Cuthbert Munhemba v Ministry of Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/494/2013
HARARE, 28 MARCH, 2013
CASE NO. LC/H/461/2010
JUDGMENT NO. LC/H/494/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/494/2013

HARARE, 28 MARCH, 2013				CASE NO. LC/H/461/2010

AND 25 OCTOBER, 2013

In the matter between

CUTHBERT MUNHEMBA						-	Appellant

Versus

MINISTRY OF EDUCATION					-	Respondent

Before The Honourable B.T. Chivizhe: J.

For The Appellant 	-	F. Ruzive (Legal Practitioner)

For The Respondent	-	Mr S. Maphosa (Civil Division)

CHIVIZHE, J.

The matter was placed before me as an appeal against the determination by the Respondent’s Disciplinary Committee handed down on 16 August, 2010.

The background facts to the matter are as follows:-

The Appellant was employed by the Respondent as a Senior Teacher at a primary school in Harare.  He was on 16 February 2010 charged with violation of Section 44(2)(a) of the Public Service Regulations, 2000 as read with paragraphs 7 and 24 of the First Schedule (Section 2) to the Regulatory that is the allegations were that the appellant had committed various acts of indecency to various female children he was responsible for teaching.  It was Respondent’s allegation that he had on diverse occasions touched the girls’ buttocks, thighs and legs; made the same girls sit on his lap and asked them to climb up some mango trees so that he could peep at their private parts.  The Appellant was also arrested on 9 February, 2010 on a charge of indecent assault based on the same allegations.  He was consequently released on bail.  The criminal trial commenced on 12 February 2010 and was finalized.

Appellant was then suspended from duty from 16th February, 2010 to 16 May 2010.  He was reinstated and was temporarily transferred to a different school.  A disciplinary committee hearing was then convened on the 8th of June, 2010.  At the hearing evidence was led from the individual children who had allegedly been abused by the Appellant.  On the 16th of August, 2010 the Appellant was advised of the findings of guilty by the Disciplinary Committee.  The Committee consequently returned a penalty of discharge from the service with effect from after duty on 17th September, 2010.  Aggrieved by this decision the Appellant then noted an appeal with the Labour Court.

The grounds of appeal as filed in the notice of appeal are;

Allegations not corroborated by anyone though it is alleged they happened in front of the whole class.

Ruvarashe claims abuse on a day that I was absent.

Evidence from Ellen suggesting parental influence was ignored.

Appeal against conviction already lodged with High Court.

On the date of the hearing before the Labour Court the Appellant through his counsel sought to introduce in evidence the record of criminal proceedings.  The Appellant sought to introduce the evidence to show that the complainants had made previous inconsistent statements and that the evidence had been found to be unreliable.  The Respondent initially objected to the production or use of the record on the basis of its authenticity.  When an authenticated record was then produced on the subsequent hearing the Respondent objected in principle to the production of the record.  The basis for the objection was that the evidence in the previous legal proceedings contained in the record of proceedings of the criminal court was not admissible.  The Respondent relied on Section 28(1) of the Civil Evidence Act [Chapter 8:01].  The parties were directed by the court to file heads of argument on the point.

The Appellant through heads of argument filed submitted that evidence tendered in criminal proceedings can be admitted in labour hearings.  The Appellant referred to case authorities in F. Mudyiwa v G.M.B. LC/H/90/2009 and Zimbabwe Electricity Supply Authority v Dera 1998(1) ZLR 500(S).  The Respondent reiterated its position based on Section 28 of the Civil Evidence Act [Chapter 8:01].

The issues for determination before this Court are;

Whether or not evidence tendered in criminal proceedings can also be adduced in labour hearings or proceedings.

If such evidence is admissible in labour proceedings is it not tantamount to admission of new evidence on appeal.

I shall address both issues seriatim.

