Dumisani Nyathi v Republic of South Africa (Harare Embassy)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/416/25
HARARE, 16 OCTOER 2025
And 28 OCTOBER 2025
CASE NO LC/H/134/19
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/416/25

HARARE, 16 OCTOER 2025

And 28 OCTOBER 2025	CASE NO LC/H/134/19

DUMISANI NYATHI	APPELLANT

REPUBLIC OF SOUTH AFRICA	RESPONDENT (HARARE EMBASSY)

For Appellant	- B. Kashangura, Attoney

For Respondent	-M. Mbuyiso, Attorney

-T. Vudzijena, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal is provided for by section 92D of the Labour Act Chapter 28:01 hereafter called the Act, Respondent opposed the appeal.

The grounds of appeal were eight-fold as follows;

“1. The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Presiding Officer erred at law and grossly misdirected itself when it made a finding that the Appellant erased details of one visa applicant from booking register and registered Vongai Utete when Appellant knew or ought to have known that Vogai Utete never made a booking. In that regard the disciplinary authority filed to appreciate the following critical issues:

That as a Consular Clerk the Appellant was not responsible for the booking of clients.

The initiator failed to produce the booking register from the security personnel before the Disciplinary Authority to substantiate that indeed Vongai Utete has not made a booking when she applied for a Visa.

That the Application was signed for by Ms Chikarate and is the one who attended Vongai Utete on the counter. She was the one responsible to answer whether or not Vongai had made a booking.

That the initiator mistook the internal register which Appellant used to tipex to make a correction for a booking register from security personnel. The security booking register was the one where an applicant would book.

That the disciplinary authority erred when it stated that Vongai Utete application was received on 9 July 2017 instead of 19 July 2017 instead of 19 July 2016. The error in dates resulted in a wrong finding because it was on the 19th July 2016 that the application was received and signed for by Ms Chikarakate.

The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Disciplinary Authority erred at law and grossly misdirected itself on facts when it made a finding that the Appellant unlawfully and intentionally made copies of Mr Reward Ndiweni visa application and handed it to him without authorisation. The Disciplinary Authority erred on the following:

The Disciplinary authority did not call Reward Ndiweni to testify neither was there anything to confirm the same. As a result, the authority relied on hearsay evidence which was uncorroborated. The hearsay evidence should have been disregarded.

The application for Richard Ndiweni was made at Visa Facilitation Center in Borrowdale and not the Embassy therefore any follow ups was supposed to be done At Visa Faciliation Center.

The allegation that I gave Reward Ndiweni copies o 21 June 2016 is contrary to the factual issues in particular that the application was made on 19 January 2017. In addition, Reward Ndiweni only submitted his application through Visa Facilitation Center which only came into effect in December 2016.

The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Disciplinary Authority erred when it denied the Appellant the right to be legally represented in the Hearing. The Authority out rightly directed that the Appellant could not bring a legal practitioner to represent him during the hearing thereby violating his constitutional right to legal representation of choice and a fair trial. The Disciplinary Authority fundamentally erred in interpreting the code that it used as the relevant clause 7.3e uses the word may which gives a discretion. Clause 2.8 further states that the code is a guideline that may be departed from in appropriate circumstances. The nature of this case required the Appellant to be legally represented.

The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Presiding Officer erred at law in proceeding with a hearing when the Appellant had been on unlawful suspension. The Disciplinary Hearing was a nullity in that the Appellant was suspended for three months yet clause

7.2c of the code relief on stated that it should be conducted within a month of suspension. The suspension of the Appellant was therefore unlawful. This also points to the issue of how the Appellant’s denial legal representation led to an unfair hearing.

The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Presiding Officer erred at law in convicting the Appellant on the allegation of bringing the South African Embassy into disrepute when there was no evidence led to prove the same. It follows that this allegation falls away with the quashing of the allegation 1 and 3 upon which he allegation is premised on.

