Emily Zwambila v The State (Immigration Department)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/199/2020
HARARE, 11 JUNE 2019
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/199/2020

HARARE, 11 JUNE 2019           		                CASE NO. LC/H/45/19

AND 11 SEPTEMBER 2020

In the matter between:-

EMILY ZWAMBILA                          			Appellant

The facts of this matter are largely undisputed. The Appellant was employed by the Respondent as an Immigration Officer. She was stationed at the Immigration Headquarters at the time the alleged act of misconduct took place. Between 18 and 21 November, 2017 there was circulated a message on the Whatsapp platform which message was purportedly discussing information pertaining to the department operations and also the performance of some officials who were Appellant’s superiors. An investigation was conducted. Thereafter the Respondent levelled two charges against the Appellant.

Unbecoming behaviour that is likely to bring the Public Service into disrepute

Unauthorised disclosure of confidential information.

Both charges fell in the ambit of acts of misconduct in terms of Section 44(2) as read with paragraph 7 and 12 of the First Schedule to the Public Service Regulations, 2010 as amended. The Respondent alleged that Appellant was between the 24th and 28th of November, 2017 on duty at the Client Service Centre at the Immigration Control Headquarters. Her duties then included, inter-alia, attending to clients’ requests, analysing clients’ files to establish requirement for processing applications, recommending the way forward to Regional Immigration Officer, endorsing outcomes of applications in the client files and finally issuing of permit stickers in respect of individual applications. The Respondent alleged that during the processes the Appellant acting either singly or in collaboration with others in that section, used her cell phone to take pictures of some log entries in clients’ files which had been made either by the Regional Immigration Officer in charge of Clients Service Centre and the Director of Operations. The Appellant was arraigned before the Disciplinary Committee on the 28th of March, 2018 to answer to both charges. The Appellant was represented at the Disciplinary Committee by Mr Mukome who also appeared before this court.

Before the Disciplinary Committee the Appellant denied the allegations levelled against her. She also raised the issue of violation of her individual rights as enshrined in the Constitution. In particular she alleged violation of sections 57 and 61(1) of the Constitution of Zimbabwe. She requested the Disciplinary Committee to, on the basis of section 45(2) of the Public Service Regulations, determine those issues first. The Disciplinary Committee however after seeking legal advice, ruled that the disciplinary hearing could still proceed on the basis of the defence outline as presented by the Appellant. Evidence was led by the Respondent from witnesses that included Appellant’s Supervisor, the Deputy Supervisor, a Ms Chitsungo and a member of the Compliance Section at the Immigration Control Department. The witnesses were subjected to cross-examination by the Appellant’s Legal Counsel.

The evidence from Rio Ngwenya who is Appellant Supervisor was to the effect that the Appellant during the relevant time was part of the group in Client Service Centre. The picture that was circulated on Whatsapp platform had been taken according to her from the ladies toilet. The picture related to information contained in files in the section. Her further evidence was that the group of four ladies involved had received the message but had not brought it to her attention. There was evidence to show that Appellant in particular had actually showed a colleague that same message. It was her further evidence that Appellant and other junior officers had a duty to show her as the Supervisor any mistake or errors rather than to capture it and circulate on the Whatsapp platform. Such conduct was contrary to standard operating procedures. Under cross-examination she indicated there were only four ladies who were handling the files. The files were ordinarily kept in her office. She also submitted that Appellant had been interrogated and admitted to seeing the message that was circulated. As a department there was concern that confidential information was being circulated on the Whatsapp platform. This was unbecoming behaviour on the part of officers responsible for circulating the Whatsapp message. The witness tendered evidence of the messages circulated in photocopies. The Appellant legal counsel however objected to the production of those documents on the basis that they did not form part of the charge-sheet. The objection was sustained by the Chairperson. The witness also submitted that Appellant and three other ladies had in their own handwriting admitted to having received the message on their cell-phones. It was her view however use of cell-phones was not allowed during working hours. The information that was circulated was according to her classified information. Upon further probing the witness submitted that the message contained derogatory information about her and the Director’s poor performance at work. Under vigorous cross-examination she refused to accept that the pictures could have been taken elsewhere and by other people other than the four ladies including Appellant who were in the Client Service Centre.

The next witness was Immigration Officer Chitsungo. She submitted that the Whatsapp message had been circulated in the department. She stated that she had seen the message on Appellant’s phone. She however was unable to say where the messages had come from as there was no name on the message. She stated that she had seen the message in the morning before work commenced. She was alone at the material time when she viewed the message. She did not know if Appellant had circulated the message. On the particular day she was operating at the front desk and Appellant was in the back office. She disputed the assertion by the first witness that it was only seven people who worked at the back office who had access to the files. Her submission was that all of them including front office staff had access to the files.

