Augustine Mahwana v Zimbabwe Anti-Corruption Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/41/2021
HARARE, 22 MARCH, 2021
CASE NO. LC/H/REV/54/20
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/41/2021

HARARE, 22 MARCH, 2021		               CASE NO. LC/H/REV/54/20

AND 9 APRIL, 2021

In the matter between:

AUGUSTINE MAHWANA							 APPLICANT

And

ZIMBABWE ANTI-CORRUPTION COMMISSION			 RESPONDENT

Before The Honourable Kachambwa J;

For Applicant:			J. Mambara & Partners (Legal Practitioners)

For Respondent:			Civil Division of the Attorney Generals’ Office

KACHAMBWA J:

Background

The applicant was employed by the respondent. He was charged of misconduct and brought before a disciplinary committee. The disciplinary committee found him not guilty of the charge. It made recommendations to the disciplinary authority that the applicant was not guilty but nevertheless that evidence also showed unethical conduct which did not amount to a commission of the charge.

After receiving the recommendations the respondent went on to find the applicant guilty as charged. It applied extraneous evidence to convict and imposed a penalty of dismissal. It said that it proceeded in terms of sections 36 & 41 of the Zimbabwe Anti-Corruption Commission (General conditions of service) Regulations 2017. S.I 141 of 2017. We shall come back to these provisions later.

APPLICATION FOR REVIEW

The applicant applied for review on the following two grounds-

1.	There was gross irregularity in the decision of the Zimbabwe Anti-Corruption

Commission when, without any further evidence before it, rejected the

recommendation of the Disciplinary Committee which found the applicant not

guilty as charged and proceeded to find the applicant guilty on two counts and

dismissed him from employment. In other words the Disciplinary Authority acted

unreasonably when it ordered dismissal.

2.	The Disciplinary Authority seriously misdirected itself when it imposed a penalty

of dismissal without hearing mitigatory circumstances from the Applicant.

In response the respondent first raised a point in limine but abandoned it at the hearing. On the verdict of guilty it said that infact section 36 of the said regulations allows it to make its own decision. It is not bound by the recommendations of the disciplinary committee. On the penalty it was said that the regulations had no provision for mitigation and further that the rules say that the strict rules of procedure and evidence shall not be followed as long as the employee is afforded the opportunity to respond to every allegation and that substantial justice is done.

In his founding affidavit, paragraph 7, applicant says that the regulations only provide for a recommendation on the penalty where the disciplinary committee has found the employee guilty. The respondent denied this in paragraph 5 of its response. This denial is clearly ill informed. Clause 7 (a) of the regulations reads-

“At the conclusion of the hearing or within fourteen days thereafter the chairperson of the disciplinary committee shall submit to the disciplinary authority-

(a)	a notification in writing of its findings and recommendations thereon, including recommendation as to the penalty to be imposed upon the employee where it finds the employee guilty of misconduct; and

(b)	the record of the evidence led at the hearing”.

In paragraph 11 of the founding affidavit the applicant allege that the disciplinary authority used CCTV evidence to convict and yet that evidence was not produced in the hearing. This was said to vitiate the proceedings. The respondent did not deny the allegation, neither in the notice of response nor in the address. The allegation is factually correct though. The respondent could at least have addressed the issue one way or the other.

SECTIONS 36 & 41 of S.I 141/2017

Section 36 of the regulations reads as follows;

“36.    (1) On receiving the documents referred to in section 35(6) the

disciplinary authority may-

(a)	refer the matter back to the disciplinary committee for further hearing; or

(b)	proceed to determine whether or not the employee concerned is guilty of misconduct as alleged.

2.	Where the disciplinary authority determines that the employee is not guilty of misconduct, the disciplinary authority forthwith notify the employee and –

(a)	the secretary, in the case where the disciplinary authority is the Head of Department; or

(b)	the Commission, in the case where the disciplinary authority is the Secretary.

(3)	Where the disciplinary authority determines that an employee is guilty of misconduct, the disciplinary authority shall-

(a) 	proceed to determine the penalty to be imposed upon the employee; and

(b)	notify the employee and, where the disciplinary authority is not the Commission-

(i)	the Commission, in the case where the disciplinary authority is the Secretary;

of its determination and the penalty imposed upon the employee; and

(c)	take such consequential measures as may be necessary in the circumstances.

(4)	It shall be competent for the disciplinary authority to find an employee guilty of an act of misconduct other than the act of misconduct which the employee was originally alleged to have committed, if the facts disclose such other act of misconduct.

Provided that, where the disciplinary committee has not made a finding that the employee is guilty of such other act of misconduct, the disciplinary authority shall refer the matter back for further hearing by the disciplinary committee”.