In respect of the first issue as to whether evidence tendered in criminal proceedings can also be adduced in labour hearings or proceedings the question has to be answered in the affirmative.  Section 28 of the Civil Evidence Act [Chapter 8:01] referred to by the Respondent counsel provides as follows;

“28.	Evidence in previous legal proceedings

(i)	Where a person had previously-

(a)	given evidence; or

(b)	made an affidavit that was produced in evidence; in any legal proceedings, whether civil or criminal, and he had died or cannot be found or compelled to give evidence or for some other good and sufficient cause cannot reasonably be called to give evidence in or make an affidavit for the purposes of any subsequent civil proceedings, a document which purports to be-

(i)	a transcript of his evidence or a copy of his affidavit, as the case may be, in the former legal proceedings; and

(ii)	certified by the official having custody of the record of the former legal proceedings as a true transcript of the evidence or copy of the affidavit, as the case may be, shall be admissible on its production by any person as evidence of the fact stated therein.

(2)	Subsection (I) shall apply even if the evidence concerned was not recorded verbatim and the transcript of the evidence was taken from notes made by the person presiding at the proceedings.”

It would appear from the provisions in Section 28 of the Civil Evidence Act [Chapter 8:01] that evidence in criminal proceedings can only be admissible where the person who gave evidence in the previous legal proceedings has either died or cannot be found or be compelled to give evidence or for some other good and sufficient cause cannot reasonably be called to give evidence in any subsequent civil proceedings.

It is clear that in casu, all the girls who were complainants in the criminal trial also gave evidence at the disciplinary hearing.  None of them had died or had for some reason become incapacitated to give evidence in the disciplinary hearing.

Section 32 of the Civil Evidence Act [Chapter 8:01] also provides for instances where a witness has made a previous inconsistent statement.  The section reads as follows;

“32.	Proof of previous inconsistent statement

(1)	Any party to civil proceedings may prove that a witness who has given evidence in the proceedings has previously made a statement inconsistent with his testimony, whether or not the previous statement was made on oath and whether or not the witness has been declared hostile:

Provided that, before the previous inconsistent statement is proved, the witness shall be asked whether or not he made the statement and shall be given sufficient particulars of the statement to enable him to identify the occasion on which it was made.

(2)	Where a previous inconsistent statement has been proved in terms of subsection (1) or has been admitted by the witness who made it, then depending on all the circumstances, the court may give credence to the previous statement or to the witness’s testimony or may disbelieve both.”

It is clear that in terms of Section 32 it is up to the party who alleges that a witness has made a previous inconsistent statement to prove that it is so.  Before establishing the proof however the particular witness should be asked whether or not he made the statement and shall be made to confirm when the statement was made.  Once the previous inconsistent statements has been proved it is then up to the court to place reliance on the previous statement or the testimony before the court or disregard both.  Clearly therefore the Appellant ought to have raised the issue of the perceived inconsistent statements by the complainants during the disciplinary hearing.  The issue cannot be raised in the present appeal hearing.    The complainants would clearly be deprived of their right to respond as enshrined in Section 32(1) of the Civil Evidence Act [Chapter 8:01].

The second issue raised is whether the evidence amounts to new evidence.  It is Appellant’s submission that the evidence is not new.  The Respondent’s position is that the evidence being sought to be brought before the Labour Court is fresh in the sense that it was not placed before the disciplinary hearing.  I concur with the Respondent’s position on this point.  There is clearly existing evidence either in the form of written or oral testimony by the complainants.  This evidence is not new having already been placed before the Magistrates Court and the Disciplinary Committee.  What is fresh evidence however is the evidence that the Appellant seeks to place before the Labour Court which is evidence of the inconsistency between the complainants’ oral or written testimony before the Magistrates Court and their testimony before the disciplinary hearing authority.

The present appeal is based on the four corners of the record.  Appellant did not seek to prove the inconsistency in the witnesses’ statements during the Disciplinary Committee hearing.  The decision of the Disciplinary Committee was based on the evidence placed before it and it is this court’s duty to scrutinize the decision of that committee in light of the evidence adduced.  This court would then come to a decision on whether the disciplinary committee misdirected itself on the evidence given.  In addition no sufficient reason has been placed before the court as to why if the evidence of inconsistency was available to the Applicant that evidence was not placed before the Disciplinary Committee at the material time.  In the circumstances the application for the inclusion of the alleged inconsistent evidence tendered in the proceedings a quo cannot succeed.  It is consequently dismissed with no order as to costs.

Nyawo Ruzive Legal Practitioners, Representing the Applicant.

Civil Division of The Attorney-General, Representing the Respondent