Idah Chihwa v Ministry of Home Affairs

IN THE LABOUR COURT OF ZIMBABWE             JUDGMENT NO. LC/H/73/2013

HELD AT HARARE ON 4th MARCH, 2013             CASE NO. LC/REV/H/254/2011

In the matter between




IDAH CHIHWA                                           - Applicant

And

MINISTRY OF HOME AFFAIRS                      -Respondent




Before The Honourable L. Kudya, President

For Appellant              - Mr. T.P Machiridza (Legal Practitioner)

For Respondent             - Ms. Kuipa (Legal Counsel)



KUDYA, L.



      This is an application for a review of the decision of the Respondent

Disciplinary   Hearing    Committee   which   found    the   applicant   guilty   of

contravening the Public Service Regulations SI 1/ 2000.



      The brief facts of the case are that applicant who was employed as an

immigration officer based at Beitbridge boarder post, used a visa book whose

whereabouts could not be accounted for after she had been the last one to use

it on 17th August 2009.
      On 21st December 2009 she was charged with contravening section 44(2)

as read with paragraph 9 of the First Schedule of the Public Service Regulations

1/ 2000 as amended it being alleged that she failed to take reasonable care of

State property. In particular it was the respondent’s contention that after the

applicant had
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issued the visa stickers from the visa book in question that was the last time the

book was seen hence she had to account for it.



      She responded to the allegations in writing on        the 7 th of   February

2010.On 18th June 2010 she was brought before the Disciplinary Committee

where her matter was deliberated .The Disciplinary Committee recommended

that the Disciplinary Authority find her guilty as charged and that it impose on

her a penalty in terms of section 50(c) of the above quoted regulations, that is

to reduce her salary and grade from principal immigration officer to that of

senior immigration officer .



       The Disciplinary Committee noted that it was evident from the evidence

led at the hearing that the applicant was not yet ready to assume any position of

responsibility. On 6 April 2011 the Disciplinary Authority ruled as had been

recommended by the Disciplinary Hearing Committee. Appellant was therefore

duly demoted to the grade of senior immigration officer. Aggrieved by the

decision the applicant applied to this court on 12 May 2011 to have her matter

reviewed by this court.



The basic grounds of review are as follows:
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     1. The Disciplinary Committee was not properly constituted in that the

        person who chaired it had not been properly appointed by the head of

        Ministry as required by the Public Service Regulations. In the result the

        recommendations which led to Applicant’s demotion were fatally

        defective to that extent.

     2. Applicant was tried prematurely as no thorough and conclusive

        investigations into the matter had been done to establish her guilt and

        the role played by her workmates on the matter.


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     3. The charge letter was defective to the extent that it did not

        particularize   applicant’s   negligence   and   what    a   reasonable

        immigration office should have done faced with circumstances similar

        to those which obtained in her case.

     4. Applicant’s right to be heard was violated by the fact that the time

        lapse from when the offence was discovered to the time she was

        penalized was so long that the recollection of the events was affected.

        She argues that the delay caused her to exhaust all her financial

        resources and resulted in her appearing on her own without counsel

        on the day the matter was finally heard. This in her view compromised

        her right to legal representation.



     She also argued that she was denied sight of the circular which the

committee had relied on in her case thus compromising the outcome of her

case .In particular she contends that if the committee had allowed her to

produce documents on the matter these would have showed that the visa book
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was not a security item at the time of the allegations. It was her contention that

it only became a security item since its classification as such sometime in

September 2009 following instructions from her bosses to treat it as such with

Immediate effect (the underlining is mine)



   Decision of the committee was irrational as the decision to find her guilty of

failing to take reasonable care of the book was not supported by evidence which

was led at the hearing.



On the other hand the respondent maintained that the applicant’s application

for review was without merit for the following reasons




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      1. The Permanent Secretary for the Ministry of Home Affairs Matshiya

          correctly delegated the function of chairing of the Committee to

          Museki. In any event during the hearing the applicant had accepted

          that the Committee was well constituted hence, the allegation that it

          was improperly constituted was an afterthought by the applicant and

          it had no foundation



      2. Proper investigations into the matter had been done and the people

      who testified basically outlined procedures which were meant to be

      followed in respect of the visa books in applicant’s department. The book

      in question was a security item and it had to be handed over in terms of

      the correct procedure laid down in the handover takeover procedures. In
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fact respondent argued that the book could be equated to money hence

it had to be treated as a security item.



3. The charge was clear in that it particularized the fact that applicant was

the last one to use the book in question hence she had to account for it.

It also maintained that the copies of the stickers from the visa book were

all availed at the hearing and the applicant had occasion to inspect these

so that if she had any query as regards them she would have raised that

at the time of the Disciplinary hearing.



4.    Applicant was afforded a fair hearing. The delay was due to the fact

that for the greater part since case came to light applicant was on

maternity leave. She only availed herself on 2 ndJanuary 2010.The applicant

was not denied sight of any document. The postponement of the hearing

was when the chairperson was out on business. In any event if applicant

had objections to the matter proceeding without her lawyer she should

have raised that at
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the time of the Disciplinary hearing. All documents pertaining to the case

were produced, it is simply that applicant did not follow procedure of

handing over the visa book as a security item.



5. The decision by the Disciplinary Committee was not grossly

unreasonable as it        was backed by evidence. It was clear that the

applicant had failed to look after State property properly hence the


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      allegations. The Committee therefore rightly found the applicant guilty on

      the basis of evidence which was led on the matter.