Section 41 reads;

“41. 	Where a disciplinary authority determines that an employee is guilty of misconduct the disciplinary authority may impose one or more of the following penalties-

(a)	discharge the employee from the Commission;

(b)	call upon the employee to resign with effect from a specified date, failing which the employee shall be deemed to have been discharged as from that date;

(c)	reduce the salary or the grade or the salary and the grade of the employee;

(d)	direct that the employee not be considered for promotion for a specified period;

(e)	 fine the employee an amount not exceeding the equivalent of two months of his or her salary, which fine may be recovered by deductions from the salary of the employee;

(f)	direct that the employee’s performance award be withheld for a specified period;

(g)	direct that the full amount of any remuneration paid to the employee since the misconduct, or such part of that amount as the disciplinary authority may determine, be recovered from him or her;

(h)	direct that the full amount of any allowance paid to the employee in terms of section 40(2), or such part of that amount as the disciplinary authority may determine, be recovered from him or her;

(i)	transfer the employee to another department to such grade and such salary as the disciplinary authority may determine;

(j)	if the employee was responsible for any deficiency in on improper payment from or loss or destruction of the moneys of the Commission, raise a surcharge against the employee in respect of such deficiency, improper payment, loss or destruction, as the case may be-

(i)	as may be fixed by the disciplinary authority; or

(ii)	as may be fixed by the Commission in consultation with the Minister responsible for finance and the Auditor-General;

(k)	if the employee was responsible for any deficiency in or destruction of or damage to Commission property, State property, private property, or the property of any statutory body, statutory fund or local authority, raise an order against the employee requiring or her to pay an amount equal to the cost of replacement of or repairs to the property concerned, as the case may be, or such portion of that cost as the disciplinary authority considers to be equitable in the circumstances;

(1)	reprimand the employee

(2)	The Audit Office Act [Chapter 22:18] shall apply, with the

necessary modifications, in relation to the powers conferred upon the disciplinary authority in terms of subsection (1)(j)or(k), and any references in those provisions of that Act to the Auditor-General or the Minister responsible for finance, as the case may be, shall, for the purposes of this code of conduct, be read and construed as a reference to the appropriate disciplinary authority.

(3)	where a disciplinary authority determines that an employee is guilty of misconduct and discharges the employee from the Commission, the disciplinary authority may direct that the payment of any terminal benefits to him or her shall be withheld until the extent of any deficiency, destruction, loss or damage referred to in subsection (1)(j)or(k) has been determined in terms of the Audit Office Act [Chapter 22:18] or in accordance with these regulations”.

THE APPLICANT’S ARGUMENT

The opposed views are that the applicant argued that section 36 did not give the respondent authority to convict on the same charge where the disciplinary committee had found not guilty. Secondly it did not give it authority to convict on any other charge which the facts might prove. If such other charge was competent the respondent could only refer back to the hearing committee for further hearing. In any case the respondent could not go on to convict on evidence which was not before the disciplinary committee. And on mitigation the applicant’s argument was that he had only been asked to do closing submissions on the sufficiency or otherwise  of the evidence and not on mitigation for the penalty.

The applicant referred to a number of cases on use of evidence that was not produced. He also referred to a case where the regulations are word for word the present regulations, the case of Rangarirai Gozho v Minister of Education, Sports and Culture SC 155/20.

RESPONDENT’S ARGUMENT

The respondent’s view remained that the disciplinary authority did not have to follow the recommendations. It could come up with its own decisions and find guilty. On the penalty it said that the invitation to make closing submissions was the opportunity to address in mitigation and failure to do so must be held against the applicant. Jassel Jasire Nyemba v CMED Pvt Ltd SC 65/15 was referred to.  Further it was argued that a penalty is discretionary and that discretion cannot be lightly interfered with.

Unfortunately there was no response on the use of evidence that was not before the disciplinary committee. Therefore this ground of review is unopposed. On its own it is sufficient to vitiate the proceedings.

ISSUES FOR DETERMINATION

There appears to be three issues for determination in this case as follows;

1.	Is it competent for the Disciplinary Authority to convict on evidence which had not been placed before the applicant?.

2.	Do the regulations allow the Disciplinary Authority to make its own finding of guilty on a charge on which the applicant was acquitted by the disciplinary committee?.

3.       Was it competent for the Disciplinary Authority to impose a penalty without the applicant addressing in mitigation?.

USE OF EXTRANEOUS EVIDENCE / FACTS

Using evidence which was not brought to the attention of the employee is as good as

not hearing the employee. It defeats the whole notion of justice. It is irregular. It is not

in accordance with the concept of natural justice. It defeats the “audi alterum partem”

rule. It entitles the court to set aside the outcome.  A person may not be convicted on

evidence that he was not given an opportunity to challenge. What is worse in the

present case is that the evidence  was discussed at the hearing and was not produced.

