Itayi Siyakurima v E. Gwanzura N.O. & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/34/2025
HARARE, 28 JANUARY, 2025 AND
31 JANUARY 2025
CASE NO LC/H/1148/24
JUDGMENT NO. LCH//
CASE NO. LC/H/1148/24
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/34/2025

HARARE, 28 JANUARY, 2025   AND

31 JANUARY 2025                        		                      CASE NO LC/H/1148/24

ITAYI SIYAKURIMA					APPELLANT

E. GWANZURA N.O.					1ST RESPONDENT

MINISTER OF PRIMARY AND

SECONDARY EDUCATION				2ND RESPONDENT

PUBLIC SERVICE COMMISSION			3RD RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant			- L. Michael, Attorney

For Respondents		- F. Mwatsveruka, Officer

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondents. The appeal was made in terms of Section 51(1) of the Public Service Regulations S.I. 1 of 2000. Respondents opposed the appeal.

The grounds of appeal were initially four-fold but appellant abandoned the 1st ground leaving the following;

“2. The disciplinary committee further erred at law when it relied on hearsay evidence instead of calling for direct evidence by calling a key witness who was present at the event of the alleged assault.

3. The disciplinary committee further erred at law when it failed to balance the evidence on probabilities considering the fact that the complainant and the witness had sour relationship, which could have resulted in the fabrication of the said charges.

4. The disciplinary erred at law when it favored the testimony of other witnesses whose credibility was affected by the sour relationship over the testimony of all the other witnesses.”

Appellant prayed for the setting aside of his dismissal.

In their opposing affidavit the respondents countered thus;

“4 Ad Ground 1-2

…

From the record of proceedings, it can be noted that the Disciplinary Committee did not rely on hearsay evidence. During the hearing, the complainant, Kudakwashe Gumbugwa testified and also Theophilus Chipendo who was with Kudakwashe Gumbugwa at the time of the assault testified during the hearing. The Appellant could have called the witness who was present when the assault occurred to corroborate his defence.

Ad Grounds 3 and 4

Yes it is acknowledged that there was bad relationship between the complainant and the Appellant but however there was overwhelming evidence pointing to the fact that the Appellant indeed uttered those discourteous words to the complainant. There is evidence that at several occasion the Appellant was reported to the police for uttering threatening words to the complainant and this was also echoed by another witness, the Head of Chikanga Secondary School. So, to say the allegation could have been fabricated as a result of the sour relation between the two is incorrect. In any case, the sour relationship between the complainant and the Appellant does not justify such despicable act from the Appellant.”

Respondents prayed for the dismissal of the appeal.

Analysis

The case involves 2 (two) discrete assaults one physical and the other verbal. As regards the physical assault the appellant alleges that the Disciplinary Authority DA relied on hearsay evidence rather than first-hand evidence. The complainant Kudakwashe Gumbugwa gave evidence at the disciplinary hearing. The critical part of his complaint is recorded thus;

“Kudakwashe: Whenever he (appellant) saw me he used to say tell your sister Nomsa that I love you.  When I went to the dam with my cattle, he called me and kicked me twice in the ribs and slapped me. He picked a brick and he was held by Sir Matsinhire a secondary school teacher who was there.

Committee: 	Who was there? Where?

Kudakwashe: 	Theo Matsvairo, at the shops about 50m from the shops.

Committee: 	Did anyone witness that?

Kudakwashe: 	Not sure but Theo Matsvairo.”

The excerpt shows that the complainant himself testified as to the assault perpetrated upon his person by appellant. That is direct or first-hand evidence rather than hearsay as alleged by appellant. The appellant cross-examined Kudakwashe. He never put it to him that his complaint was fabricated except by way of vague suggestion that Kudakwashe had been coached. Theo Matsvairo testified and he confirmed that the assault occurred in his presence. Appellant’s 2nd ground was thus misguided because the Disciplinary Authority relied on the clear evidence of the complainant which was corroborated by his companion who witnessed the assault.

As regards the verbal assault appellant stated that the Disciplinary Authority failed to give due weight to the effect of the sour relationship between him and complainant. The complainant was the Acting Head Florence Nhokodi, who testified as follows;

“Ms Nhokodi:	ECD teacher. 16/10/21 I requested a briefing with teachers, Mr Masiyakurima went to the toilet, came and stood a distance from others, started assaulting me. At 10am he went to the bar.

Around 2pm in the afternoon, two female teachers brought a report on beating of a child. Around 4pm he came and uttered obscene words… Around 6pm, parents of the child came with two letters…

Committee: 	Maitukwa kupi?

Ms Nhokodi: 	At home…

Committee: 	Is there anyone who heard it?

Ms Nhokodi: 	Ms Nyikadzino and Mr Gura

Committee: 	If someone say you hated him, what is your comment?

Ms Nhokodi: 	I had moyo wekurera and kept him semunhu ane 1 year pabasa.

Committee: 	Tell us about the bottle of beer;

Ms Nhokodi: 	He had it and was under the influence of alcohol and later brought cooking oil.

Committee: 	What was the relationship before?

Ms Nhokodi: 	It was good before.

Committee: 	If others say you had an affair?

Ms Nhokodi: 	Never ever before.”

Ms Nyikadzino confirmed that appellant uttered the same obscene insult testified to by complainant. Mr Gura testified that;

“Mr Masiyakurima was shouting insults and threats against my name and Ms Nhokodi and threatened even to kill someone.”

Despite evidence of a poor relationship between the parties, the evidence of the verbal assault was clear and corroborated by key witness/es.

Conclusion

The material evidence on both assaults pointed to appellant’s guilt. Therefore the finding of guilt by the Disciplinary Committee was consonant with the balance of probabilities. The case cited by appellant speaks against his argument.

S v Mlambo 1994(2) ZLR 410(S) 413C

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an appellant court unless satisfied that it defies reason and common sense.”

The Disciplinary Committee’s findings in casu aligned with reason and common sense.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E