Gift Chimbunde v Minister of Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/733/16
HELD AT HARARE 30 SEPTEMBER 2016
CASE NO
JUDGMENT NO LC/H/733/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/733/16

HELD AT HARARE 30 SEPTEMBER 2016		CASE NO LC/H/112/15

& 18 NOVEMBER 2016

In the matter between:

GIFT CHIMBUNDE				Appellant

And

MINISTER OF EDUCATION			Respondent

Before The Honourable Kudya, J

For Appellant		B Chikowero (Legal Practitioner)

For Respondent		K Warinda (Civil Division)

KUDYA J:

This is an appeal against the decision of the respondent disciplinary authority where it found appellant employee guilty of improperly associating with school pupils where he allegedly proposed love to one Rudo Gwatidzo who was a new comer at the school he was teaching.  Facts of the matter are that appellant was brought before a disciplinary committee after allegations of improperly associating with 3 school girls had been levelled against him.  Following the hearing he was found not guilty in respect of the other 2 girls who did not come to testify against him.  He was however found guilty in respect of Rudo.  Rudo claimed that on her first day at the school she had met appellant who had uttered words suggesting that he wanted to be in a love relationship with her.  She stated that on another day he out rightly told her that he loved her which proposal she says she turned down.

She was said to have reported to her grandma who threatened to come to her school if the advances in question continued.  Appellant was alleged to have however visited Rudo’s homestead where in the presence of her grandmother and 2 grandfathers he apologised for proposing love to Rudo.  The disciplinary committee was satisfied that appellant had acted as alleged.  It therefore recommended to the disciplinary authority that he be found guilty in respect of Rudo and not guilty in respect of the other 2 girls.

It further recommended that he be dismissed from employment on account of the misconduct allegation in relation to Rudo.  He was consequently found guilty by the disciplinary authority and dismissed from employment.  The dismissal decision irked him and prompted him to appeal to the Labour Court which appeal is the subject of this judgment.

The appeal grounds which he relies on in the appeal are as follows:

Disciplinary authority erred grossly in finding that Rudo was a credible witnesses.

The disciplinary authority erred grossly in failing to appreciate that appellant never apologised to Rudo’s family, a fact which was confirmed by her uncle and a fact which contradicted Rudo’s evidence on that aspect.

The disciplinary authority erred grossly in failing to appreciate that Rudo and her uncle confirmed that the initial letters were torn by the school authorities retaining the subsequent ones which were incriminating and that and that attested to bad blood between the appellant and the headmaster.

It also demonstrated that Rudo was influenced to make allegations of improper association against appellant hence the allegations were not free and voluntary.

In the result the appellant prayed that his conviction be quashed and that the dismissal/discharge penalty be set aside and that he be reinstated without loss of salary and benefits.

In response to the appeal the respondent maintained that:

Rudo the key witness was credible and consistent in her testimony as she was able to describe what appellant wore on the day of the advances to her and maintained her testimony throughout.  It is primarily that evidence which the disciplinary committee relied on.  The appellant did not deviate from her statement which she made to the former head of school in 2012.  Appellant failed to distance self from Rudo’s testimony.

Rudo’s grandma did not have a statement recorded from her so she was not called to testify.  Besides the improper association occurred at school and hinged on the verbal and written testimony by the key witness.  If appellant wanted to call Rudo’s grandmother he was at liberty to do so.

Appellant was not charged for apologising to Rudo’s family.  To that end inconstancies on that aspect in the evidence of Rudo’s uncle could not detract from Rudo’s testimony of what happened when the infraction was committed.  The uncle’s attack on the school and the Ministry was consistent with evidence from one who could have connived with the appellant.

Rudo stated that she voluntarily submitted her report and that she did not know how to compile a report.  Her written testimony corroborated her verbal one and appellant failed to distance self from the allegations.  The bad blood argument was without foundation since all that the head was doing by investigating the matter was to simply carry out his duty as demanded of him by his position hence he was only discharging his normal duties.

Improper association with a pupil is a serious infraction calling for a dismissal penalty since the teacher is expected to act in loco parentis to the student which appellant failed to do in the instant case.

The law is clear that appeals where the discretion of the lower tribunal is

questioned do not call for the substitution of such discretion by the appellate body unless it can be demonstrated that exercise of such discretion was done in a grossly unreasonable fashion.  See Nyahondo v Hokonya & Others 1997 (2) ZLR 475 (SC).

Each of the appeal grounds is addressed below:

Ground 1

A reading of the record of proceeding of the disciplinary committee shows that what was essentially before it was Rudo’s word against that of the appellant.  To gauge Rudo’s credibility the committee observed that she remained consistent in what she said had happened to her.  Her written statement and her oral testimony jelled in.  She also explained clearly that the torn up reports were occasioned by her failure to appreciate the format which a report should take.  She remained adamant that she was not coerced at all to state such allegations against the appellant.  It is critical to note that a part from the student-teacher relationship which existed between her and appellant no other relationship existed between them.  It would thus be far-fetched to envisage how she could ever have been used by the school authorities to cause appellant’s downfall.  The reasoning by the committee and the disciplinary authority on her credibility is flawless.  To that extent the appellate court does not have a cogent basis to interfere with the authority’s decision.  This ground lacking in merit should fail.

Ground 2

As stated in ground one above the matter was effectively a single witness case taking into account that the crux of what happened at the school and not at Rudo’s grandmother to give evidence was therefore not fatal to the case.  In fact the appellant’s argument seems to be that without corroboration from her grandma on the report to her, Rudo’s testimony should not have stood the day.  The law is clear that single witness testimony can lead to a conviction (See S v Mupfumbi HC-11-64-14 corroboration is not mandatory but merely desirable to add to evidence on an issue complained about.  The court is satisfied that there is no cogent basis for disbelieving Rudo on account of her grandmother’s failure to testify.  This ground is also not merited and should fail.

Ground 3

The fact whether appellant apologised or did not to Rudo’s family was neither here nor there.  This is so because as reasoned above the case stood or fell on Rudo’s evidence.  In fact the divergent versions on the apology emanating from Rudo’s uncles evidence can be construed to be testimony that she did not sit down to create the allegations founding this case.  The court is therefore not persuaded that there was anything irregular about the manner in which the authority ruled on this aspect.  This ground should thus fail.

Ground 4

The record is replete with evidence that allegations of bias and malice levelled by appellant against the head were without foundation.  Even if the head was indeed abusing school funds the question is how would Rudo be sucked into that if at all the complaint in question never arose.  The tearing of the initial documents is explained out by Rudo where she says she was not well versed with writing reports hence the result of the reports having to be redone.  The explanation is with foundation and court cannot fault the findings made in this respect.  It is clear that the ground is without merit and it should fail.

The record shows that respondent addressed the propriety of the penalty but the grounds of appeal are silent on that so the court deemed it unnecessary to delve into that.   Besides penalty is at the discretion of the employer.

In the ultimate the appeal lacks merit in its entirety and should accordingly fail.

IT IS ORDERED THAT

The appeal lacking in merit in its entirety it be and is hereby dismissed with costs.

Gutu & Chikowero, appellant’s legal practitioners

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