Innocent Mangoma v Public Service Commission & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/403/25
HARARE, 14 OCTOBER, 2025
And 22 OCTOBER 2025
CASE NO LC/H/556/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/403/25 HARARE, 14 OCTOBER, 2025

And 22 OCTOBER 2025	CASE NO LC/H/556/25

INNOCENT MANGOMA	APPELLANT

PUBLIC CERVICE COMMISSION	1ST RESPONDENT

MINISTER OF EDUCATION	2ND RESPONDENT

CHAUKE N.O.	3RD RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- S. Mugumise, Attorney

For Respondents	- A. Chakanyuka, Attorney

MUSARIRI, J:

Applicant applied to this Court for the review of his dismissal from employment by Respondents. The application was made in terms of section 89 of the Labour Act Chapter 28:01

as read with rule 20 of the Labour Court Rules, 2017. Respondents opposed the application. At the onset of oral argument, applicant abandoned his point in limine.

Applicant’s case

The grounds for review were triplet thus

“1.  The 2nd Respondent grossly misdirected itself by charging the Applicant for contravening section 44 (2) (a) of the Public Service Regulations, 2000 when the provision does not create any offence.

The disciplinary committee grossly misdirected itself by being an arbiter in its own cause.

The 2nd respondent’s decision not to furnish Applicant with reasons for his dismissal and the record of proceedings is grossly irrational and irregular.”

The grounds were amplified by the founding affidavit as follows,

“14.  Firstly, I am advised by counsel which advice I accept that the 2nd Respondent committed a gross irregularity by charging me of contravening section 44 (2) of the Public Service Regulations. I believe that I am fortified in my view because the provision does not create any offence at all.

Secondly, the disciplinary committee functioned as both the adjudicator as well as the prosecutors. There was no semblance of impartiality or demarcation of roles which would create checks and balances.

To the contrary, the disciplinary committee served two purposes. It acted as my accusers as well as the adjudicator. This means that the disciplinary committee was an arbiter in its own cause and I am advised by counsel that this was a gross irregularity which tainted the whole process.

Thirdly, I was not given any reasons for the disciplinary committee’s decision or my dismissal. I also requested the record of proceedings to enable me to apply for review and to date the 2nd Respondent has not furnished me with anything….

Furthermore, I was found guilty of refusing to go to the hospital to identify the person who signed the leave form when in actual fact that is not an offence which is envisaged by the Regulations.”

Applicant then prayed that he be reinstated without loss of pay and benefits.

Respondent’s case

The opposing affidavit deposed by Mr Moses Mhike countered that,

“5.  …..The Applicant was not charged for contravening section 44 (2) (a) but rather he was charged in terms of section 44 (2) as read with Paragraphs 1, 5, 13 (c) and 13 (d) of the First Schedule to the Public Service Regulations, 2000. (the Regulations) …. The actual

acts of misconduct were clearly anchored in the substantive paragraphs of the First Schedule, which were explicitly mentioned in the same charge letter as Paragraphs 1, 5, 13 (c) and (d). …..

….firstly, the Applicant was charged by the school head who was the Applicant’s head of Office and later on a Disciplinary committee was constituted by the Applicant’s head of department as provided for under section 42 (1)(c) of the Regulations. Contrary to the Applicant’s assertion, the disciplinary committee did not function as an ‘arbiter in its own cause; nor did it issue a final verdict in the matter. In terms of section 45 (6) (a) of the Regulations, the role of a disciplinary committee is expressly limited to gather information or evidence regarding the alleged misconduct, making findings and submitting recommendations to the disciplinary authority. The disciplinary committee does not possess adjudicative finality; it is the disciplinary authority, a separate and impartial office, which holds the power to make the final decision regarding guilt and sanction … Furthermore, it is important to note that the members of the disciplinary committee were distinct from those who conducted the investigation or formulated the charges, and as such, cannot be equated to prosecutors in any legal sense…..Further, at no point during the proceedings did the Applicant or his legal counsel make a formal application for the recusal of any member of the disciplinary committee, nor did they provide any substantive evidence of bias or conflict of interest.

The Applicant’s allegation that he was not given reasons for the disciplinary committee’s findings or his subsequent dismissal is wholly inaccurate and disingenuous. Contrary to his assertions, the Applicant was in fact furnished with written reasons of the disciplinary authority’s decision. The reasons were clearly outlined in the misconduct determination dated 08 April 2024 signed by the Acting Provincial Director who was the Applicant’s head of department, and was formally communicated to him. With respect to the failure to provide the Applicant with the record of proceedings, it was an oversight which was made by the responsible office which does not invalidate the proceedings and determination in the matter.

