Blessing Madzongwe v Public Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/20/2020
HARARE, 8 OCTOBER 2019
CASE NO. LC/H/154/19
JUDGMENT NO. LC/H/20/2020
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/20/2020

HARARE, 8 OCTOBER 2019		           	   CASE NO. LC/H/154/19

AND 31 JANUARY 2020

In the matter between:-

BLESSING MADZONGWE					Appellant

And

PUBLIC SERVICE COMMISSION				1st Respondent

And

MINISTER OF HOME AFFAIRS AND				2nd Respondent

CULTURAL HERITAGE (N.O)

Before Honourable B.S. Chidziva, Judge

For Appellant		Ms P. Mukumbiri (Legal Practitioner)

For Respondents		Ms M. Mavemwa (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the Disciplinary Committee to dismiss the Appellant from employment.

The brief facts of the matter is that the appellant was employed as an Immigration Officer stationed at the Victoria Falls Airport. His duties included clearance of travellers entering the country by scanning their passports in the electronic Border Management System. This system would reveal whether or not the visitor had applied for and obtained a visa prior to travelling. According to laid procedures a visitor who presents himself to an immigration officer at the point of entry is suppose to produce and present to the clearing officer his passport and an approval letter.

It is alleged that on the 12th of February 2019 the Appellant connived with PIO Mupfurure and IO Pedzisa to manipulate the system by creating double records for two Turkish nationals Bisher Bisher (passport number U06905157), Danga Bisher (passport number UO9273479) and a Korean national, Hoe Beom Lee (passport number M20024295). It is alleged that the three officials scanned the above mentioned passports for both KAZA visas and ordinary single entry. This was done to cover up for the unlawful illegal issuance of single entry visa numbers ZW959769, ZW959770 and ZW959864 to three Bangladesh nationals Uddina Miraj, Yeasin, and Ferosz Kazl who entered the country without prior visa approval. The three illegal immigrants were arrested at the Beitbridge Border Post on their way to South Africa.

The Appellant was then charged with,

Improper and incompetent performance of duties in terms of paragraph 2 of First Schedule.

Dishonesty – falsifying any document with fraudulent intent in terms of paragraph 13 (d) of First Schedule of the Public Service Regulations SI 1 of 2000.

Appellant was convicted of improper and incompetent performance of duties and dishonesty including wilfully giving false information in relation to any investigation or inquiry in terms of the Act.

The Appellant was then dismissed from employment with effect from 28 June 2019.

The Appellant has filed an appeal to this court on the following grounds,

The Disciplinary Authority grossly misdirected itself in finding the Appellant guilty of contravening section 44 (2) as read with paragraphs 2 and 13 (d) of the First Schedule (section 2) of the Public Service Regulations SI 1 of 2000 for improper and incompetent performance of duties and dishonesty including wilfully giving false information in relation to any investigation or inquiry in terms of the Act when the Respondent failed to prove the essential element of the charges on balance of probability.

The Disciplinary Authority grossly misdirected itself in finding the Appellant guilty of the charges on the basis that she did not report loss of a stamp or visa stickers officially allocated to him which fact was not applicable to the Appellant since she had not lost any stamps or stickers and was not even the basis of the charge.

The Disciplinary Authority grossly misdirected itself in finding that the Appellant connived with other employees to defraud the employer when all the evidence led including an audio recording which was confirmed by the two witnesses clearly exonerated the Appellant.

The Disciplinary Authority grossly misdirected itself in holding that the Appellant violated the laid down procedures that prohibit use of cell phone when the Appellant was not charged for that and neither was the issue the basis of the allegations that the appellant was facing.

The dismissal penalty imposed by the Disciplinary Authority was too harsh in view of the circumstances of the case and the submitted mitigatory factors such that it induces a sense of shock in the mind of a reasonable person applying his mind to the issue to be decided upon.

In response the Respondent submitted that,

The Appellant was involved in an improper conduct during the clearance of the two Turks at 1342 hours and 1344 hours on the 12th of February 2019. Her clearance of the KAZA visas requiring Turkish travellers and the issuance of ordinary single entry visas to the same two Turkish passports could not be done without her and the two accomplices manipulating the system. The swift movement and the exchange of the two Turkish passports among then shows that there was convenience.

The exchange of the Korean and Turkish passports with her accomplice was improper and incompetent.