      A reading of the grounds articulated above and the responses thereto

shows that applicant raised both review and appeal issues in the same matter.

This is against the spirit of the Labour Court rules which have separate

provisions for appeals and reviews. Even though the responses by the

respondent touched on some of the issues of the merits of the case it was clear

from the relief sought that what the applicant had brought before the court was

strictly a review application.



       The court did not lose sight of the fact that, up until towards the end of

the matter the applicant was a self-actor hence that could explain her mixing of

the review and the appeal issues in the same case. However, given the manner

in which the issues were articulated it was clear that the thrust of the matter

was the review. The court therefore concluded that to rule on the appeal issues

where they have not been addressed with sufficient particularity would not do

justice to this case .As a result the court decided to confine itself to the

procedural irregularities which the applicant complained of .Resultantly this

court did not rule on any of the appeal grounds which were raised by the

applicant.



      The law relating to applications of this nature is set out in the leading case

of Dalny mine vs Banda 1999(1)ZLR(S)221which states in summary form that

where procedural irregularities are alleged and proven to be present in a case,

these should not be ignored but should be put right. This can be done by

remitting the
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matter for a hearing afresh in a procedurally correct manner or alternatively for

the tribunal seized with the matter to hear evidence on the matter afresh.



       Further to that the case of Tichawana Nyahuma vs Barclays Bank

(Private) Limited SC 67/05 points out that, it is not all procedural irregularities

which vitiate the proceedings. Such irregularities should go to the root of the

case and should be such as would prejudice the party relying on them if they are

not put right.



      In the instant case it was submitted by the respondent that the head of

the Ministry delegated the authority to the person who was appointed to chair

the hearing. The applicant challenged the production of the letter of

appointment on the basis that it came at the eleventh hour thus suggesting it

could have been a doctored document. The respondent gave in and did not

produce the document finally but it had been clear from its head of argument

that the chairperson had been appointed by the head of the Ministry. The court

was not persuaded that the document was doctored because no evidence to

demonstrate that had been tendered.



       Whilst it was proper for respondent to introduce the document early

failure to do so in the court’s view was not fatal. In any event it would be

stretching one’s imagination too far to conclude that the chairman decided to

appoint himself to preside over the applicant’s case for no reason. The court was

therefore satisfied that the committee which deliberated on the applicant case
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was well constituted. In any event it is also worth noting that when the applicant

was questioned about the constitution of the committee during the hearing, she

expressed satisfaction over its


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composition. For her to now turn round and say the same committee was not

well constituted surely flies in the face of her earlier acquiescence.



      Applicant also argued that the regulations do not provide for delegation

of the authority of the chairman. She maintained that if the secretary indeed

appointed Museki to chair that was still irregular since Museki was not a

principal establishment officer. The regulations define a chairman as a principal

establishment officer or a member of equivalent rank. They also indicate that

for one to be a principal establishment officer that designation is accorded to

him by the Secretary. Nowhere in the evidence was it shown that Musekis’ rank

was not equivalent to the principal establishment officer grade as envisaged by

the regulations. The court was therefore of the view that this line of argument

did not advance the applicant’s case any further. In the result the court was

satisfied that the committee was appointed regularly and properly constituted.

There was therefore nothing which vitiated its proceedings. No prejudice was

accordingly suffered by the applicant’s appearance before such a committee.



      As regards the applicant’s second ground of review it is pertinent to note

that witnesses were called by the respondent to tell the hearing committee how

the applicant and her colleagues were operating at the border post in question.

Whether what they stated was factually accurate or inaccurate is not an issue for
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review but rather one which touches on the merits of the case. Since this court

did not delve into the merits of the case, suffice therefore to say that if the

argument by the applicant about the insufficiency of evidence is well founded

that can only be determined on appeal.




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      The same sentiments apply to the defects complained of as having been

existent in the charge letter. These also go to the root of the merits of the case

and this court did not rule on this aspect as well.



       Applicant also argued that her right to be heard was compromised in

view of the delay that was occasioned on the matter. It is pertinent to note that

it was accepted as fact that for the greater period after these allegations had

come to light the applicant went away on maternity leave hence there was no

way the matter could have been conclude then .



       Further to that applicant did not protest that her matter could not be

heard in the absence of her legal practitioner. Respondent was not duty bound

to insist that applicant has her legal practitioner available at the hearing if

applicant felt sufficiently equipped to deal with the matter on her own. In any

event if one looks at how she articulated all the issues that were at stake and the

legal arguments that she raised , these were consistent with one well versed

with her defence. The court is therefore satisfied that she was afforded a fair


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hearing and the documents which all formed part of her case sufficed for her to

defend herself.



      The argument about the stage when the visa book began to be

considered as a security item are also facts relating to the merits of the case

which as the court has already stated are appellate issues. The argument about

irrationality in the decision of the disciplinary committee is also an appellate

ground.



         In the light of the foregoing it is clear that the applicant has failed to

make out a good case for a review of the decision of the disciplinary committee

based on the grounds she raised. The application for review is accordingly

dismissed with costs.


                                              JUDGMENT NO. LC/H/73/2013



It is therefore ordered as follows:



That the application for review being without merit be and is hereby dismissed

with costs.




Signed

L.Kudya

President Labour Court


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Manase and Manase – Appellant’s Legal Practitioner




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