Elijah Chitsika v Ministry of Education Arts Sports & Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MS/17/16
HELD AT MASVINGO 18 MARCH 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MS/17/16

HELD AT MASVINGO 18 MARCH 2016			CASE NO LC/MS/68/12

& 13 MAY 2016

In the matter between:

ELIJAH CHITSIKA							Appellant

And

MINISTRY OF EDUCATION ARTS SPORTS & CULTURE		Respondent

Before The Honourable L Hove, Judge

For Appellant			Mr J Maweni (Legal Practitioner)

For Respondent		Mr H Magadure (Civil Division)

HOVE, J:

A school girl in form 3 at a school headed by the appellant reported with the assistance of the school head and his wife that she had a love relationship with one of the teachers.

The police initiated investigations against the teacher a Mr Chigome.  During investigations, the girl disclosed as follows;

In November 2011 she was called by the school clerk namely Madanhire who said that the school head wanted to talk to her.  She complied and went to see the head who was alone in his office.  The head then said that he was quiet but he knew the girl’s stories.

The girl then said she had been punished by a teacher called Chinofamba and that she had been ordered to ferry some water to the builders who were constructing a toilet.  The school head then told the girl that she should be in love with him.  The girl quickly left the office and went to attend her classes.  She was then reprimanded by her class teacher who said she should not attend to other issue during class time.

On the following day the clerk came to the girl’s class and told the teacher that the head wanted to see her.  The teacher refused to release her and said it was class time.  The clerk went away but came back and said the school head had insisted that the girl be released.  The class teacher complied and released the girl.

In the office, the school head then said to the girl you left my office yesterday without responding to my proposal.  He then threatened her.  After the threats detailed in the girl’s statement, the school head took his jacket spread it on the floor, grabbed the girl and laid her on the jacket and sexually assaulted her.  The girl says she did not scream as she feared the threats from the school head.  Thereafter the girl says the clerk came to the class and called her to the school head’s office where the school head sexually assaulted her.  The girl said “he was having sexual intercourse with me once per day i.e. after breakfast or after lunch.  Such acts took place for two weeks i.e. 10 days while I was at school in the head’s office.  Each time after the act she would be told to go back to class which she did.

The girl says on the last day of the 10 days, it was on a Friday the school head had sexual intercourse with her while both of them were seated in a chair in the head’s office.  That is when Mr Chigome passed the head’s window and knocked on the door.  The girl thought that he had seen that they were having sexual intercourse but the teacher did not. He said he saw that the two were seated and the girl looked sad.

He knocked and the school head enquired who it was and what he wanted.  He wanted a stapler and he was told to collect one from the clerk and he went away.

On the following Monday, the school head summoned the girl to his office.  This time he was not alone but was in the company of his wife.  She was given some forms which she was asked to fill stating that she was in love wife Mr Chigome, the one who had knocked as the two were having sex in a chair.  The girl says she was forced to fill in the forms which she did.  She was promised $600 if Mr Chigome was successfully nailed and was dismissed from the school or even arrested.  The school head’s wife was present during this exchange.

The girl concluded her statement by saying that;

“Mr Chitsika (the school head) had sexual intercourse with me without my consent on several dates.  I never had sexual intercourse with Mr Chigome as alleged by the accused person.  He had sexual intercourse with me without some condoms on all occasions.”

The school head was charged for having improperly associated with the girl and found him guilty.  He was dismissed.

He was not satisfied and noted a review/appeal to this court.

The grounds of appeal alleged that the disciplinary committee grossly erred on the facts by accepting the girl’s evidence and also Chigome’s evidence.  The committee is also said to have erred by finding that Mrs Chitsika was a poor witness and also that the medical report did not support that there had been sexual intercourse.

The grounds for review where that the audi alteram partem rule had not been observed and that Chigome should not have been called as a witness.

Both the appeal and the review are hopeless.  I have gone through the record of proceedings carefully and it is evident that the appellant was accorded the right to a fair hearing.

Charges were put to the appellant and he denied them.  He did not complain at that stage that any of his rights had been violated.  Witnesses were called and he was allowed to cross examine and he cross examined them all.  The proceedings pass the mark of fairness.  In any event it is not all procedural irregularities which vitiate proceedings.  In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.

See in this regard Jockey Club of SA & Others v Feldman 1942 AD 340.

In casu no prejudice was alleged to have been suffered. I am not even convinced that any of the review grounds have been established.

Vis a vis the merits.  All the grounds of appeal have no merit.  The grounds seek to challenge the factual conclusions made by the disciplinary committee however an appeal court cannot interfere with the decision of a trial court based on purely findings of facts unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained  of are outrageous in their defiance of logic.  See in this regard the case of Nyahondo v Hokonya & Others 1997 (2) ZLR 475.

The standard of proof in labour matters is on a balance of probabilities and not proof beyond a reasonable doubt.  It is trite that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probabilities.  Even if in so doing it does not exclude every reasonable doubt.  Had this been a criminal trial all the normal rules of evidence would be applicable and every fact material to establish the guilt of the accused must have been established by proof beyond reasonable doubt unless it was admitted.  Inferences from facts must in order to be permissible, be such as to leave no reasonable doubt of their correctness.

In casu, like in all civil cases, the court may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst  several conceivable ones even though that conclusion be not the only reasonable one.

See in this regard the case of

Ebrahim v Pittman N O 1995 (10 ZLR (H)

Govan v Skidmore 1952 (1) SA 732

Zesa v Dera SC 79/98

In casu the girl’s evidence was clear and consistent.  It had a ring of truth to it she did not waiver or contradict herself in anyway.  Further her evidence was corroborated by the evidence of the witnesses called during the disciplinary proceedings.

There is nothing irrational about the disciplinary committees decision.  Infact no allegations of irrationality have been made.  The grounds of appeal merely seek to have the appeal court substitute its own findings of fact with those of the disciplinary committee.  There is however no basis for this court to interfere as the conclusions of facts reached were the most probable.

I find therefore that there is no merit whatsoever in both the appeal and the review and I make the following order;

The appeal and the review are dismissed with costs.

Mutendi & Shumba, appellant’s legal practitioners

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