Cecilia Mugadza v Judicial Service Commission

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/MC/16/2013
HELD AT HARARE ON 20 MAY, 2013                    CASE NO. LC/MC/15/2012
In the matter between



CECILIA MUGADZA                                   –          Appellant
And

JUDICIAL SERVICE COMMISSION                   –        Respondent


Before The Honourable L. Kudya, President


For Appellant       -In Person
For Respondent      - Mr. T Dodo (Legal Officer)


KUDYA, L.


      This is an appeal against the decision of the Respondent Disciplinary

Authority which dismissed the Appellant on the basis of charges of corruption

which were leveled against her in 2011.

      The facts of the case are that the Appellant who was in the employ of the

Respondent as a clerk of court based at Chipinge Magistrates Court at the time

of the allegations      was brought before a Disciplinary Committee facing

allegations of contravening the Public Service Regulations 2000 as amended

as read with the Judicial Service Transitional Regulations 2010. In particular,

she was said to have contravened paragraph 13 (a) of these regulations which

reads as follows:

Corruption or dishonesty including any contravention of the Prevention of

Corruption Act Chapter 9: 16



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         Or alternatively paragraph 24 of the First Schedule section 2 of the

Regulations which reads “any act or omission which is inconsistent with or prejudicial to the

discharge of official duties, including the abuse of authority “.




                                                           JUDGMENT NO. LC/MC/16/2013

         She was said to have in connivance with a B .Kuwenyi unlawfully and

intentionally received US$400 from one Chitumwa’s ( T Bere and partners at the

time ) client who had a pending criminal case .Upon being question by

Goredema, a prosecutor also based at Chipinge Court then , the Appellant is

said to have admitted in the presence of Chitumwa and Goredema that indeed

she had received the money in question.

         She is said to have returned the money and apologized about the issue.

Thereafter, the matter was brought to the attention of the Provincial Magistrate

.Ultimately Appellant was suspended from work on these allegations. When the

Disciplinary Committee deliberated her case it was convinced that she had

committed the offence in question. It recommended that the Disciplinary

Authority dismiss her from employment. It is against this dismissal that the

Appellant has now appealed to this court.

The basis of the appeal is as follows:

    1. Respondent erred in concluding that Appellant had connived with

         Kuwenyi when there was no evidence to prove that.

    2.    Respondent misdirected itself by concluding that Appellant had been

         given the required notice to attend the hearing.

    3. Respondent erred by relying on manifestly inconsistent and unreliable

         witnesses’ evidence to find that Appellant was guilty.

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   4. Respondent erred by denying the Appellant the opportunity to call her

        witnesses to support her case

   5.    Respondent erred in imposing a penalty on the Appellant without

        hearing the Appellant’s address in mitigation.




                                               JUDGMENT NO. LC/MC/16/2013

        In the result she prays that the court set aside the decision of the

Disciplinary Authority and to reinstate her to her previous position without loss

of pay and benefits.

On the other hand, the Respondent replied in the following manner:

         1. Appellant admitted the offence in the presence of Goredema and

        Chitumwa, the lawyer for the accused from whom the Appellant had

        received the bribe money.

        2. The hearing was postponed to give the Appellant adequate notice.

        3. The Appellant was found guilty on a balance of probabilities.

        4. The Appellant wanted to call police officers who had cleared her of the

        criminal charges. That evidence would not have advanced her case any

        further as her clearance by the police did not mean she was not guilty of

        the misconduct complained of. To that extent, the ruling of the

        Committee was correct.

        5. The Appellant had no right to mitigate.




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         A reading of the grounds of appeal demonstrates that Appellant

erroneously mixed the grounds of appeal and the grounds of review in the

same case. Since the Respondent did not take issue with that and also given the

fact that on the day of the actual appeal hearing the Appellant was now

conducting the appeal in person having run out of funds to pay counsel to

represent her, the court was compelled to treat the matter as if Appellant was a

self-actor from the onset. The court condoned the mixing of the procedures in

question. This was also done mainly to avoid disposing of the mater on

technical grounds as that would militate against the principle of finality to

litigation which is important in our law.




                                               JUDGMENT NO. LC/MC/16/2013

   The law is clear that the appeal court can only interfere with exercise of the

discretion of the court below it if it can be demonstrate that such exercise was

done in an irrational and irregular fashion. In essence the appeal court would

not interfere lightly with that exercise of discretion unless the irregularities are

so blatant as to amount to bias or malice. See AG vs Howman 1988(2) ZLR 402

(SC)

   As regards the procedural irregularities complained of the law is also very

clear that these should not be ignored but should be put right by either

remitting the matter to be dealt with in a procedurally correct manner or by the

appeal court itself regularizing the anomaly by hearing the matter and purging

the irregularity in question. See Tichawana Nyahuma vs Barclays Bank

Private Limited SC 67/05




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   In any event it is also not all procedural irregularities which vitiate the

proceedings. Only those which go to the root of the case or those which

demonstrate that the Appellant was prejudiced will warrant the upsetting of the

decision of the tribunal below. See Nyahuma (supra)

For clarity of record each of the grounds of appeal will be addressed

individually.

Ground one

   In respect of this ground, the Appellant argues that she did not receive a fair

hearing because she was rushed through a hearing where the notice period for

her to attend the hearing was short. To that extend she submitted that she did

not have adequate time to give her counsel proper instructions on the matter.

   A reading of the record of proceedings demonstrates that the Disciplinary

Committee conceded that the notice period was a day short of the seven days

required by the Regulations. To cure that defect the Committee went on to

indulge the Appellant by allowing the matter to be stood down to the following

day when the dies induciae for the notice would have correctly expired.