The next witness was PIO Bunya who was Appellant’s Supervisor. She explained to the Disciplinary Committee the different roles played by the Front Office and the Back Office at the Client Service Centre. The Front Office staff were responsible for receiving applications from clients. They then liaised with registry staff. They also authorised payment by clients in liaison with the Supervisors. After that they would write to the witness in her capacity as PIO. From the witness office files were referred to the Regional Immigration Officer. The Regional Immigration Officer would then refer files to the back office with comments/observation. The back office staff would thereafter forward files to the Director. The back office would also liaise with secretaries. After a formal letter had been written granting or refusing application the Back Office would call client.

It was the witness’ evidence that Appellant had on a piece of paper confirmed receiving the message. She had also personally seen the message on Appellant’s cell-phone. She submitted that all seven officers in the Back Office had access to the files and to the entries made in the files. i.e. four ladies including the Appellant plus three male officers. She however could not pinpoint who amongst the lot could have had an opportunity to take pictures of entries in the files. She however could conclude based on the pictures that they were taken in the ladies toilet. She submitted that the four ladies were singled out on the basis that they had access to the Whatsapp Messenger, they handled files, they also took files from the Regional Immigration Office’s Office to the Director’s Office. At the material time the files were all still in one cabinet as the department had just moved into a new building. It was her further evidence that all four ladies had admitted to having seen the Whatsapp message. In any event further investigations had revealed that the pictures were taken during. Under cross-examination the witness submitted that the problem was not in receiving the message the problem was in circulating the message so received. There were Standard Operating Procedures which they all signed yearly. One of them required them to assemble every morning and brief the Supervisor of anything affecting their work. This included information on client’s files. On this basis it was the witness’ view that the four ladies should have highlighted to the Supervisor that someone was tempering with files. She submitted that she herself had received the information and told the Supervisor on the 9th of November 2017. She refused to comment under cross-examination to the suggestion that Appellant was at the material time confined to Stations desk and therefore she could not have generated the pictures. She however admitted there was a probability the three gentlemen in the office could have also generated the message. She was not aware however that the locking system to the ladies toilets was damaged and that the toilets could be open all day.

The Appellant testified in her own defence but did not call any witnesses. She was denying the charges. She submitted that when the story came out she was talking to a colleague. They were discussing whether it was the same person who had sent the message. When she got to work the following morning people were discussing the same message. That is when they were all called for a meeting with the Director Administrator. They were all asked to write what they knew about the message on pieces of paper which she did. She was thereafter summoned to report to CID Offices the next day. She wrote a statement but was not furnished with a copy. She thereafter returned to work. The next thing she received was the charge-letter. Under examination by the panel the Appellant admitted to writing on a piece of paper that she had heard of the message from Ms Samugwede. She denied that Ms Chitsungo had seen the message on her cell-phone. Her submission was that she had instead shown her part of a conversation she had with another person not the actual message. She however admitted to discussing the message in the conversation. She denied receiving the actual message that was circulated on Whatsapp. She however could not explain why Ms Chitsungo would lie against her. She also could not explain why she was singled out as the generator of the message. After presenting her evidence the Appellant closed her case.

The Disciplinary Committee after considering the submissions and the evidence tendered by the parties made several findings. I find it convenient to reproduce in toto their findings. They are as follows;

“FINDINGS

Ms Emily Melody Zwambila is an Immigration Officer stationed at Immigration Headquaters at the time the offence was committed.

Between 18 and 21 November 2017, a Whatsapp message circulated as per Annex “C”.

Ms Zwambila refused ever receiving the message contrary to Ms Chitsungo who said that Ms Zwambila had shown her the message.

The Committee established that Ms Zwambila did not forward the message to anyone, she just showed the message to Ms Chitsungo.

There is no evidence linking SIO Zwambila as the originator of the Whatsapp message as well as on the transmission of the message.

She is one of the Officers who worked in the back Office at Client Service Centre and were responsible for entries that were made by their superiors in the files recommending the way forward.

Ms Zwambila showed Ms Chitsungo the message but failed to advise her Supervisor which is violation of the Official Secrets Act.

There is no evidence that she the only person who handled the files during their movement from Liquenda building to the new building as well as on their storage thereafter.

She is a first time offender.”

After making these findings the Disciplinary Committee then handed down the order as reflected supra.

The Appeal

The Appellant was aggrieved by the determination and the penalty imposed by the Disciplinary Committee. She noted the present appeal before this court. Her grounds of appeal for so appealing are as follows;

GROUNDS OF APPEAL

The Disciplinary Committee erred at law in finding Appellant guilty of misconduct on facts where circumstances of the case against Appellant do not substantiate the charges levelled against her.