…. In this case, the Applicant’s refusal to accompany the investigating authority to the hospital, where he was required to assist in identifying the individual he claimed had completed part of the sick leave form on his behalf, amounted to a wilful failure to disclose material evidence during an ongoing investigation, …”

Respondents then prayed that the application be dismissed.

Analysis 1st Ground

By letter dated 12 September 202 respondents charged applicant with misconduct in the following terms

“Following receipt of a report alleging misconduct on your part, I have to inform you that it has been found that a charge of misconduct be preferred against you.

Accordingly you Mr Mangoma Innocent are being charged with misconduct in terms of section 44

(2) as read with paragraphs 1, 5, 13c and 13 d, of the first schedule (section 2) to the Public Service Regulation 2000, as amended in that;

While stationed at Patchway Primary School where you were senior teacher and sometime between 14 June 2022 and 18 July 2022 you;

Submitted sick leave forms with a forged doctor’s signature.

You refused to go to the hospital where the DMO wanted you to assist the hospital in identifying the person who assisted you in having the forms signed.”

Section 44 of the Public Service Regulations, Statutory Instrument 1 of 2000 provides that “(2)	If, on completion investigations referred in subsection (1), it is found that an

allegation of misconduct should be preferred against the member, the disciplinary authority shall, within seven days after completion of the on investigation-

(a)	inform the member, in writing, of the nature of the allegation against him, and call upon him to submit a written reply to the allegation within fourteen days;”

The provision sets out the procedure for laying charges of misconduct. The charge/s would be specified in the ‘writing’ (letter) informing the member of the charge. In casu the afore-quoted letter dated 12 September specifies the relevant paragraphs in the Regulations which define acts of misconduct. The letter proceeds to set out the specific allegations upon which the charges are based. The offence is set by both the paragraphs in the Schedule and section 44 (2) of the Regulations. Evidently the court finds no merit in the 1st ground for review.

2nd Ground

This  ground  was  eloquently  countered  by  the  afore-quoted  opposing  affidavit.

Respondents relied on section 45 of the Regulations which provide that,

“(2) The hearing shall be conducted without the need to observe the rules of procedure and evidence ordinarily applicable in criminal or civil proceedings, provided, however, that the member concerned is afforded the opportunity to respond to every allegation of misconduct and that substantial justice is done.

At the conclusion of the hearing or soon thereafter as possible, the chairman of the disciplinary committee shall submit to the disciplinary authority-

a notification in writing of its findings and recommendations thereon, including a recommendation as to penalty to be imposed upon the member where it finds the member guilty of misconduct; and

the record of the evidence led at the hearing.”	Underlined for emphasis.

The disciplinary committee in casu made recommendations as per section 45 (b). This is confirmed by the record of proceedings which concludes thus,

“12.	Recommended Determination

Guilty

Guilty

13	Recommended Penalty

1.	Discharge

Signed by	(Minuting)

Disciplinary Committee

Mr E. Chauke (Chairperson)  (signed) Mr F. bhunu (Member)	(signed) Mr M. chingodza (Member)   (signed)”

The disciplinary committee acted as an advisor to the disciplinary authority (G. Mhuma) who wrote the dismissal letter dated 8th April 2024. Lastly the disciplinary authority was not bound by strict rules of evidences and procedure as provided by section 45 (2) cited above. Therefore there was no need for somebody to act as complainant-cum-prosecutor in the proceedings before the committee. Accordingly the Court concludes that 2nd ground for review lacks merit.

3rd Ground

The dismissal letter read as follows,

“Ground (1); Guilty

It was noted during the hearing that you submitted sick leave forms with forged doctor’s signature. Dr Dereck Muteeza testified that he only recommended sick leave for patients he would have attended to. He further testified that he did not attend to you and the handwriting and signature on the sick leave forms were not his. It was also noted that you did not deny that you completed the other part of the sick leave form. One wonders why you refused to assist the DMO in identifying the person who signed the leave form if you were not part of the plot.

Ground (2) Guilty…. “

The letter found applicant guilty and proceeded to set out the reasons therefor. Respondents admitted that they did not furnish the record of proceedings upon request. They submitted it was an oversight. That alone is insufficient grounds for impugning the entire disciplinary process especially in the absence of any prejudice occasioned thereby. The court finds that the ground lacks merit.

Conclusion

The foregoing analyses shows that all the grounds for review lack merit. Therefore the application ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The application for review be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E