It was not tested against the applicant because he successfully objected to its

production. Therefore this ground alone is sufficient to set aside the finding without

even considering whether the respondent has a right to come up with its own decision

contrary to the decision of the disciplinary committee.   The case of Shorai Mavis Nzara

and 4 others v Cecilia Kashumba & 4 others  SC 18/18 extensively discuss the use of

extraneous evidence and says it should not be done.

DOES THE DISCIPLINARY AUTHORITY HAVE AUTHORITY TO MAKE A

FINDING OF GUILTY CONTRARY TO THE FINDING BY THE DISCIPLINARY

COMMITTEE?.

The wording of sections 35 and 36 of the regulations is problematic. As already pointed

out this wording is similar to those of the Public Service Regulations. The disciplinary

committee makes recommendations to the disciplinary authority. Normally

recommendations are just recommendations. They are not to be necessarily followed.

Such an approach would be in sinc with section 36(1) (b) of the regulations which says

that-

“36(1)		 On receiving the documents referred to in section 35(6) the

disciplinary authority may  -

(a) …..

(b) proceed to determine whether or not the employee

concerned is guilty of misconduct as alleged.” (my

emphasis).

It would appear then that the first time that a binding decision is made on the guilty or otherwise of the employee is when the disciplinary authority decides. That is the only appealable decision. It would not be consistent to say that where the finding by the disciplinary committee is one of guilty then the disciplinary authority can change it to one but when it is one of not guilty it cannot change it. It must be changeable either way. But be that as it may this was not argued by the parties though it is logical.

The respondent’s argument is that the disciplinary authority could act in terms of section 36 (4) of the regulations which is word for word section 46 (4) of the Public Service Regulations, 2000. The sections read;

“It shall be competent for the disciplinary authority to find a member guilty of an act of misconduct other than the act which the member was originally alleged to have committed if the facts disclose such other act.

Provided that, where the disciplinary committee has not made a finding that the member is guilty of such other act, the disciplinary authority shall refer the matter back for further hearing by the disciplinary committee”.

What is clear from the section is that it is talking of a different offence and not the offence the employee was charged of and on which a pronouncement was made. That is not the present scenario. Here we have the same charge. Of the present scenario, the Supreme Court in Rangarirai Gozho v Minister of Education, Sports and Culture SC 155/20 held, at page 11 of the cyclostyled judgment, that-

“The Disciplinary Authority in casu proceeded to find the appellant guilty of the charge for which he had been exonerated which it clearly did not have the power to do” per Guvava JA. (my emphasis).

Thus the long and short of it is that a disciplinary authority may not change a finding of not guilty to one of guilty on the same charge and facts. Section 36 (4) of the code is not applicable. If the employer would like to have such authority it is necessary to be explicit in the regulations.

WAS IT COMPETENT FOR THE DISCIPLINARY AUTHORITY TO IMPOSE A PENALTY WITHOUT HEARING MITIGATION?

It is common cause that a penalty should not be imposed before the employee has been given an opportunity to address in mitigation. The applicant said that that opportunity was not availed when the applicant was invited to file closing submissions. Normally closing submissions address the sufficiency or otherwise of the evidence. It is not about the penalty. If there is need to hear in mitigation a specific request is made. To allege that the applicant gave up the right to address when such was not specifically requested would seem to be overstretching it. There is need for a clear waiver of the right. That is not clear in the circumstances. It cannot be said that the applicant waived his right. Therefore it was not competent for the respondent to impose a penalty without specifically inviting the applicant to address in mitigation.

VERDICT  The applicant has succeeded on all the points. Therefore the application succeeds. It is important to note that under normal circumstances when an application for review succeeds it does not result in a decision on the merits. It would seek to correct the wrong procedure. In this case the result is in setting aside the verdict of guilty. The applicant has prayed for reinstatement rather than that the matter be referred back to the respondent to consider properly in terms of the rules. That prayer was not opposed. Respondent could indeed have argued that the matter be referred back for it to consider whether the facts/evidence adduced proved some other misconduct requiring that the matter be referred back to the disciplinary committee. That is not the argument before the court. It is indeed also competent for a court to make a decision that brings the matter to finality rather than refer it back if such are the circumstances.

In the circumstances there is no objection to the prayer. There is no mention of any other possible misconduct that the applicant should be convicted of. Consequently the prayer by the applicant is accepted unchallenged. It is accordingly ordered as follows;

1.	The application for review be and is hereby upheld with costs.

2.	The conviction by the disciplinary authority and the penalty imposed be and are hereby set aside.

3.	The respondent be and is hereby ordered to reinstate the applicant into his post without loss of any salary and benefits.

4.	If reinstatement is nolonger possible the respondent shall pay damages in lieu thereof the quantity of which maybe agreed between the parties failing which agreement either party may apply to the court for quantification thereof.

J. Mambara & Partners	-	Applicant’s Legal Practitioners

Civil Division of the Attorney General’s Office	-	Respondent’s Legal

Practitioners