The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Presiding Officer erred at law in presiding over an unfair and biased hearing regard being heard (sic) to the fact that the Appellant was denied documents that were crucial in his defence by the Initiator for the Respondent namely, manifest from Visa Facilitation Center for 19 January 2017, the booking register from Security for the period including 19 July 2016. Even upon appeal the same documents were denied to the Appellant it was clear that the Presiding Officer was biased as he made various and deliberate misstatements and incorrect findings in his judgement and sanction in paragraph 26, 37 41, 45 and 46. Minutes were also denied the Appellant for purposes of appeal and to date.

The Appeals Authority erred at law when it decided its appeal outcome n the appeal dated December 2017 when the Appellant had filed another appeal in September 2018 after being granted condonation. The 2017 appeal had been denied due to filing out of time and lacked vital information that was placed before the Appeals Authority in condonation and the subsequent appeal of September 2018.

The Appeals Authority erred at law when it upheld the Disciplinary Authority determination when it was clear that the Presiding Authority erred at law in giving a sanction for dismissal given the fact that:

The Appellant had no previous spate with the Employer for the two-year duration of his employment

He is a breadwinner for six people

Disciplinary proceedings should be educative and correctional in the first place and not retributive.”

Appellant then prayed for his reinstatement without loss of salary and benefits.

The Court notes that the grounds of appeal are co-mingled with grounds for review. Grounds

3 (legal representation), 4(suspension), 6 (documents denial) and 7 (documents not considered). They raise matters of procedures. Such grounds should be brought by way of an application for review which is provided for by section 89(1)(d1) of the Act. They cannot be smuggled into an appeal as done in casu. In other words they are not valid grounds of appeal.

The relevant parts of respondent’s opposing affidavit stated that

“5 Ad paragraph 1

5.3 The Appellant admitted that he erased the details of one visa applicant from the register and entered the details of Ms Vongai Utete. He made this admission freely and voluntarily. He has not withdrawn that admission in the resent proceedings. I should be accepted that it still stands. H even justified why he acted in that manner. His justification was that it was an oversight. He even stated that it was a common practice at the workplace to update the register using tippex. It can therefore not be honestly

said that he was not responsible for booking clients and that what he unlawfully did cannot be visited with sanctions.

5.4 His allegation that he mistook the internal register for a security register is not correct. He is merely trying to mislead this court. The charges against him were brought in terms of the register he fraudulently tampered with. That is the register that was admitted as an exhibit. His newly found argument that it was an admission that was made as a result of a mistake could only be true if the register in question had not been submitted as an exhibit. On the premises, the Appellant has not made a case to vacate the admission he made.

Ad paragraph 2

The allegation that Reward Ndiweni was supposed to do follow-ups from the Visa Facilitation Center and not te Embassy is immaterial. It does not challenge the finding of the disciplinary authority to the effect that the Appellant is guilty of dishonesty. A finding that Reward Ndiweni was supposed to do follow ups at the Visa Facilitation Center will not cure the fact that the Appellant unlawfully and intentionally made copies for Reward Ndiweni’s application for visa and handed it to him without authorisation.

The challenge on the date, when Appellant made copies to Reward Ndiweni, is without legal merit. In the notice of appeal, the Appellant does not deny that he made copies for Reward Ndiweni. He only seeks to challenge the dates and that is disingenuous and cannot be a genuine basis for setting aside the decision of the disciplinary authority.

Ad paragraph 5

The allegation that there was no evidence that the conduct of the Appellant brought the Respondent into disrepute is denied,...

12 Ad paragraph 8

The contents of this paragraph are denied. I am advised that a decision concerning sentence imposed can only be set aside in limited circumstances… The Appellant is required to show that there was a serious misdirection in the exercise of discretion by the disciplinary authority and he has failed to do that.”

Respondent prayed that the appeal be dismissed.

ANALYSIS

The case essentially involves incidents concerning two clients of respondent namely Vongai Utete and Reward Ndiweni. Respondent’s disciplinary authority found appellant guilty of fraudulent dealings with the two clients. It penalised appellant with a dismissal from employment. Upon appeal, respondent’s authority upheld the verdict and penalty returned by the disciplinary authority. The appeal effectively says the appeals authority erred in upholding

the verdict and penalty. Therefore this analysis focuses on the judgement of the disciplinary authority.

