Kudzanayi Kusena v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/370/2014
HELD AT HARARE ON 25th FEBRUARY, 2013
CASE NO. LC/H/347/2012
AND 20 TH
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/370/2014

HELD AT HARARE ON 25th FEBRUARY, 2013		CASE NO. LC/H/347/2012

AND 20TH JUNE 2014

In the matter between:-

KUDZANAYI KUSENA						-	Appellant

And

JUDICIAL SERVICE COMMISSION				-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant   	-	Mr. A. Gurira (Legal Practitioner)

For Respondent 	-	Miss K. Kuipa (Legal Practitioner)

CHIVIZHE, J.

The appeal was noted in terms of Section 51 of the Public Service Regulations, Statutory Instrument I of 2000 against a determination of the Disciplinary Authority of Judicial Service Commission handed down on 27 October 2011 which determination found the Appellant guilty of ‘Any act or omission inconsistent with prejudicial to the discharge of official duties including abuse of authority” and imposed a dismissal penalty with effect from 18 August 2011.

At the commencement of proceedings the Respondent took a point in limine.  It was that the appeal, had, contrary to Section 5(1) of the Public Service Regulations, 2000 been noted outside the 21 day time frame for an appeal to be noted to the Labour Court.  It was Respondent’s contention on that basis the appeal ought to be dismissed.  The Appellant was opposed to the point in limine.  It was submitted on his behalf that although he conceded to the delay in filing appeal the Appellant had been a self-actor up until he had sought and obtained the services of legal practitioner.  As a self actor he was therefore not familiar with the provisions in the Public Service Regulations or the Labour Act [Chapter 28:01] for that matter.  The Appellant prayed to the court for leniency.  After listening to submissions by both counsels the Court granted condonation for the late noting of appeal and indicated reasons would follow.  It was the Courts considered view that although the period of delay was seven months the explanation tendered therefore was reasonably convincing. It was also the Court’s view that the issues raised by the appeal would require a resolution on the merits rather than technicalities.

Before I address the merits a brief background to the matter is however necessary.  The Appellant was employed by the Respondent as an Acting Administration Assistant based at High Court Harare.  He along with two other employees Mr Kufakunesu Chirenge and Ms Tendayi Nyawo were charged with misconduct.  The particular charges leveled were of contravening provisions in the Public Service Regulations First Schedule Section 2 of Statutory Instrument No. 1 of 2000 as read with the Judicial Service (Transitional) Regulations, 2010.  The particular paragraphs were as follows:

Paragraph 13 – Corruption or dishonest

Paragraph 7 – Unbecoming or indecorous behavior at any time or place in any manner or circumstances likely to bring the Judicial Service Commission for any part thereof into disrepute or disrespect.

Paragraph 24 – Any act or omission which is inconsistent with or prejudicial to the discharge of official duties including the abuse of authority.

At the disciplinary hearing the Disciplinary Committee found that there had been an unfair splitting of charges. As a result the first two charges were dropped and the last charge retained .The charge arose out of allegations that the complainant one Tapiwa Mudekunye after approaching the High Court with an intention to register her Foreign divorce order in Zimbabwe for it to have legal effect, was advised to seek legal assistance in order to draw up the appropriate court application.  She was then given Appellant’s number.  She then called the Appellant and they met.  The Appellant then collected from her the relevant documents and facilitated the drafting of the documents in the chamber application under case number HC 7312/11.  It was the Respondent’s allegation the Appellant had then demanded $100.00 as part payment.  The Appellant had also referred the complainant to Mr Chirenje to whom the complainant had paid a further $200.00.  It is common cause the Appellant was found guilty and consequently discharged from service.  Aggrieved the Appellant has noted the present appeal.

The grounds on which the appeal is noted are as follows:

The disciplinary committee erred by imposing varying penalties among the three members who were facing the same charges and who were being charged. There was no justification of imposing a discharge penalty to the appellant whilst Ms Tendai  Nyawo was reinstated yet the members were jointly charged.

The disciplinary committee erred by proceeding with the disciplinary hearing yet the  complainant and star witness (Ms Z. Tapiwa Mudekunye) refused to proceed with the  case to finality and refused to come for cross examination and re-examination by the members.

The disciplinary committee failed to accept the fact that the disciplinary authorities before suspending the member should have compiled with Section 414 of The Regulations whereby the member should have been supplied with a report of the disciplinary authority investigation report.

The member was not even given an opportunity to respond to the allegations of the alleged misconduct i.e. the complainant was made to write a report on 17/08/11 and a suspension order was imposed on 18/08/11 meaning to say no investigations were ever made.

There was no evidence tangible proved that indeed the member was the one who darted (SIC) the application or receive the alleged money and therefore it is surprising how the disciplinary committee came up with a verdict of a conviction and discharge over the matter.

The member was even exonerated by Chirenje & Nyawo who were also being charged with him.

The evidence led by Mudefi etc did not link the member in anywhere, to the commission of the case.

There sentence and penalty imposed induces (SIC) member was not given even time to mitigate and was surprised to only received the determination and penalty by post through his established lawyers Chikumbirike and Associates and no reason for such a sentence and penalty were ever supplied to the members.

The disciplinary committee died (SIC) not even considers suggestive presented penalties as per regulations.