The Disciplinary Committee erred at law in convicting Appellant on facts that contravene her right to privacy and freedom of expression as enshrined in sections 57(b) and 61(1) of the Constitution of Zimbabwe.

The lower tribunal misdirected at law itself both on facts and in relying on communication circulating on social media in finding Appellant guilty of an act of misconduct.

The evidence which was relied upon is inadmissible and should not have been used against Appellant which was an error at law on the part of the Disciplinary Authority.

WHEREFORE, Appellant prays that:

The appeal be allowed with costs

The decision of the Disciplinary Authority be set aside and it be substituted with the following:

“Respondent is not guilty of misconduct as alleged.”

RESPONDENT SUBMISSIONS

The Respondent is opposed to the appeal. Respondent’s argument is Appellant was properly convicted on the charges levelled. Respondent led evidence to show that Appellant had received the derogatory message on her personal phone; It was also Respondent’s contention that the improper behavior related to her failure to advise her supervisor on a matter that was detrimental to the integrity not only of the section but her; Further that Appellant had failed to comply with a specific Section Guide to Officers that any matter of interest was supposed to be brought to the attention of the Supervisor and Appellant was aware of this position; The Appellant’s actions of sharing the information with her colleague and her decision to then unilaterally delete the information from her mobile phone without alerting her supervisors was irresponsible, improper and amounted to unbecoming behavior likely to bring the Public Service into dispute.

In regards the allegation of violation of Appellant’s rights to privacy and freedom of association as enshrined under the Constitution the Respondent wholly refuted the allegation. Section 57 (b) which the Appellant relied on was said to be inappropriate on the basis that the section generally relates to violations that occur when a person’s home, premises and property is searched. The section did not therefore apply in this case as Appellant had not been subjected to such actions. Section 61(1) of the Constitution was also said to cover a broad spectrum of individual freedoms and rights that are protected. The Appellant had, according to Respondent, overlooked to pinpoint a specific subsection under which particular rights and freedoms were said to have been violated through Respondent actions.

In response to the third and fourth ground of appeal the Respondent contends that the Disciplinary Committee did not misdirect itself on the facts and law when it arrived at a conviction on the charge. Sufficient evidence had been led to establish the commission of both acts of misconduct. Further the evidence so relied upon by the Disciplinary Committee was based on admissible evidence. The Respondent’s prayer on this basis was for dismissal of the appeal for lack of merit.

Upon consideration of the submissions made by the parties the court deems it proper to address initially the first and third grounds of appeal. This will allow the court to determine the critical issue as to whether the Appellant was properly convicted on the charges levelled. In the event that the court finds that Appellant was indeed properly convicted the court will then address the constitutional issues as taken in the proceedings a quo. In the event that the court establishes that Appellant was not properly convicted there would be no need to address the constitutional issues raised. The court turns to address the first ground of appeal.

WHETHER THE APPELLANT WAS PROPERLY FOUND GUILTY OF THE CHARGES.

The charges that the Appellant was facing were two –

a breach of Section 44 (2) as read with paragraph 7 i.e. unbecoming behaviour that is likely to bring the Public Service into disrepute.

a breach of Section 44 (2) as read with paragraph 12 i.e. unauthorised disclosure of confidential information.

The Disciplinary Authority found the Appellant guilty on both charges. In regards the first charge they found that Appellant had conducted herself in an unbecoming manner that is likely to bring the Public Service into disrepute when she received the WhatsApp message and deleted it before investigations were carried out. On the second charge the Disciplinary Authority found that Appellant had committed the act of misconduct on the basis that she had shown the WhatsApp message to I.O Chitsungo.

The issue that is before the court is whether the Disciplinary Authority properly found Appellant guilty on the charges based on the factual circumstances in this case. The Appellant in her first ground of appeal alleged that she was improperly found guilty on both charges as Respondent failed to substantiate the charges. In further elaboration of this ground Appellant submitted that the Disciplinary Authority erred and misdirected itself in arriving at a conviction on both charges. Firstly on the basis that no evidence was led to found a conviction on the first charge. Secondly, on the basis that nowhere in the hearing was it established that she had disclosed confidential information under the second charge. Thirdly on the basis that in any event the evidence relied upon in the form of an admission had been coerced from her. She submitted that she had been forced to write statement indicating from whom she had received the WhatsApp message. It was her further submission that she had been compelled to write the statements, as if she had failed she would have been charged with a failure to obey a lawful instruction from the employer. The employer had then proceeded to selectively charge a few of the employees, her included, yet the WhatsApp message had been circulated to a lot of people. The Appellant also dismissed as absurd the submission made by the Respondent at the Disciplinary hearing that the photo circulated could only have been shot in the ladies toilet, thus it could only be the four female employees involved who were therefore charged.

