Flossie Machaya v Ministry of Primary & Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/134/16
HELD AT HARARE 7TH JULY 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/134/16

HELD AT HARARE 7TH JULY 2015				CASE NO LC/H/63/15

& 4 MARCH 2016

In the matter between:

FLOSSIE MACHAYA							Appellant

And

MINISTRY OF PRIMARY & SECONDARY EDUCATION		Respondent

Before The Honourable E Makamure, Judge

For Appellant			Mr Mhlongwa (Legal Practitioner)

With E M Mataka

For Respondent		Mr H Magadure (Civil Division)

MAKAMURE, J:

The appellant is employed by the respondent as a primary school senior teacher.  She was charged for admitting two grade two pupils into her grade one class without the authority of the school head. This was a violation of paragraph 3 and 24 of the First schedule of S.I. 1/2000 as amended “Paragraph 3 of the First Schedule (Section 2) of Statutory Instrument 1 of 2000 (S.1. 1/2000) provides:

3.	“Failure to perform any work or duty properly assigned, or failure to obey lawful instructions including circulars, instructions or orders issued by the Commission, the Treasury or the Accounting Officer

and paragraph 24 provides:

24	“Any Act or omission which is inconsistent with or prejudicial to the discharge of official duties, including the abuse of authority.”

She was punished with a fine and a transfer to a different school.  She appeals to this court on the basis that she had authority to admit the said pupils and that the penalty was excessive.

The facts are common cause.  The two children in question were grade two pupils but the appellant admitted them into her grade one class.  They had proof of payment of school fees from the bank but they did not have enrolment forms from the school head.  The appellant did not check with the school head why the children had come with proof of payment of school fees and yet they did not have requisite enrolment forms from the school head.  The record shows that in fact the parents of these children had been earlier advised by the school head to return to the school after a few days to check for the vacancies.  Instead they circumvented the advice of the school head and paid school fees before the school head had authorised it.  The record shows that it is the school head who enrols and accompanies enrolled pupils to their respective classes and hands them over to the class teacher.  The appellant did not bother to check with the school head and yet the appellant’s class (room) was in the same block with the head’s office.  There was no reason for her to admit them without checking first. There was every reason for her to check that the appropriate procedure was followed.  The appellant’s failure to ensure that the two pupils were properly enrolled in the school was an unauthorised departure from the norm.   Her employer found that in so doing the appellant had committed an act of misconduct.  This cannot be faulted.

The evidence against the appellant is overwhelming.   She clearly enrolled the two pupils without the authority of the school head.  She cannot say that there is no evidence against her when in fact the facts are common cause.  There is no way that this court can make a different finding from the lower tribunal when the record is so clear.  The appeal by the appellant amounts to an abuse of the courts. This must be condemned in the strongest possible terms.

The appellant was aggrieved by the penalty which was imposed on her.  The question of penalty is the province of the employer to exercise their discretion.  As such, an appeal court can only interfere if the discretion has been improperly exercised.  I agree with the submission made on behalf of respondent where reference was made to S v Nhumwa

SC 40-88 as follows

“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have imposed a sentence somewhat different from that imposed.  If the sentence complies with the relevant principle, even if it is (more) severe than the one the court (would) have imposed sitting as a court of first instance, this court will not interfere with the discretion of the sentencing court.”

In Barros & Anor v Chimponda 1999 (1) ZLR 58 at 62 F – H the Supreme Court stated that

“It is not enough that the appellate court considers that if it had been in the position

of the primary court, it would have taken a different course.  It must appear that some error has been made in the exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect if, if it mistakes the facts, if it does not take into account relevant some consideration, then its determination should be viewed and the appellate court may in substitution, exercise its own discretion in-substitution, provided always has the materials for so doing.  In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

I respectfully associate myself with what the Supreme Court said in the Chimpondah case (supra).

It is in view of the foregoing that I find that there is no merit in the grounds of appeal.

In the result the appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Chambati & Mataka, appellant’s legal practitioners

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