Gloria Nhidza v Public Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/492/16
HELD AT HARARE ON 16TH MAY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/492/16

HELD AT HARARE ON 16TH MAY, 2016 	    CASE NO. LC/H/689/15

AND 19TH AUGUST, 2016

In the matter between:-

GLORIA NHIDZA							Appellant

And

PUBLIC SERVICE COMMISSION				1st Respondent

And

MINISTRY OF HOME AFFAIRS				2nd Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr O Shava (Legal Practitioner)

Respondents	:	Mr L Mutambisi

(Civil Division of the Attorney General’s Office)

MHURI J.

This is an appeal against the Disciplinary Authority’s approval of a guilty verdict and penalty as recommended by the Disciplinary Committee.

Appellant was charged under the Public Service Regulations Statutory Instrument 1 of 2000 as amended for:

Firstly,

Improper and incompetent performance of duties.

Secondly,

Failure to obey lawful instructions including circulars issued by the Accounting Officer.

The factual background is that:

Appellant was in Respondent’s employ as a Principal Immigration Officer.  She was based at the Harare International Airport.

On the 21st February, 2015 Appellant was on duty on the arrivals side, clearing passengers who had alighted from Fastjet Airlines coming from Tanzania as well as passengers from Johannesburg who had alighted from Air Zimbabwe flight.

During the clearing process Appellant cleared a passenger who was travelling on a Mozambican passport, bearing the name Valentine Takang.

The said passport could not be scanned on Appellant’s machine as a result Appellant had to manually enter the passenger’s details into the computer and then allowed him entry.

Later, a Nigerian national by the name Fashade Fiyinfoliwa Adetona approached the Immigration Headquarters Client Services Centre with the intention of extending his Visitor’s Extension Certificate (VEC)

Mr. Adetona was in possession of the Mozambican passport which Appellant had stamped on the 21st February, 2015 when clearing the passenger.

It was at the Immigration Headquarters that anomalies were noted on the passport by the Compliance Officials.  The passport’s seals on the photo were broken and there was a substitution of the photo.

The Nigerian national Adetona was then arrested.

Appellant was then charged, it being alleged that:

She did not scan the Mozambican passport thereby violating the standard Operating Procedures.

She did not make an entry into the computer register indicating that her system was malfunctioning.

There was no evidence of the document examination by Appellant as required in terms of Section 12(4) of the Immigration Act, since the passport had broken seals on the photo substitution.

Aggrieved by the Disciplinary Authority’s finding of guilty, Appellant lodged this appeal mainly on two grounds of appeal, which are that:

“The Disciplinary Authority erred at law in finding the Appellant guilty as charged when the burden of proof required to secure a conviction had not been discharged by the employer.

The Disciplinary Authority grossly misdirected itself on the facts, the misdirection of which amounted to an error at law when it made a finding that Appellant failed to properly examine a forged passport when in fact no evidence was led that the passport was tampered with before it was stamped.  It was not disputed that the passport could have been tampered with after having been duly stamped.”

It is an established position of the law that the burden of proof in civil matters such as the matter in casu, is on a balance of probabilities and is lower than the burden required in a criminal matter.  In criminal matters, the burden is higher and is proof beyond any reasonable doubt.

MILLER vs MINISTER OF PENSIONS 1947 2 ALL ER 372

See also the case of

MBHELE AND ANOTHER vs STRANGE CLEANING SERVICES

CC 2001 32 ILJ 246

cited by Respondent in which the point was made that when dealing with the issue of probabilities one has to look first at the employer’s version and decide whether it is probable.  Then one looks at the employee’s version and also decides whether it is probable.  Thereafter one has to decide which one of the two versions is more probable by comparing the opposing versions.

In casu, Appellant argues that the 2nd Respondent failed to prove its allegations on a balance of probabilities, as Appellant’s arguments before the Disciplinary Committee that the passport was tampered with well after it had been stamped by Appellant, that she was never presented with a forged document, that Valentine Takang produced an original passport different from the one produced as an exhibit were never disputed.

The Disciplinary Committee and consequently the Disciplinary Authority was faced with the two competing versions of the employer and the employee.  Faced with the two versions, the Disciplinary Committee found the employer’s version more probable than that of the Appellant.

I am not persuaded by Appellant’s argument that the 2nd Respondent failed to prove its case on a balance of probabilities.

As alluded to earlier, the burden of proof in matters such as this one is lower than the one required in criminal matters.  In casu, it is common cause that Appellant cleared the passenger.  The passport could not be scanned on her computer so she had to enter the passenger’s details into the computer manually.  These details were supposed to reflect on the computer printout which was produced as an exhibit.  Neither the name of the Nigerian national Fiyinfoliwa Adetona nor the Mozambican national Valentine Takang was reflecting on the print out.

Further, it is common cause that Appellant did not make an entry of the malfunctioning of her computer in the computer maintenance record book.  This was contrary to the requirement as stipulated in the Yearly Reminder of Operational and Administrative Guidelines, which Appellant was aware of.

It is also common cause, that the Nigerian national F. Adetona was arrested in possession of the passport stamped by Appellant when he wanted to extend his stay in Zimbabwe.  The passport was tampered with.

Taking all the above facts which are common cause, it is more probable than not, that Appellant cleared the Nigerian national and it is more probable than not that at the time, the passport was in the condition that it was found in at the time of his arrest.

I find that the Disciplinary Committee as well as the Disciplinary Authority were correct in finding Appellant guilty on a preponderance of probabilities.  The Appellant’s version that she dealt with an original passport which had not been tampered with, but could have been tampered with afterwards cannot reasonably be true.  This version was found to be less probable than the 2nd Respondent’s version, correctly so in my view.

In the result, I find that the appeal cannot be allowed.

To that end, it is ordered that the appeal be and is hereby dismissed.

MBIDZO MUCHADEHAMA & MAKONI – Appellant’s legal practitioners

CIVIL DIVISION OF ATTORNEY GENERAL’S OFFICE – Respondent’s legal practitioners