Ivy Mhasvi v Ministry of Home Affairs

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/171/24
HARARE 22 JANUARY,2024
CASE NO. LC/H/894/23
AND 15 APRIL, 2024
In the matter between:-
IVY MHASVI
Appellant
---------


==============================THE LABOUR COURT OF ZIMBABWE
HARARE 22 JANUARY, 2024
AND 15 APRIL, 2024

In the matter between: -

IVY MHASVI
Appellant

Versus

MINISTRY OF HOME AFFAIRS
Respondent

Before the Honourable L. Hove, Judge:

For appellant : Mr. J. Makanda
For respondent: Ms. A. Zikiti

The appellant was employed by the respondent as a processing officer and was stationed at Parirenyatwa Hospital Sub-office.

The appellant was charged with misconduct in terms of Section 44 (2) (a) as read with paragraph 3 of the 1st schedule of the Public Service Regulations SI 1 of 2000; failure to perform any work or duty properly assigned, a failure to obey a lawful instructions, including circulars, instructions or standing orders issued by the commission, the treasury or the accounting officer, the specific allegations were that she had improperly completed a notice of Birth of a child (BDI) forms in respect of Nyakoto Zara Minana, in the absence of both the father and mother of the child in breach of a standing order.

The appellant pleaded not guilty to this charge and disciplinary proceedings ensued.

The appellant was found guilty and dismissed. In dismissing the appellant, the disciplinary committee stated that the appellant was found guilty of violating a different section of the public service regulations than that which she had been charged with.

The appellant argued and submitted to the Court that a person cannot be found guilty of an offence that has not been preferred against him or her, reliance for this proposition was placed on the case of Nyarumbu v Sandvik Mining and Construction Zimbabwe (Pvt) ZLR (5) 314. That this is the correct position of law is beyond dispute, a person must know what case he has to answer to in order for them to prepare and defend themselves against the allegations.

The respondent on the other hand argued that the citing of sections 2 and 3 (c) was a clerical error a technical mistake and the disciplinary committee’s decision cannot be dismissed on the basis of a technical error.

The Supreme Court has ruled in the case of Air Zimbabwe (Private) Limited v (1) Chiku Mnensa (2) Mavis Mwarweye SC 89/04 that;
 “a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

The appellant in this case was made aware that she was being charged with the paragraph 3 of the first schedule of the Public Service Regulations SI 1 of 2000. A perusal of the disciplinary proceedings show that this was the issue dealt with by both parties that is whether or not the appellant failed to perform any work or duty properly assigned, or failure to obey lawful instructions, including circulars, instructions or standing orders issued by the commission, treasurer or, the accounting officer. The specific allegations were that she had improperly completed a notice of Birth of child (BDI) forms in respect of Nyakotyo Zara Minana in the absence of both the father and the mother of the child in breach of a standing instruction specific findings were made by the committee relating to this charge which included that;

- According to procedure the processing of an emergency birth application from a sub-station to market square District Registry is facilitated by telephone communication between the sub office supervisor at market square followed by a letter addressed to that specific supervisor.
- Ms Mhasvi indicated that she did not make the telephone call as expected; neither did she address the envelope containing the BDI to any specific supervisor (negligence).

According to affidavits by Emillia Ngwende and Makomborero Nyakotyo, they both never presented themselves before Mhasvi at the suboffice. There was indication that she was at chicken inn when her forms were taken to Parirenyatwa by a tout, while Nyakotyo states that he was in Dubai on 24th of December the relevant date.

Mhasvi mis’ represented to the committee that the only mode of telecommunication at Parirenyatwa sub office was her cell phone where as there is a landline at the sub office (dishonesty).

Mhasvi indicated that they could not verify the concerned parent’s faces because they were wearing masks…

These findings clearly show that the appellant had improperly completed a notice of Birth of a child (BDI) forms in respect of Nyakotyo Zara Minana, in the absence of both the father and the mother of the child and in breach of a standing circular.

The disciplinary proceedings can therefore not be decided on the basis of an error that was made by the citing of the incorrect sections. Labour matters should be decided on their merits and not on the basis of a technicality which resulted because of a clerical error.

In the case of Dalny Mine v Banda SC 39/99 it was observed that a litigant cannot seek to benefit from a technicality. It is undesirable that Labour matters be decide on the basis of technicalities.

The evidence led in this case including the findings of the committee clearly show that the appellant processes the BDI in the absence of the child’s parents, one was in Dubai and the other was sitting in a chicken inn somewhere away from the sub office. These were the allegations that had been preferred and which allegations she had pleaded to. These were also the allegations addressed by both parties during the disciplinary proceedings. The allegations that rules of natural justice were not accorded can therefore not be true in the circumstances of this case.

The apparent irregularity caused by the clerical error cannot vitiate the proceedings. See the case of Nyahuma v Braclays Bank Pvt Ltd SSC 67/05.

A perusal of the hearing minutes indicate that the appellant irregularly filed the forms in the absence of both parents. This shows that she has no case on the merits of the case and she cannot seek to escape the consequences of her misdeeds on the basis of the failure, by another employee, to conduct the proceedings correctly. This was frowned upon by the Supreme Court in the Air Zimbabwe case (supra)

The appellant also challenges the factual findings made by the committee. This Court, sitting as an appellant Court cannot readily interfere with the findings of a trial Court based purely on factual findings. In the case of Nyahondo v Hokonya & ors 1997 (2) ZLR 475 (5) the Court held that;

“an appellate Court will not interfere with the decision of a trial Court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial Court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible persons who had applied his mind to the question to be decided could have arrived at that decision”

The evidence placed before the trial Court supported the findings of the Tribunal a quo. The appellant also challenges factual findings without showing that the findings made were grossly, irrational. See Hama v National Railways Zimbabwe (1) ZLR 664 where the Court stated that;

“the general rule of law, as regards irrationality, is that an appellate Court will not interfere with a decision of a trial Court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial Court, the findings complained of is so outrageous in its defiance of logic…that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion”

The appellant did not even show that the factual findings were grossly irregular.

It is also trite law that;

“in general, in finding facts and making inferences in a civil case, the Court (the committee in casu) may go upon a mere preponderance of probability, although in so doing does not exclude every reasonable doubt…

In civil cases one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

The committee in casu balanced the probabilities and found that it was the more natural conclusion that the appellant irregularly completed the BDI in the absence of both parents. The committee cannot be faulted for their decision unless it can be shown that the factual findings were grossly irregular, which has not been demonstrated in casu.

In the result, there is no basis for this court sitting as an appellate court to interfere with the finding of guilty.

The appellant also challenged the imposition of the penalty without considering or taking any mitigation factors. The imposition of a penalty before hearing the offending employee in mitigation is a misdirection on the part of the tribunal aquo. This is trite. The irregularity must be put right. In Dalny Mine v Banda 1999 (1) ZLR 220, Mc Nally JA as he then was, while observing that as a general rule labour matter should not be decided on the basis of technicalities, went on to state that such technicalities should be put right by either the court itself hearing the mitigation before passing an appropriate penalty or by remitting the matter to the court aquo for it to hear the appellant in mitigation before the imposition of an appropriate penalty. The technicality would thus not be ignored but but right.

The following order is thus appropriate;

Order;


1. The appeal being without merit be and is hereby dismissed.
2. The decision of the committee is amended to read;
   “the employee, Mhasvi is found guilty as charged.”
3. The matter is remitted to the tribunal aquo to hear the appellant in mitigation before imposing an appropriate penalty.
4. Each party bears its own costs.
--- END OCR FALLBACK ---