The issuing of a KAZA visa by the Appellant and the issuing of single visas by her accomplices constituted fraud as it created false visas thereby creating false documents in the form of single entry visas.

Mupfurure and Pedzisa could not have been able to cover up for the illegal issuance of the single entry visas for the Korean and Bangladesh National without participation by the Appellant.

It is common cause that,

On 12 February 2019 at 1311 hours IO Madzongwe issued a KAZA visa number 62323 (Annexure C) for US $50 to a Korean national Hoe Beom Lee. The KAZA visa allows a traveller to visit Botswana and Zambia using the same visa.

At 1312 hours the same traveller Hoe Beom Lee was issued a single entry visa number ZW169864 (Annexure D) for US$30 by IO Pedzisa. This visa allows a traveller to visit Zimbabwe once and not to any other country.

The single entry visa number ZW 959864 was found stuck in a passport of a Bangladesh national Ferozi Kazi (passport number BT 0627703) when he was arrested at Beitbridge Border Post.

When IO Madzongwe was issuing KAZA visas to Turkish nationals Donya Bisher (passport number UO9273479) and Bisher Bisher (passport number UO6905157) at 1342 hours P10 Mupfurure was issuing single entry visa to Bisher Bisher at 1342 hours and to Donya Bisher at 1344 hours respectively.

On the day in question IO Madzongwe and IO Pedzisa were seated next to each other in the same cubicle.

What is to be decide is whether or not the appellant was properly charged and convicted.

During the hearing ARIO Mutephe (Page 36) submitted that it was abnormal for a traveller to be issued with two (2) different visas within a short space of time. He also stated during the hearing that once a passport has been scanned the system detects that it has already been scanned that is if the system is functioning well.

If the Appellant was sitting in the same cubicle with P10 Mupfurure there is no way Mupfurure could have grabbed the passports that she would have scanned without her noticing it. Furthermore once a traveller is served he/she is advised by the office to collect his luggage. Therefore it would not be possible for a traveller to pay twice for the same visa.

ARIO Mutepfe in his evidence (Page 38) also said that on the day in question no computer was malfunctioning and if there was any fault she should have been alerted.

In the absence of any evidence of an alarm being raised above the malfunctioning of the system I am of the view that the appellant and her accomplices manipulated the system. There was no way IO Pedzisa could have taken the passport of the clients whom Appellant had serve d and issued other visas without her noticing it because the two officers were sitting next to each other in the same cubicle. It was not possible for the client who appellant had served to be immediately served by IO Pedzisa.

During the hearing evidence was led from an audio recording in which the accomplices exonerated the Appellant. It was established that Appellant used her cell phone to secretly record this audio without the knowledge or approval of the authorities. The accomplices simply stated that they are the ones who knew what happened but hey never clearly stated what they did which exonerates the Appellant. They simply said that,

“Hapana zvaari kuziva .. Isu tisu tinoziva kuti takazviita sei.”

Pedzisa and Mupfurure were also not called as witnesses to give evidence to prove appellant’s innocence. They never explained how the (2) two different visas were issued. This could have exonerated the appellant.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 as read with Miller v Minister of Pensions 1947 (2) ER 372 at 374 the court held that the issue of proof in civil cases is as follows,

“The degree of proof required by the Civil Standard is easier to express in words that the criminal standard because it involves a comparative rather than a quantitative test. The civil standard has been formulated by Lord Deening as follows, ‘It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is much than the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

From the evidence before this court it is more probable that the Appellant connived with her accomplices to manipulate the system by improperly creating double entries for the two Turkish nationals Danya Bisher (passport number U09273) and Bisher Bisher (passport number UO 6905157). This is so because the 2 different visas could not be issued within a minute.

In the case of Selamulele vs Makhado 1988 (2) SA 372 at 375 D – E it was also held, that,

“It is not a mere conjecture or slight probability that will suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it.  It must be of sufficient weight to show the onus on the other side to rebut it.”

It is my view that the Respondent led sufficient evidence which caused this court to conclude that the Appellant is guilty of the offences she was charged with.

In the circumstances the appeal being unmerited it is ordered that,

The appeal be and is hereby dismissed.

Appellant shall bear costs.

Messrs Mazhetese & Partners, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondents’ legal practitioners