The member hereby prays for an entire squash of the penalty and sentence imposed and prays for re-instatement with full benefits.

The Appellant has in his main ground of appeal challenged his dismissal on the general principle of fairness.  The principle which has in South African jurisdiction (and in our jurisdiction) been referred to as the ‘Party Principle’ underscores the need for the employer to treat like misconduct cases alike.  In this case the Appellant alleges that the Disciplinary Committee erred by imposing varying penalties between the three members who were facing similar charges.  He further alleges that there were no compelling reasons for the Disciplinary Committee to have reinstated Ms Tendayi Nyawo and imposed a dismissal penalty in his case.

The Respondent in its submissions rebutted the allegations of inconsistency on the part of the Disciplinary Committee.  In its heads of argument the Respondent went to a great length to show the different roles played by the Appellant, Ms Nyawo and in turn Mr Chirenje.  The Respondent also placed reliance on the record of proceedings before the Disciplinary Committee.

The court once it is seized with an allegation of inconsistency in assessing the fairness of dismissal penalty has to consider whether there are objective and fair reasons for imposing different sanctions for a similar misconduct. The uncontested evidence before the court is that it was the Appellant who made the initial contact with the complainant when she called after being referred to him for purposes of having papers drafted.  The Appellant had advised the complainant to come to his office.  He had then facilitated the preparation of the documents and the chamber application.  The Appellant did not contest being paid $100.00 for his effort.  The Appellant also did not contest that along with Chirenje, he spoke several times with the complainant.  The Appellant also could not establish in the hearing a motive as to why the complainant who was not known to him before this incident would lie against him.  The clear evidence from the record of proceedings is that it was Mr Chirenje and Mr Kusena who had drafted the papers for the complainant and had received payment $100.00 in Appellant’s case and $200 in Mr Chirenje’s case.

Ms Nyawo’s role was that as the Judge’s Clerk she had placed the record containing the chamber application improperly before the Judge.  The evidence before the Disciplinary committed was that the record had not followed the procedure in the High Court before it was placed before the relevant Judge.  Ms Nyawo’s defence however was that she had nothing to do with the prior procedures she could not explain how the record ended up before the Judge.  The Disciplinary Committee found that in the absence of any evidence implicating Ms Nyawo in the actual drafting of the court documents, or any evidence implicating her in the receipt of cash from the complainant the charges could not be sustained.  The Disciplinary Committee however found Ms Nyawo guilty of a lesser charge of contravening Paragraph (3) First Schedule (Section 2) Of The Public Service Regulations i.e. failure to perform any work duly properly assigned or failure to obey lawful instructions including circulars, instructions or standing orders issued by the Commission on the basis that she did not follow instructions and standing orders as to how the record should be placed before a judge. In the circumstances the court clearly cannot reasonably interfere with the finding by the Disciplinary Committee in respect of the three members’ convictions which were based on their individual roles and the varying penalties consequently imposed.

The Appellant alleges that no evidence was led to establish the charge. This ground is clearly misconceived. The record of proceedings contains overwhelming evidence by the complainant implicating the Appellant. The Appellant failed to cross examine her on crucial evidence that she had given him $100 for services rendered and that she had met all three Appellant included several times etc.

The Appellant also raised the ground that evidence by the witness Mudhefi did not link him to the charge. It is clear that the witness’s evidence was based on the procedures to be followed up to the stage the record is placed before a judge. It was not designed to link the Appellant to the charges leveled. This was crucial and relevant evidence before the Disciplinary Committee. The court cannot interfere with Disciplinary Committee finding on that score.

The rest of the grounds of appeal raised by the Appeal are procedural in nature and are not merited.  The Appellant alleges that the Disciplinary Committee erred by refusing to recall the complainant for cross-examination.  The record of proceedings before the Disciplinary Committee clearly shows the complainant testified she was then cross-examined by both counsel for the three Respondents.  The Disciplinary Committee found her an honest and credible witness.  There is no basis for the Respondent submission that she refused to be cross examined. The record shows counsel had requested that she be recalled but the application was dismissed by the Disciplinary committee on the basis that no cogent reasons had been supplied for the recall.  The Disciplinary Committee cannot be faulted for reaching that conclusion. The Appellant alleges the Disciplinary Authority failed to Section 44 of the Regulations, to provide investigation report.  It is trite for any procedural irregularly to vitiate any proceedings prejudice must be established.  The Appellant has not established any prejudice suffered as a result of the Respondents to supply him with the investigative report.

The Appellant also alleges that he was denied his right to mitigate a point strenuously denied by the Respondent.  The Respondent submitted that Appellant was given an opportunity to mitigate through a letter addressed to his lawyers.  The lawyer then responded.  The record shows clearly that Appellant was granted an opportunity to mitigate. The Disciplinary Committee on page 18 of its ruling weighed the mitigating factors before handing down its determination.

The last issue raised is pertaining to the penalty which Appellant alleges was harsh in the circumstances.  The charges leveled against the Appellant were very serious charges.  Given the move to reduce corruption in the public service and society in general the sentence of dismissal from service was clearly warranted in the circumstances.

The appeal is consequently dismissed with no order as to costs.

Nyamushaya, Kasuso & Rubaya,  Legal Practitioners for the Appellant

Civil Division of The Attorney General, for the Respondent