Herbert Admire Makani v The Civil Service Commission (Formerly, Public Service Commission)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NOLC/H/213/25
HELD AT HARARE 15TH MAY, 2024
CASE NO
LC/H/464/21 AND 10TH JUNE, 2025
IN THE MATTER BETWEEN:
HERBERT ADMIRE MAKANI
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE

Held at Harare 15th May, 2024

LC/H/464/21 AND 10th June, 2025

In the matter between:

Herbert Admire Makani

And

The Civil Service Commission

(Formerly, Public Service Commission)

Before the Honourable Chivizhe J

For Appellant: Mr. A. T. Mandzividza (Legal Practitioner)

For Respondent: Mr. L.T. Muradzikwa (Legal Practitioner)

Appellant: Mr. A. T. Mandzividza (Legal Practitioner)

Respondent: Mr. L.T. Muradzikwa (Legal Practitioner)

Chivizhe, J:

This is an appeal filed in terms of section 51(1) of the Public Service Regulations, 2000 as read with Rule 19 of the Labour Court Rules, 2017 as against the determination by the Respondent’s Disciplinary Authority dated 27 August 2021, which determination was served on the Appellant on 2 September 2021.

Factual Background

The appellant is Hebert Admire Makani, a former employee in the Department of Immigration which falls under the Ministry of Home Affairs. This appeal arises from disciplinary proceedings instituted against the appellant wherein he was charged with acts of misconduct in terms of Section 44(2) of the Public Service Regulations, 2000, as read with paragraphs 4 and 7 of the First Schedule to the same Regulations.

The charges brought against the appellant were twofold. The first charge alleged that Mr. Makani had engaged in improper, threatening, and insubordinate conduct or behaviour. It was further alleged that this conduct included acts of sexual harassment committed in the course of his official duties, either towards a fellow public servant or a member of the general public. The second charge accused the appellant of behaving in a manner that was considered unbecoming of a public officer and likely to bring the Public Service, or any part thereof, into disrepute.

The factual basis of these charges was that Mr Makani had allegedly sexually harassed Ms. Fortune Nyamuremba through a series of phone calls made over an extended period, from the year 2011 to 2014. Mr. Makani denied the allegations levelled against him, and as a result, the matter proceeded to a disciplinary hearing.

During the disciplinary proceedings, both parties were afforded the opportunity to present evidence and make submissions. After considering the material presented, the Disciplinary Authority found Mr. Makani guilty of misconduct on both charges. Consequently, a decision was made to dismiss him from the Public Service.

Dissatisfied with both the conviction and the resulting dismissal, Mr. Makani filed an appeal challenging the decision of the Disciplinary Authority. The notice of appeal was duly served on the respondent on 4 October 2021.

**Grounds of appeal and relief sought**

Aggrieved, the appellant noted an appeal against the decision of the Disciplinary Authority on the following grounds:

1. The Disciplinary Authority erred in holding that the Appellant was guilty of misconduct without specifying which exact conduct of a contravention of paragraph 4, and which conduct constituted a breach of paragraph 7 of the First Schedule to the Public Service Regulations, 2000.

2. The Disciplinary Authority erred in holding that the Appellant was guilty of contravening paragraph 4 of the First Schedule to the Public Service Regulations in circumstances where no conduct constituting “improper, threatening or discourteous behaviour was established by way of acceptable evidence against him.

3. There having been no evidence at all in support of the charge of unbecoming or discourteous behaviour against him, The Disciplinary Authority and in convicting the Appellant
 4. The Disciplinary Committee erred in holding that the complainant (Mrs Nyamuremba) had managed to prove that she had been harassed by way of text messages between 2011 and 2013, in circumstances where she was unable to establish the material aspects of the charge, particularly, the content of the “harassing” messages and the phone number which had allegedly been used to “harass” her.

5. The Disciplinary Authority erred in holding that the alleged failure by the Appellant to meet Mrs Nyamuremba during one of his visits to Bulawayo constituted sexual harassment or discourteous conduct on his part.

6. The Disciplinary Authority erred in convicting the Appellant on the basis that he had failed to prove his innocence, when as a matter of law, the onus was on the Respondent to establish the appellant’s guilty, and the Appellant did not carry the burden of proof.

7. The Disciplinary Authority erred in holding that the Appellant’s participation in Mrs Nyamurembas exit interview in the invitation of the Department of Immigration’s Human Resources Office constituted conduct to be taken into account in assessing whether the Appellant was guilty of contravening paragraphs 4, and 7 of the Public Service Regulations,2000

8. Mrs Nyamuremba having resigned prior to the exit interview, the Disciplinary Authority erred in holding that she had remained an employee of the Respondent, and was therefore entitled to be taken to hospital or home by the Department of immigration, and that the Appellant had committed misconduct by not organising transport for her in the circumstances.

