Faith Chaipa & Another v Minister of Justice & Legal Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/249/2014
HARARE, 18 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE   	 JUDGMENT NO. LC/H/249/2014

HARARE, 18 MARCH 2014	    		  	     CASE NO. LC/H/453/13

AND 9TH MAY, 2014

In the matter between:-

FAITH CHAIPA & ANOTHER					Appellants

And

MINISTER OF JUSTICE & LEGAL AFFAIRS			Respondent

Before Honourable E Muchawa, Judge

For Appellants		-	Ms R. Zvimba (Legal Practitioner)

For Respondent		-	Ms C. Saruwaka (Legal Practitioner)

MUCHAWA J:

This is an appeal against the decision of respondent’s Disciplinary Authority which found appellants guilty of fraud and forgery in terms of paragraphs 3,8,13 and 24 of the First Schedule of the Public Service Regulations.  Appellants were discharged from service with effect from the 24th May 2013.

The facts giving rise to the charges are allegations that sometime in December 2012, the two appellants and a Mr. Chinhamhora connived with a Mr. Jonath Machinga, a legal clerk at Machinga and Associates Law Firm to fraudulently transfer property from Mr. Wilson Gwatiringa to Netombo Bethel Family Trust.  It is further alleged that they forged the signature of the Registrar of Deeds, Mrs. E. Mawire.  In addition the receipt number endorsed on the title deed was alleged not to have been issued by the Deeds and Companies Office.  Consequently the State was alleged to have been prejudiced of a total of $8 375.00 which was supposed to be paid as stamp duty for the transaction in question.

During the investigations into this matter, the appellants had allegedly signed a statement admitting to the offence and indicating they were reimbursing part of the money they took and shared.  The amount reimbursed was US$3 470.00.

In this appeal before me the grounds of appeal are set out as follows:

The hearing official erred by completely ignoring the version of the appellants as there is nothing in his determination which shows that he indeed considered what the appellants said in their defence.

The evidence in the record does not support the determination made which is a clear indication that the determination was pre-prepared at the time the hearing took place.

The hearing official misdirected himself when he failed to appreciate the fact that all the witnesses never witnessed the commission of the offence and that no proper investigations were made before the matter was reported to the police.

The witnesses confirmed that they were not handwriting experts and never saw any of the appellants signing the alleged document but, the hearing official misdirected himself when he convicted the appellants on the basis of the witnesses who said that the handwriting on the alleged document was that of the 1st appellant.

The hearing official grossly erred when he did not consider the facts that there was no evidence to prove that the appellant’s actions caused prejudice of US$8 375.00 to the State.

The hearing official misdirected himself when he convicted the appellants yet no evidence was led to prove that the employees connived with each other or other people to fraudulently transfer the property in question.

The punishment imposed on the appellants was grossly harsh and severe that it induces a sense of shock and has no legal basis at all.  Dismissal is always a punishment of last resort yet in casu, it was a punishment of first resort.

The respondent erred when it dismissed the appellants without justifying the punishment with the circumstances of the matter.

Respondent avers that appellants were properly convicted on the basis of the evidence led and that dismissal was the appropriate penalty.

In my opinion, grounds 1 to 6 deal with the propriety of the conviction whilst grounds 7 and 8 address the propriety of the sentence meted out.  I will deal with these two issues in this judgment.

Propriety of the Conviction

Appellants submitted that the evidence given by all the witnesses had material shortfalls and that no one actually witnessed the commission of the offence.  I was urged to dismiss the evidence as the opinion evidence in respect to the handwriting was not given by an expert.  Further the evidence was dismissed as hearsay evidence.

It was submitted too that first appellant was discriminated against as the handwriting was attributed to her because she is female.

A further allegation advanced in submissions was that appellants had not been given an opportunity to be heard and that the audi alteram partem rule had not been observed.

It was also argued that no evidence was led to prove connivance.

Respondent rightly argued that appellants had been given an opportunity to be heard and even had legal representation.  I find no merit in this assertion by appellants.

It was argued by respondent that the crux of the matter centered on appellant’s admission to having committed the offence.  I agree with respondent that the totality of the evidence weighed against appellants.  Appellants agreed to authoring and signing a statement in which they admitted to having reimbursed.  Mr. E. Ndlovu the amount of US$3 470.00 being part payment for the share they had received from the misconduct.  The allegation of duress as explained by appellants is not enough to explain why they would want to purge a wrong they never committed.  They admitted in the hearings and investigations that they could not prove the duress.  The party alleging duress has the onus to prove it.  (See Garikai v Zimbabwe Mining and Smelting Co. (Pvt) Ltd SC-56-96).  Both appellants admitted to having worked on the file in question.

Both parties correctly pointed that the burden of proof in a civil matter is on a balance of probabilities (ZESA v Dera 1998 (1) ZLR 500 (SC)) and not beyond reasonable doubt.

I believe that respondent discharged this burden of proof in the circumstances even without calling in a handwriting expert or Mr. Ndlovu as witnesses.

I therefore find that appellants were correctly found guilty of fraud and forgery.

Propriety of Sentence

Appellants submitted that the sentence of dismissal was grossly harsh and severe so as to induce a sense of shock and that there is no legal basis for this sentence.  It was argued that dismissal should always be a punishment of last resort.

Respondent relied on the case of Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR at 210 to argue that appellants failed to act in good faith and their misconduct makes the continuation of the employment relationship intolerable or unworkable.  Further it is said to undermine the trust and confidence in the employer and employee relationship.

The imposition of a penalty is at the discretion of the disciplinary authority.  I agree with the sentiments in Circle Cement (Pvt) Ltd v Chipo Nyawasha S60-03 at p 5.

“once the employer had taken a serious view of the act of misconduct committed by the employees to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration will not arise.”

In the circumstances I find that the sentence meted out was appropriate.

Consequently I find no merit in this appeal and order as follows.

“The appeal be and is hereby dismissed with costs.”

Mugiya & Macharaga, Appellants legal practitioners

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