The Respondent counter position was that the Appellant was properly convicted on both charges. The Respondent had led sufficient evidence to sustain both charges. In particular evidence had been led to show that Appellant had indeed received the WhatsApp message that circulated on social media. It was Respondent position that the improper conduct/behaviour related to Appellant’s failure to advise her Supervisor on a matter that was detrimental to the integrity not only of the section but her person. The Appellant had also failed to comply with a specific section guide to officers that any matter of interest was supposed to be brought the attention of the Supervisor and Appellant was aware of this position. The Appellant’s actions of sharing the information with her colleagues and her decision to then unilaterally delete the information from her mobile phone without alerting her Supervisor was irresponsible, improper and amounted to unbecoming behaviour likely to bring the Public Service into disrepute. The Respondent further submitted that the Appellant had also acted in breach of Standard Operating Procedures (Annex D to Respondent papers) which guidelines discourage the use of cell-phones to convey official communication as this would have the effect of exposing confidential information protected by the Official Secrets Act. The Respondent having attached to its Notice of Response documents i.e. Annexure ‘C’ Standard Operational Procedures and Annexure ‘D’ Memorandum Subject: Reminder of Operational and Administrative Guidelines for the Year 2017, the Appellant through her counsel raised an objection to the production. The basis of the objection was that those documents not having been availed in the hearing before the Disciplinary Authority were improperly placed before the court. The court reserved its ruling on the application to produce the additional evidence in the form of the documents.

In the court’s ruling the court entirely agrees with the Appellant that the documents sought to be produced were improperly placed before the court. It is indeed the position of the law that an appeal before the Labour Court is an appeal based on the record. The Respondent was therefore precluded from seeking to introduce new evidence at the stage of an appeal. The Respondent’s counsel after initially contesting did concede this point. The concession was in my view properly taken. On this basis therefore the documents in Annexure B, C and D sought to be included in the record by Respondent are hereby expunged from the record.

It behoves the court to at this stage address the issue of ‘Duress’. The Appellant alleged before this court that she had not freely made the statement of admission that was relied upon by the Disciplinary Committee to found conviction. That statement had been obtained by coercion. All the employees were compelled to write statements indicating from whom they had received the WhatsApp message. In the event of failure to comply they were threatened with a charge of failure to obey a lawful instruction by the employer. They had also been taken to C.I.D offices for what was clearly not a criminal offence. Her submission was as a result she had been forced to write the statement.

In Broodryk vs Smuts TPD 47 at 51-52 the elements necessary to set aside a contract on the grounds of duress were expressed as follows;

“(1) Actual violence or reasonable fear.

The fear must be caused by the threat of some considerable evil to the party or his family.

It must be threat of an imminent or inevitable evil.

The threat or intimidation must be contra bonos mores.

The moral pressures used must have caused damage.”                                 ”

It is clear upon a perusal of the record of proceedings before the Disciplinary Committee that no evidence was led by the Appellant to prove that she acted under duress. In fact the issue was never raised in the hearing before the Disciplinary Committee. The issue is only being raised for the first time before this court. Even if the issue is properly taken before this court it is also clear that the Appellant was not acting under the agony of a moment of compulsion of a threat by Respondent of considerable and imminent unlawful harm to her person or family and economic interest if she did not sign the statement. The submission that she would face disciplinary matter would not ordinarily constitute sufficient cause. An employee during the course of employment may be subjected to disciplinary measures. The submission that she was taken to C.I.D Headquarters in the absence of any further evidence from her, would not on its own constitute duress. This is clear once it is accepted that an employer can institute disciplinary as well as criminal proceedings against an employee. These proceedings are mutually exclusive. They are independent of each other. The instigation of one does not preclude the employer from also following through with the other proceedings. The situation in the present case is similar to the situation that resulted in Malaba DCJ  (as he then was) stating as follows in Daniel Mudende vs Lion Match Limited SC 68/2014;

“What was proved to have happened between the Appellant and the Respondent leading to the signing of the agreement would not be found by a reasonable court to constitute duress. There was no evidence of the Appellant acting under the agony of a moment of compulsion of a threat by the Respondent of considerable and imminent unlawful harm to his person or family or economic interests if he did not sign the contract of employment. “

Turning to the issue as to whether the Appellant was properly found guilty of the charges. The charges that Appellant was facing were two as reflected above. The Disciplinary Authority found her guilty of both charges. In regards the first charge it found that Appellant had conducted herself in an unbecoming manner that is likely to bring the Public Service into disrepute when she received the WhatsApp message and deleted it before investigations were carried out. On the second charge the Disciplinary Authority found that Appellant had committed the act of misconduct on the basis that she had disclosed the confidential information to the witness referred to as I. O. Chitsungo in the record of disciplinary proceedings.

