students to pay money as punishment and threatened students with back grouping as a form of intimidation if the students did not comply with her demands.

It is also on record that, during the disciplinary proceedings it was also stated that appellant sold wares at exorbitant prices to the students. It need be noted that the findings made and which led to her being found guilty accepted that she had irregularly got to money from students. It is in this light that she was found guilty. There is nowhere in the verdict where it was said that, she was found guilty of selling wares at exorbitant prices. The decision simply said that, she was guilty as charged. As stated above, the charge was clear on its constituents and it was in sync with the findings which were made on the matter. This ground being without merit should fail.

**Ground 3**

In this ground, appellant says, she was founding guilty on bad evidence if regard is had to the fact that, the single witness who testified in her case had a vendetta with her, so he was keen on seeing her lose her job. It is clear from the evidence led on 15 November 2023 that indeed appellant and the student nurse Chikondo had their differences which they attribute to different placed reasons. Being that as it may, the appellant fails to explain the anonymous reports which were authored by other students and not Chikondo. What is clear from the reports is that, there was something remiss from what appellant and her colleagues were accused of. It need also be noted that, appellant stood high in rank to the students so it was not unusual that they feared victimisation if they decided to come out in the open on the alleged misconduct.


It was also clear that, reporting to their fellow representatives could not help as those representatives also stood inferior to the appellant in rank. In any event, the test for evidence in such cases is proof on a balance of probability See ZESA v Dera SC 79/98. It is also settled that; the appeal court only upsets factual findings only in gross unreasonableness cases. See Hama v NRZ. (Supra). In the case at hand, that threshold was not reached so the appeal ground fails.

Ground 4

It is settled that penalty is at employer’s discretion See Circle Cement v Nyawasha SC60/03. The recommendation by the disciplinary committee was merely a recommendation. It was not binding on the disciplinary authority who was the employer. If conduct is adjudged as going to the root of the contract dismissal can be classed as appropriate. See Innsor Africa Pvt Ltd v Chimoto SC6/12. In the case at hand, there is nothing outrageous about relieving a tutor of her duties where she acted as alleged in the case at hand thus bordering on bringing the institute into disrepute. Students look up to tutors as their mentors and their guides. If these mentors and guides stoop as low as appellant allegedly did, then surely a dismissal penalty cannot be classified as grossly unreasonable. The penalty ground being without merit should fail.

In the ultimate, all appeal grounds being without merit the appeal should fail.

IT IS ORDERED THAT:

Appeal being without merit in its entirety it be and is hereby dismissed with costs on the ordinary scale.

Matizanadzo Attorneys

Appellant’s Legal Practitioners


LC/H/151/25
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