                                              JUDGMENT NO. LC/MC/16/2013

   Whilst the court acknowledges that if at the time the Appellant was served

with the notice, she was in hospital with a sick child indeed that would have

militated

against her taking meaningful steps on the matter. Being that as it was the

irregularity on the timelines was however cured by the postponement which

was granted by the Disciplinary Committee. To that extent, the court is satisfied


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that there was thus no misdirection on the part of the Committee in ruling that

the Appellant had adequate notice.

   In any event the law is clear that the reckoning of days includes Saturdays

and Sundays unless where the specific Statute explicitly provides otherwise. The

argument which was advanced by the Appellant that the other days were over a

weekend after she engaged counsel do not detract from the fact that she got

sufficient notice once the extra day was granted by the Committee .

Ground 2

   Appellant argues that there was no evidence of her connivance with

Kuwenyi. What is important to note in this case is that the Committee did not

find her guilty on the basis of connivance as such. Instead, the argument is that

she admitted before Goredema and Chitumwa that she had taken the money

and went on to return the money in question.

   Whether it is that she had done it with the other or alone is neither here nor

there. A reading of the record shows that there was no meaningful challenge

given on the issue of the return of the money by the Appellant and the efforts

she made to co collect the balance of the money from her husband who was

said to be working at TM Chipinge then.

   Appellant argues that there was bad blood between her and Goredema

hence he framed these allegations against her. During her oral submissions in

this appeal, the court asked her why she was of the view that Goredema hated

her to the extent of causing false charges to be leveled against her.

                                              JUDGMENT NO. LC/MC/16/2013

   Her response was to the effect that she was the longest serving clerk at the

court in question hence Goredema just wanted to lower her esteem and cause

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her to lose her job as he viewed her as haughty and showy by her instructions

to new clerks and accountants on how they should go about their work.

   That reasoning in the court’s view does not make much sense. It is clear that

Goredema and she operated under separate departments so the court does not

appreciate how her seniority could offend Goredema. There was no chance of

Goredema taking over from her position at all and neither did any of her day

to day work directly impact on how Goredema operated.

   Assuming for a while that indeed Goredema did not see eye to eye with her,

the court fails to appreciate how Chitumwa and his client would then be roped

in by Goredema in the case. She was not the only clerk at that station and it is

incredible that Chitumwa would have been coaxed to falsely incriminate her.

   Whilst it is correct to say that by virtue of their involvement with the

prisoner from whom money was allegedly taken from, Goredema and

Chitumwa should have known the prisoner’s name ,it would be expecting too

much to have expected them to have kept it in their heads all the while up to

the hearing stage .

   The court notes that the Disciplinary Committee did not press them for the

name of which if it had it is this court’s considered view that they could have

provided same after refreshing their memories from the documents that they

had handled in relation to that prisoner then .

   In the court’s view there is nothing cogent which the Appellant has advanced

to show that the charges were indeed trumped up and that Chitumwa was

influenced to falsely incriminate her. The court is therefore satisfied that the

Disciplinary Committee correctly found that on a balance of probabilities the

appellant had offended as alleged.


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                                             JUDGMENT NO. LC/MC/16/2013

Ground 3

    This ground is intricately linked with ground two in that; it still addresses

the aspect of sufficiency of evidence tendered in the matter founding the

verdict and dismissal of the Appellant. As has already been mentioned the

evidence which was led before the Disciplinary Committee was sufficient to

found the Appellant’s guilt. The court is therefore satisfied that this ground

equally does not have any merit and should also accordingly fail.

Ground 4

   On the calling of witnesses, the Disciplinary Committee ruled that the police

witnesses who the Appellant wanted to call to tell the court that she had been

cleared for the criminal charges could not advance her case any further. This

court does not find fault with that reasoning because it is true that the standard

of proof required in criminal case is much higher than that in a civil case hence

her acquittal or dropping of charges at criminal level could not absolve her from

civil liability in the disciplinary if the evidence demonstrated on a balance of

probabilities that she had breached the code of conduct which governed her

working for the Respondent .

   The record also shows that she merely mentioned that she wanted to call

the police witnesses. Nowhere in the record is it shown that she was barred

from doing so. It appears the comment on this aspect by the Committee in its

ruling was just for completeness of record not that it had barred her from

calling her witnesses.




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   The record does not at all show that her counsel persisted in the request to

call the witness and was denied such a chance. In any event as rightly noted by

the Committee such an exercise would however been one in futility if it had

been allowed to be engaged in for the reasons already advanced above.




                                            JUDGMENT NO. LC/MC/16/2013

Ground 5

   The court notes that Respondent in its response erred by indicating that the

Appellant had no right to mitigate. The law is clear that before a penalty is

imposed the offender must be given a chance to mitigate. See section 12 B (4)

of the Labour Act. It however regularized the position during its oral

submissions on the day of appeal when it indicated that the important point to

note in respect of this ground is the fact that the aggravating factors in the

matter ought weighed the mitigatory factors.

   A reading of the Committee’s recommendation indicates that, given the

position which the Appellant occupied and the system within which she worked,

she had an onerous duty of behaving better than she did hence the need for a

punitive penalty. Such a penalty would also deter other would be

transgressors .The court finds no fault with that reasoning .Even though the

record is not categoric that the Appellant was invited to submit in mitigation,

such an anomaly was not gross as to vitiate all the proceedings since the

comments on the mitigation and aggravation made by the Disciplinary

Committee in adequately addressed the Appellant’s concerns.




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   In the final analysis, it is clear that all the grounds of Appeal which were

placed before the court have no merit and they should all accordingly fail.

It is ordered that

   1. The appeal being without merit in its entirety be and is hereby accordingly

   dismissed.

   2. Each party to bear own costs.




   --------------------------------

   L .Kudya President – Labour Court




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