The issue before the court is whether the Disciplinary Authority properly found Appellant guilty based on the factual circumstances as outlined in the record of proceedings. It is trite position at law that an appellate court can only interfere with findings of fact where there has been a gross misdirection on the facts so as to amount to a misdirection of law in the sense that no reasonable tribunal applying its view to the same facts would have arrived at the conclusion reached by the lower Court. See Chioza vs Sitiba SC 4/15.

It is clear from a perusal of the record of proceedings that the first charge was levelled on the basis of allegations that Appellant had either singly or in collaboration with others in her section used her cell-phone to take pictures of some log entries in client files which had been made either by the Regional Immigration Officer in charge of Client Service Centre and the Director of Operations. The Respondent led evidence from several witness. Although in her defence outline Appellant declined receiving the actual message on her phone she admitted to having heard of the message and that she did discuss the message with a colleague. The Respondent however led evidence to prove that the Appellant had actually received the message but had not shown it to her Supervisor. This was the evidence of RIO Ngwenya. The witness also referred to the statement drawn by Appellant in admission that she did receive the message on her cell-phone. The fact of the information contained in the message being confidential classified information was also established through this witness. This was not challenged by the Appellant. The Appellant however raised in cross-examination the fact that the message portrayed the witness as incompetent and an immoral person. This however would not detract from the established fact that the Appellant did receive the message on her personal phone.

Although in the initial investigation there was an allegation that she had originated and transmitted the message the Disciplinary Authority found that no sufficient evidence was led to prove her as the originator and transmitter of the message. That finding was properly made. The Disciplinary Authority however found her guilty of unbecoming conduct/behaviour that is likely to bring the Public Service into disrepute. The basis was that she had received the WhatsApp message and had proceeded to delete it before investigations were carried out. The issue is whether the Disciplinary Committee was entitled on a balance of probabilities to arrive at a conclusion that Appellant did receive the message and she had then proceeded to delete the message. The evidence led by witnesses I.O. Chitsungo showed that she had indeed received the message. That evidence was uncontroverted. The Appellant herself also admitted in her statement to receiving the message from S.I.O Samugwede. That statement as found by this court was made freely and voluntarily by her.

The Appellant was employed at the Client Service Centre. As part of her duties she would come across classified confidential information relating to the Respondent clients. On the basis of the evidence of witness I.O. Chitsungo and her own admission, Appellant received information on her cell-phone which related to classified information from her section. She had an obligation to ensure that information would not be disseminated further. She owed her employer the duty to inform her superiors so that the information would not go viral. She did not challenge the existence of standing orders in the Department. Instead of therefore advising her supervisor she opted to delete it from her cell-phone. It was that conduct which the Respondent found reprehensible and unbecoming in so far as it would result in the further broadcasting of the WhatsApp message which would have the effect of bringing the Department and the Public Service into disrepute. The Appellant was properly found guilty in respect of the charge of unbecoming behaviour likely to bring the Public Service into disrepute.

In regards to the second charge the charge levelled was that of ‘unauthorised disclosure of confidential information’. The Disciplinary Authority found her guilty on the basis that she had shown the WhatsApp message to I.O. Chitsungo. In their findings they noted that she had not forwarded the message to anyone she instead just showed the message to Ms Chitsungo.

In the court’s finding the Appellant was improperly found guilty on the second charge. The charge by its nature required the Respondent to prove that Appellant had disclosed confidential information without authorisation. It is clear from the record of proceedings the Respondent did manage to lead evidence through witnesses such as R.I.O. Ngwenya as to the confidential nature of the information that was circulated. The Appellant herself did not at any stage challenge the aspect of the confidential nature of the information that was being circulated via WhatsApp messenger. The information related after all to amongst other things entries in files pertaining to Respondent’s clients. The record of proceedings indicates that she did receive and discuss with her colleagues the information via WhatsApp. Those colleagues included I.O. Chitsungo the witness referred to by the Disciplinary Authority. According to the record however I.O. Chitsungo was one of her Supervisors. She was therefore part of the Immigration Department. She was therefore an insider. She was not a member of the public. The Appellant could not have been properly found guilty of unauthorised disclosure of confidential information on that basis as I.O. Chitsungo would ordinarily have access to the same information in the course of her duties.