The appellant is therefore seeking the following relief, that a. The appeal be allowed with costs b. The decision by the Respondent’s Disciplinary Authority to finding the appellant guilty, and the concomitant sanction of dismissal be set aside, and substituted with the following:


“The Employee is found not guilty of contravening paragraphs 4 and 7 of the Public Service Regulations, 2000 c. The Respondent is ordered to reinstate the Appellant with no loss of salary, and benefits.

d. If reinstatement is no longer possible, the Respondent is ordered to pay the Appellant damages in lieu of reinstatement the quantum of which is to be agreed by the parties within thirty days from the date of his judgment.

e. If the parties are unable to agree on the quantum of the damages in lieu of reinstatement, either party may approach this court for quantification of the damages

APPELLANT’S SUBMISSIONS

The appellant contended that the respondent failed to discharge the burden of establishing, both in fact and in law, that the appellant had committed any of the acts forming the basis of the charges against him. It was further submitted that the findings of the Disciplinary Authority, which concluded that the appellant was guilty, disregarded material evidence presented before it. This, the appellant argued, amounted to a fundamental failure to properly consider and determine the issues placed before the Disciplinary Authority.

The appellant further submitted that the respondent, in contravention of established legal principles, improperly shifted the burden of proof onto him. It was contended that the appellant’s conviction was, at least in part, predicated upon the respondent’s perception that the appellant had failed to "prove his innocence." The appellant maintained that such reasoning was legally untenable, as it imposed upon him a burden which he did not, in law, bear. Consequently, the conviction and the resulting dismissal were said to be unsupported in law.

Finally, the appellant asserted that the Disciplinary Authority relied on extraneous and irrelevant considerations and drew inferential conclusions that bore no rational connection to the evidence actually adduced before it.

RESPONDENT’S SUBMISSIONS

The Respondent raised a preliminary point to the effect that the grounds of appeal filed by the Appellant were incurably defective. It was submitted that the said grounds offend against the requirements of Form LC4 as prescribed under the Labour Court Rules, S.I. 150 of
 2017, in that they lack the requisite conciseness and precision. The Respondent contended that rather than articulating clear grounds of appeal, the Appellant merely recounted the events that transpired during the disciplinary hearing. On that basis, the Respondent urged the Court to strike the appeal from the roll.

Upon consideration of the arguments advanced, the Court delivered its ruling wherein grounds of appeal numbered 2, 3, and 5 were struck out for having been improperly placed before the Court. Ground 7 was formally withdrawn by the Appellant, while ground 1 was abandoned on the date of the hearing. Accordingly, the appeal proceeded to hearing on the remaining grounds, namely grounds 1, 4, 6, and 8.

**ISSUES FOR DETERMINATIONS**

From the remaining grounds of appeal, the following issues for determination arose,

1. Whether the Disciplinary Authority erred in finding the appellant guilty of misconduct without clearly identifying the specific conduct that contravened paragraphs 4 and 7 of the First Schedule to the Public Service Regulations, 2000.

2. Whether the findings of misconduct were sustainable in the absence of material evidence and in circumstances where the burden of proof was improperly placed on the appellant.

**ANALYSIS**

**Whether the Disciplinary Authority erred in finding the appellant guilty of misconduct without clearly identifying the specific conduct that contravened paragraphs 4 and 7 of the First Schedule to the Public Service Regulations, 2000**

The appellant faced two charges for allegedly violating paragraphs 4 and 7 of the First Schedule to the Public Service Regulations. These charges were separate and distinct from one another.

Paragraph 4 of the First Schedule to the Public Service Regulations, 2000 makes it an act of misconduct for an employee to engage in,

“Improper, threatening, insubordinate or discourteous behaviour, including sexual harassment, during the course of duty towards any member of the Public Service or any member of the public”

Paragraph 7 of the First Schedule to the Public Service Regulations, 2000, in turn, provides that it is an act of misconduct for an employee to engage in,
 “Unbecoming or indecorous behaviour, including the consumption of intoxicating liquor to excess or of dangerous or prohibited drugs, or improper association with minors, at any time or place in any manner or circumstances likely to bring the Public Service or any part thereof into disrespect or disrepute”

The appellant submits in the heads of argument that the Disciplinary Authority found them guilty of contravening paragraphs 4 and 7 of the First Schedule (section 2) of the Public Service Regulations. However, the appellant argues that the Disciplinary Authority did not clarify which specific conduct amounted to a violation of paragraph 4 and which conduct breached paragraph 7. Consequently, the appellant contends that the Authority’s failure to distinguish the conduct in relation to each provision effectively amounts to a failure to provide reasons for its decision

In the case of *Kaziningizizi vs Dzinoruma HH106/06* it was held that,

“A judicial decision that is not explained easily subjects itself to criticisms of being arbitrary and/or capricious. Where the litigants have presented their competing facts and arguments before the trail court, they have a legitimate expectation to know whether their version of the facts and their argument have been received and if not, why. So fundamental is the legitimate expectation of the litigants in our law that the legislature saw it fit to make it one of the duties of administrative authorities to give reasons for their decisions.”

