Dion Magavhana v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/450/2016
HARARE, 8 JUNE 2016
CASE NO. LC/H/450/2016
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/450/2016

HARARE, 8 JUNE 2016					     CASE NO. LC/H/821/14

AND, 22 JULY 2016

In the matter between:-

DION MAGAVHANA						Appellant

And

PUBLIC SERVICE COMMISSION				Respondent

Before Honourable Murasi, J

For Appellant	Mr M. Mazani (Legal Practitioner)

For Respondent	Ms T. Musangwa (Legal Officer)

MURASI J:

Appellant was employed as a teacher by the Respondent.  Following allegations of misconduct, he was brought before a Disciplinary Committee which found him guilty and recommended his dismissal.  Appellant is dissatisfied with the decision and has approached this Court for relief.

Appellant avers that no evidence was addressed to show that he had stolen the books in question.  It was further alleged that the Headmaster had been called to testify and indeed had confirmed that no books were missing from the school.  Appellant further submitted that the plea of guilty he had tendered at the Magistrates’ Court had been the result of undue pressure from both the police and the education officials involved in the investigation.

There was no response filed by the respondent.  Ms Musangwa, who appeared for the respondent was at pains to explain why no response was filed.  She stated that the reason was that when the instructions were received at their offices on 20 October 2014, there was no reference number on the documents.  She further alleged that a Ms Ndlovu who has since left the office had handled the matter and she does not know why the response was not filed.  When asked by the Court as to why the Registrar had not been approached when they found out that no Case Number was reflected on the documents, she was unable to give a response.  The Court further noted that respondent’s Counsel did not attempt to make any application for condonation for late filing of the response.  It is trite that in such cases where a litigant applies for the discretion of the Court to condone an infraction of Rules of the Court, candidness is of prime importance.  It is clear that the explanations tendered by respondent’s Counsel are deficient in that ingredient.  The explanation vacillates from the absence of a case number to the fact that the matter was not properly handled by a former employee.  In fact no explanation has been tendered for the non-filing of the response.  In KM Auctions (Pvt) Ltd vs Samuel and Another S 15/12, GOWORA AJA (as she then was) had occasion to deal with the issue of non-compliance with the rules of the Court.  It was held in that case that negligence or lack of attention to detail on the part of a legal practitioner could not be an explanation that the court should find satisfactory.  It was further held that there was a limit beyond which a litigant could not escape the results of the lawyer’s lack of diligence or the insufficiency of the explanation tendered as to hold otherwise would have a disastrous effect upon the observance of the rules of the court.  In casu, respondent’s Counsel admitted that the instructions were received at their offices in October 2014.  Up to the date of the hearing no response was filed with the Court.  Such a flagrant disregard of the Rules of the Court cannot be condoned.  It is on the basis of the aforestated facts that the Court declined to uplift the bar operating against the respondent.

The Court will now turn to the merits of the case.  At the beginning of the hearing the charge was preferred against the appellant.  It was stated thus:

“The ground on which the charge was based are that he stole three (3) Education Transaction Fund (ETF) Grade 7 Step in Pindukai text books from a source best known to himself” (own emphasis)

The Disciplinary Committee did not know from whom the books were stolen.  The complainant was said to be known to the appellant.  Was the charge of theft appropriate in the circumstances? I will leave this issue and proceed to the hearing itself.  The appellant stated in the hearing that he bought the books from a vendor. One Mhuriro makes the following observation:

“It is an offence to buy books from the street with a logo.”

It is not clear on what legal basis this statement was made.  The Disciplinary Committee member seems to come up with his own opinion and makes it a law during the course of the hearing.  Before appellant’s Headmaster was called in, one Karuma makes the following observation:

“It is not material that Grasslands Primary does not have missing books.  We were accounting for ETF books nationally.”

It is clear that the appellant was not being charged with theft from the school where he worked.  It therefore boggles the mind as to why the Headmaster had to be called to testify.  The Headmaster stated that no books were stolen from the school.  What becomes worrying are the comments by the Chairman when the Headmaster was giving evidence.  He states thus:

“There must be connivance.  In your report you used the lawyer’s defence instead of the teacher’s response.  The DEO must be told to charge the Head for connivance with the teacher.” (own emphasis)

This indeed is a worrying trend where a witness is threatened for giving evidence which tended to be favourable to the appellant.  The chairman further instructs the Headmaster to go and collect the books held at the Court as exhibits:

“You have to follow up on the books.  These are school property.”

This statement and instruction are given by the Chairman despite the fact that the Headmaster had given his evidence to the effect that the books did not belong to the school.  The Disciplinary Committee thereafter proceeded to find the appellant guilty stating that he had failed to call his witnesses.  The appellant had clearly informed the panel that witnesses had refused to come and testify.

In the premises can be said that the charges against the appellant had been proved on a balance of probabilities?  It has been 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 throw the onus on the other side to rebut it.  The appellant was charged with theft.  No evidence was led as to the fact that these books were reported missing.  Appellant stated that he bought the books from a vendor and wanted to utilise them for private lessons.  This was not rebutted during the course of the hearing.  As to the conviction at the Magistrates’ Court, appellant explains that he was under duress when he tendered a plea of guilty.  The proceedings that were before the Disciplinary Committee were of a different nature and the charges were supposed to be proved on a balance of probalities.  In my view, this was not done.

The Disciplinary Committee clearly did not have any semblance of evidence on which to convict the appellant.  I share the sentiments of GILLESPIE J in S vs Jojo Mbiri HH 239/98 where he had this to say:

“In my estimation this is a classic example of the court massaging the evidence in order to have it fit a pre-conception.  That is not the way to do things.  It should scarcely need saying that one must examine the evidence first and see what it proves rather than arriving at a pre-conception first, and see whether it can, no matter how, be supported.”

The Headmaster at appellant’s school gave evidence to the effect that he had not even seen the alleged stolen books at the time he gave his evidence.  He was not aware what sort of books these were.  The Headmaster’s evidence was that no books were missing from his school.  No evidence was led from the Education Offices who “recovered” the books to show where the books were “stolen”.  I am left in no doubt that the Disciplinary Committee fell into error in convicting the appellant when there was no evidence to prove the charges.  It is also clear that the charge preferred against appellant was the wrong one from the very beginning.  A substantial wrong or miscarriage of justice would be occasioned by allowing the decision of the Disciplinary Committee to stand.

For the aforestated reasons the Court is of the considered view that the appeal is with merit and ought to be allowed.

The Court makes the following order;

The appeal is allowed.

The decision of the Disciplinary Committee finding the appellant guilty and the subsequent decision of the Disciplinary Authority to dismiss the appellant are hereby set aside.

The appellant is to be reinstated to his former position without loss of salary and benefits, with effect from the date of dismissal.

If reinstatement is no longer possible, appellant shall be paid damages in lieu such reinstatement the damages of which may be agreed upon by the parties failure of which either party may approach the Court quantification.

Each party to bear its own costs.

Mazani & Associates, appellant’s legal practitioners

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