The Disciplinary Authority in finding her guilty on the second charge also related her conduct to a violation of the Official Secrets Act [Cap 11:09]. The Disciplinary Authority clearly erred and misdirected itself in this regard. It is clear from the perusal of the record that no evidence had been led to prove that the information circulated was protected by the Official Secrets Act [Cap 11:09]. Neither was there evidence led to show that Appellant was bound by the Act. That Act in any event is established to prohibit the disclosure of any information prejudicial to the safety or interests of Zimbabwe to an “enemy” defined therein to include a hostile organisation. The Act also makes provision for prevention of transmission of Official State Secrets into the public domain. It also criminalises publication or communication of confidential information entrusted to a person by the Government. It is clear on the basis of provisions of Official Secrets Act [Cap 11:09] that no evidence having been led to prove that the Appellant had transmitted confidential information protected by that Act to the public domain (if at all the information was classified and privileged under the Official Secrets Act which was never established), it would not be proper to convict her on that basis. The Appellant was therefore improperly convicted of the second charge.

WHETHER THE APPELLANT RIGHTS TO PRIVACY AND FREEDOM OF EXPRESSION WERE VIOLATED THROUGH HER CONVICTION.

It was also the Appellants contention that her fundamental rights as protected by section 57 (b) and (d) and section 61(1) of the Constitution were infringed upon by the Respondent when it took her through the disciplinary process where the case was clearly based on information that had been stored in her personal cell-phone. It was her submission that by demanding for her to show what was in her personal cell-phone the employer had violated her right to privacy by finding her guilty of acts of misconduct based on information that was otherwise circulating on social media. The Disciplinary Authority had therefore misdirected itself on both facts and law as she had rights as an individual to receive the information as provided for by the Constitution.

The Respondent in counter submitted that section 57 (b) and (d) relied upon by the Appellant was inapplicable. Section 61 of the Constitution was also said to be inapplicable in the absence of specificity as to which particular provision under Section 61 the Respondent was said to have violated. The Respondent further submitted that in any event, the right to privacy as protected in Section 57 is not absolute it can be limited in circumstances as laid in section 86 of the Constitution.

The first issue to be addressed is jurisdictional. This is in light of the fact that although the same issues were raised before the Disciplinary Committee the Disciplinary Committee opted to proceed to decide the matter without taking into account its constitutional issues. Does this court have the power to determine the constitutional issue as raised once again by the Appellant in these proceedings? The issue of the court’s power is in this event two pronged. Firstly it relates to the power to sit and determine the point. The second relates to the issue of relief, what is the form of relief this court can grant in the circumstances.

In regards to the first issue, it would appear that sections 46 and section 175 (1) of the Constitution grant the court jurisdiction. Section 175 (1) of the Constitution is an omnibus provision. It thus creates scope for every court to exercise jurisdiction in constitutional issues. Section 46 also gives general jurisdiction to all courts to interpret the provisions of Chapter 4 which is the Declaration of Rights. Section 46 reads as follows;

“46 Interpretation of Chapter 4

(1) When interpreting this Chapter, a court, tribunal, forum or body—

(a) must give full effect to the rights and freedoms enshrined in this Chapter;

(b) must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3;

(c) must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) must pay due regard to all the provisions of this Constitution, in particular the principles and objectives set out in Chapter 2; and

(e) may consider relevant foreign law;

in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.

(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”

It is important to underline that at law a court is bound on the basis of section 46 (1)(c) to take into account the position in international law i.e. the interpretation of any similar provisions under the treaties or conventions that Zimbabwe has ratified.

In regards to the relief, it is apparent from the Appellant’s oral and written submission that no particular relief has been set out in respect of the constitutional issues taken before this court. What powers does the Labour Court have when constitutional matters arise during the course of proceedings. According to the author Lovemore Madhuku in Labour Law in Zimbabwe, published by Frederick Ebert Stit fung, Harare, 2015 at p404 the Labour Court in such circumstances has three options. It can, firstly, where a party so requests, in terms of Section 175(4), refer the constitutional issue to the Constitutional Court provided the request is not ‘frivolous and vexatious’ . The second option is for the Labour Court to mero motu and in the exercise of its discretion as granted under Section 175 (4) refer the matter to the Constitutional Court. The third and last option according to Madhuku is for the court to proceed to decide the matter without taking into account the constitutional issue thereby leaving it to the parties, to, if they are so inclined, pursue the constitutional point either on appeal or by a direct approach to the Constitutional Court. Having considered the three options the court has decided to take the third and last option with a variation.