The principle established in *Kazingizi supra* underscores the importance of providing reasons for judicial and administrative decisions. It was held that a decision lacking a clear explanation is susceptible to being perceived as arbitrary or capricious. Where parties have presented their evidence and arguments, they are entitled to know whether, and to what extent, their submissions were considered. The duty to give reasons is not merely procedural but is a fundamental aspect of fair decision-making, and it has been recognized by the legislature as a key obligation of administrative authorities.

Having set out the legal position on the requirement to provide reasons for a decision, I now turn to the Determination that was served upon the appellant. A reading of both the Determination and the penalty reveals that the Disciplinary Committee merely pronounced the appellant guilty and recited the alleged facts. However, it failed to clearly link those facts to the specific charges or to distinguish which conduct constituted a contravention of paragraph 4 and which fell under paragraph 7 of the Public Service Regulations, 2000.


This lack of specificity renders the determination procedurally deficient. In disciplinary proceedings, where an employee faces more than one charge, each based on a distinct regulatory provision, it is imperative that the adjudicating authority clearly identifies which factual allegations support each specific charge. The failure to do so not only undermines the fairness of the process but also deprives the appellant of the opportunity to properly understand and, if necessary, challenge the basis of the findings against them. The mere restatement of alleged facts without mapping them onto the specific regulatory provisions falls short of the standard required for a reasoned decision.

Furthermore, the duty to give reasons ensures that the affected persons are not left to speculate as to the reasoning behind the outcome. In the present case, the Disciplinary Authority’s failure to distinguish between the alleged misconduct and the relevant provisions it purported to apply renders its decision susceptible to being set aside. Accordingly, I find that the Disciplinary Authority erred in finding the appellant guilty without clearly identifying the specific conduct that contravened paragraphs 4 and 7 of the First Schedule to the Public Service Regulations, 2000.

**Whether or not the findings of misconduct were sustainable in the absence of material evidence and in circumstances where the burden of proof was improperly placed on the appellant.**

The appellant contends that the issue for determination by the disciplinary committee was whether the appellant had in fact called Ms Nyamurembwa between 2011 and 2014 and if so whether such calls constituted “sexual harassment”.

It appears from the record that the Disciplinary Authority, in its findings, placed undue reliance on the assertion that the appellant did not deny having telephoned Ms. Nyamuremba. The Authority recorded the following:

“You did not deny that you phoned Ms. Nyamuremba during the period in question, but you requested her to produce details of the cellphone numbers you used when you phoned her, where she cited that she lost the cellphone she was using between 2011 and 2013: hence she could not retrieve the messages sent to her during the period in question.”

This finding is plainly inconsistent with the evidence recorded during the disciplinary proceedings. At page 6 of the minutes, when questioned, the appellant categorically denied the allegations. Further, at pages 66 and 67 of the same minutes, when specifically asked whether he had ever called Ms. Nyamuremba, the appellant responded unequivocally that he had "never phoned her." It is therefore evident that the Disciplinary Authority misdirected itself in concluding that the appellant did not deny telephoning the complainant. Such a finding is materially at odds with the appellant’s recorded responses and cannot be sustained on the evidence before the Committee.

Moreover, the Disciplinary Authority appears to have further misdirected itself in finding that the charge of sexual harassment had been proved. Notably, the term "sexual harassment" is not defined within the Public Service Regulations, Statutory Instrument 1 of 2000. However, under general labour law principles and as understood in terms of the Labour Act [Chapter 28:01] as amended, sexual harassment entails unwanted conduct of a sexual nature that causes the complainant to feel humiliated, offended, or intimidated.

In the case of Sibanda vs Mwonzora, HH 713/20 the learned Judge remarked that,

"It is a cardinal principle of the law of procedure that he who alleges must prove. He must adduce clear and unambiguous evidence which points to the veracity of his claims. He does not prove by argument as the applicant seeks to do in casu. He proves by evidence

Where he fails to prove, his case will not stick. Where, however, he proves his case will see the light of day." Given the seriousness and specificity of the allegation, the burden lay with the employer to adduce credible evidence demonstrating that the appellant engaged in conduct of a sexual nature that was unwelcome to the complainant. In this case, the burden was not discharged by the employer as the content of the alleged phone calls and text message was not produced or proven. In the absence of such evidence, the Disciplinary Authority could not reasonably or lawfully conclude that the elements of the offence were satisfied. A finding of guilt in such circumstances is unsupported by the evidentiary record and cannot stand.

DISPOSITION

In the result, the appeal succeeds. The following order is made;

ORDER:

1. The appeal be allowed with costs
2. The decision by the Respondent’s Disciplinary Authority to finding the appellant guilty, and the concomitant sanction of dismissal be set aside, and substituted with the following:


“The Employee is found not guilty of contravening paragraphs 4 and 7 of the Public Service Regulations 2000.”

3. The Respondent is ordered to reinstate the Appellant with effect from the date of unlawful termination and without any loss of salary and benefits.

4. If reinstatement is no longer possible, the Respondent is ordered to pay the Appellant damages in lieu of reinstatement, the quantum of which is to be agreed by the parties within thirty days from the date of his judgment.

5. If the parties are unable to agree on the quantum of the damages in lieu of reinstatement, either party may approach this court for quantification of the damages
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