The Utete judgement opined as follows;

“42 In proving the allegations the employer led evidence of two witnesses, both witnesses said a tippex was used and the name of Vongai Utete was written on, that was in regard to allegation 1 In regard to allegation 3 both witness again said Ndiweni came with a letter having the results of appeal which surprised both witnesses. Ndiweni told them is accused employee who helped him with copies of his file and the advice to bypass VFS as the process might be longer and apply straight to Home Affairs in Pretoria.

4.3 The version of accused employee in regard to allegation 1 is that it was an oversight on his part, but tippex was normally used in the office to update the register and it was never indicated to him that it would be tantamount to misconduct. He denied giving Ndiweni copies of his application

46 Exhibit C showed that accused employee deleted that of another person and put that of Utete V. Again on the admission made by the accused employee, the presiding officer found that the employer had shown the case on the balance of probabilities that there was a commission f misconduct here.

50 The nature of the evidence of Ndiweni is such a way that it connects accused employee with the commission of the offence. According to the witnesses he said accused employee gave him the copies and advised him not to follow the procedure because that would be time delaying. Again the nature of this evidence answers the questions raised by the initiator in the argument. That of Ndiweni did not approach accused employee as he alleged where did he get the contents of his application when the said documents were kept in the office and why would he fabricate about accused employee if they did not know each other and they never had any transaction before.\ 54 In admitting this evidence the presiding officer, therefore found that the employer had established its case on the balance of probabilities and found accused guilty as charged.”

The conclusion is buttressed by the evidence of the witness as noted in the judgement. Sibanyoni testified that Utete told her she did not book when she came for application. Utete further told her it was appellant who assisted her when she came for the application. Sibanyoni found the tippex erasure in the register with Utete’s name on top of it. This sequence of events strongly suggests that appellant helped Utete to jump the queue of applications by bypassing the booking procedure. The conclusion is further strengthened by appellant’s admission at the hearing that tipped the register. Sibanyoni further testified that Ndiweni came to the embassy

with a letter from their Department of Home Affairs ruling on his direct appeal to them. Upon inquiry, Ndiweni stated he had been advised by appellant to bypass the embassy ad appeal directly to Home Affairs. In addition Ndiweni said appellant gave him copies of his (visa) application. Again this evidence tilted the probabilities against appellant. Why else would Ndiweni implicate him rather than any other employee of the embassy. The court is satisfied that the disciplinary committee correctly found appellant guilty on the evidence tendered. First-hand hearsay evidence (as used in this case) is admissible in terms of section 27(1) of the Civil Evidence Act. Chapter 8:01. Further the Labour Court is ‘not bound by strict rules of evidence’ as per section 90 A(i) of the Labour Act. Finally the disciplinary authority applied the correct standard of proof in civil matters which is a preponderance of probabilities. See Zesa v Dera 1998 (1) ZLR 500(S) AT 503. Therefore the appeals authority in casu correctly upheld the verdict returned by the disciplinary authority.

As regards the penalty of dismissal, the Court is guided by the dicta in the case of

Celsy v Ndeleziwa

Per Gwaunza DCJ	2015(2) ZLR 62(S) AT 65F

“The question that then arises on the basis of the law and authorities on this matter, is whether the appellant judiciously exercised its discretion in deciding on, and imposing, the penalty of dismissal. It is only upon a negative answer to this question, that an appeal court would be justified in interfering with such decision.”

The dishonesty entailed by the misconduct, damage to respondent’s image and lack of remorse by appellant made the acts in casu serious offences. Such offences invariably attract serious sanction up to dismissal. Besides his personal circumstances surrounding the commission of the offences which justify imposition of a penalty less than dismissal. Accordingly the Court concludes that there is no basis for interfering with the penalty imposed by the respondent which fell within the ambit of its discretion as an employer.

Wherefore it is ordered that

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI J-U-D-G-E