Having addressed the issue of jurisdiction the next issue is whether a constitutional issue was indeed raised before Disciplinary Committee and this court. This is important as on the basis of the authorities the mere citation of constitutional provisions or alleged infringement of constitutional rights does not mean that a constitutional issue has been raised. See Boniface Magurure & 63 Ors V Cargo Carriers International     Hauliers (Pvt) Ltd T/A Sabot CCZ 15/2016 where Malaba CJ whilst referring to another Constitutional challenge in 2016 stated as follows;

“Have the Appellants brought to the Court for determination a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution?  The fact that the Appellants allege that the respondent has by the conduct it is alleged to have committed infringed their fundamental right to fair and safe labour practices enshrined in s 65(1) of the Constitution does not mean that they have raised a constitutional matter.  It is for the Court to decide whether the determination of the legality of the conduct of the respondent if proved would require the interpretation and application of s 65(1) of the Constitution.”

Section 332 of the Constitution defines “constitutional matter” to mean “ a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.”

Has the Appellant in this court raised an issue that would involve the interpretation, protection or enforcement of the provisions of Constitution referred by Appellant. The Appellant in her papers alleged that Respondent by its conduct had infringed her fundamental rights as protected by Section 57 (b) and (d) and section 61 (1) of the Constitution. This was more particularly so considering that Respondent took her through a disciplinary process where the case was clearly based on information that had been stored in her personal cell-phone. It was her submission that by demanding for her to show what was in her personal cell-phone, the employer had violated her right to privacy. Her further submission is the Disciplinary Authority misdirected itself on both facts and law by finding her guilty of acts of misconduct based on information that was otherwise circulating on social media.

The Respondent in counter submitted that section 57 (b) and (d) relied upon by the Appellant was inapplicable. Section 61 of the Constitution was also said to be inapplicable in the absence of specificity as to the particular provision in section 61 Appellant was alleging to have been breached. The Respondent further submitted that in any event the right to privacy protected in Section 57 is not absolute it can be limited in the circumstances as laid out in section 86 of the Constitution.

The Constitution is the Supreme law of Zimbabwe. Consequently any law or conduct that is inconsistent with the Constitution is invalid. The issue in this case is whether the Respondent’s conduct violated the Appellant’s rights to privacy and freedom of association more particularly the right to receive and impart information. The term “social media” referred to is defined to mean ”social interactions between one person and another using technology and other related instruments such as the internet and cell-phones through any combination of words, pictures, videos, email sharing documents or audio sharing.”

“Venezia SJ ‘The Interaction of Social Media and the Law and How to Survive the Social Media Revolution’ 2012 New Hampshire Bar Journal 24 25-39.”

The right to privacy and freedom of expression are constitutionally protected in Zimbabwe through Sections 57 and 61 as referred by the Appellant. Section 57 of the Constitution provides as follows;

57. Right to privacy

“Every person has the right to privacy, which includes the right not to have –

their home, premises or property entered without permission;

their person, home, premises or property searched;

their possessions seized;

the privacy of their communications infringed; or

their health conditions disclosed.

Section 61 of the Constitution on its part also provides as follows;

freedom of expression and freedom of media

Every person has the right to freedom of expression which includes-

freedom to seek, receive, communicate ideas and other information;

freedom or artistic expression and scientific research and creativity; and

academic freedom.”

The right as protected in Section 57 and 61 are however not absolute. They can be limited in circumstances as laid down in section 86 of the Constitution. Section 86 of the Constitution provides as follows;

“86	Limitation of rights and freedoms

The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –

the nature of the right or freedom concerned;

the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

the nature and extent of the limitation;

the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

whether there are any less restrictive means of achieving the purpose of the limitation.”

In order to determine if a constitutional issue arises the court must necessarily conduct a two stage inquiry as to whether the Appellant’s right to privacy and freedom of expression were violated by the Respondent which entity is also her employer. If it is established that there was an infringement the court must thereafter determine whether such infringement by Respondent is justifiable on the basis of the exceptions as outlined in Section 86 referred to supra. The fact that Appellant has alleged that Respondent by its conduct infringed her fundamental rights and freedom is in itself not sufficient for this court to determine that a constitutional issue has arisen. The court must necessarily consider the factual conspectus in this matter in order to determine whether Respondent conduct was legal and whether the conduct infringed the Appellant’s right and freedom as enshrined in Section 57 and 61 (1). If in order to determine this point the court has to interpret and consider the application of these two provisions in the Constitution then a constitutional issue has indeed been raised.

The Appellant in her submissions alleged that her right to privacy protected by section 57 was violated as Respondent levelled charges and found her guilty based on information contained in her cell-phone. The facts however in the record indicate the Respondent initially levelled the first charge on the basis that Respondent believed Appellant had been the originator and transmitter of the WhatsApp message which was containing confidential information that was detrimental to Respondent interests. The Disciplinary Authority after going through the evidence however established that Appellant’s reprehensible conduct was the fact that she received the WhatsApp message and deleted it without having informed her supervisor. It was conduct for which the Respondent as her employer was entitled to discipline her for without the Respondent resorting to actually seizing or obtaining her cell-phone. The facts in any event disclosed that Appellant had in fact admitted to having received the WhatsApp message. The Disciplinary Authority would have asked itself whether the Respondent had properly taken a serious view of the matter and whether there was sufficient evidence to support conviction of the preferred charges. The other pertinent question before the Disciplinary Authority would have been whether Appellant’s conduct constituted unbecoming behaviour that was likely to bring the Public Service into disrepute. The determination of that issue would ordinarily not involve the interpretation and application of Section 57 (b) and (d) or section 61 (1) of the Constitution. The facts in any way do not disclose Respondent violated her privacy either by entering her home, premises or even searching her cell-phone for the WhatsApp message. The facts disclose instead Appellant voluntarily admitting to having received the WhatsApp message. At no point either during her written statement or at the disciplinary hearing did she indicate that she had been asked to produce her cell-phone. Her rights to receive and impart the message also remained intact. In my finding no constitutional issue has been raised by the Appellant as it is not necessary for the court to interpret and consider the application of the two provisions in the Constitution in order to determine whether or not the Appellant was properly convicted by the Disciplinary Committee.

The Appellant has also argued that the Disciplinary Committee erred by relying on inadmissible evidence in the form of Whatsapp message that was circulating on social media to find a conviction. That evidence would be inadmissible as it was illegally obtained. The Appellant has placed reliance on the decision in S vs Fortunate Nsoro HH 190-16 a High Court decision in which Chitapi J stated that evidence in the form of messages retrieved from another’s personal cell-phone, unless obtained with the consent of the owner of the phone would have been illegally obtained on the basis of Section 57 of the Constitution and the rules of evidence.

The facts and circumstances of this case clearly differ from S vs Fortunate Nsoro. In that case which was a criminal case the accused, Fortunate Nsoro was facing a murder charge after she killed her husband following a dispute when the deceased husband refused to divulge communications made to him on his phone. Chitapi J in his judgment found that it is illegal for spouses to pry into each other’s mobile phones as that infringes on the individual’s right to privacy. In this case, however, the Respondent, as the employer did not seek to pry into Appellant’s personal cell-phone. It was established through the evidence of witnesses that the Whatsapp message had indeed been received by Appellant. The Respondent in its capacity as employer was concerned with transmission of the information which information was confidential information pertaining to the departmental operations and the effect of which would bring disrepute to the Public Service.  Whist it was not established that Appellant circulated the message or broadcasted the information on Whatsapp the Respondent as the employer found the Appellant guilty on the basis of her failure to bring the information to the employer’s attention on the basis of Standard Operating Procedures at the workplace. Her conduct would have the effect of allowing the information to be further broadcasted on social media a situation which would bring disrepute to the Respondent her employer. Whilst she had her right to privacy in regards information received in her phone she was being punished for her inaction as an employee to alert her supervisor on information circulating which was detrimental to the integrity of her Department as well as the Public Service.

The Appellant also argues that she was selectively prosecuted in circumstances where the information had been circulated in the department at large. The Appellant further submits that she was victimised as a female, on the basis that the photos seemed to have been shot in the ladies toilet thus the reason why she and the other female employees were charged. The argument clearly cannot stand. It is trite position at law that the employer has a prerogative to select which employee to charge in any particular situation and not the other employees. See for instance Zimbabwe Banking Corporation vs Mbaleka SC 55/15. It is also apparent from the record that no evidence was led by the Appellant to prove that the decision taken to prosecute her was taken solely on the basis of her gender.

The Appellant has also submitted as a separate argument that in any event the evidence of the Whatsapp communication being evidence that was gathered from a social media site was inadmissible evidence. Although this point was taken through her pleadings the point was not elaborated on in oral argument. That point consequently stands as abandoned.

Having found that the Appellant was improperly convicted on the one charge of unauthorized disclosure of confidential information it follows that her conviction on the charge is hereby quashed. Having quashed conviction on that charge it must necessarily follow that the Disciplinary Authority has to reconsider the aspect of penalty.

In the circumstances the court makes the following order;

The appeal partially succeeds in respect of the first ground of appeal with particular reference to Appellant’s conviction on the second charge.

The Appellant’s conviction on the second charge i.e. unauthorised disclosure of confidential information is hereby quashed as a result.

The appeal is dismissed in respect of the rest of the grounds of appeal.

The matter is however remitted to the Disciplinary Authority for a reconsideration of the penalty in the light of the quashing of Appellant’s conviction on the second charge and such hearing should be finalised within sixty days of this order.

There is no order as to costs.

Mukome & Associates, Appellant’s legal practitioners

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