Maurukira Weston v Minister of Primary and Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/83/2023
HARARE, 13 MARCH 2023 &
23 MARCH 2023
CASE NO LC/H/278/18
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/83/2023

HARARE, 13 MARCH  2023 &	CASE NO LC/H/278/18 23 MARCH 2023

In the matter between: -

MAURUKIRA WESTON	APPELLANT

MINISTER OF PRIMARY AND SECONDARY	RESPONDENT EDUCATION

Before the Honourable Kudya J

For the Appellant	Ms C. Mahlangu (Legal Practitioner)

For the Respondent	M. Tembo (Civil Division) KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which found the employee appellant guilty of improperly associating with a school child and penalised him with dismissal.

The background to the matter is that the appellant was in the respondent’s employment as a school teacher based at Guruve Primary School at the time of the allegations. A student at the school one Shumirai Chaora was absent from her home over the Christmas Holiday leading her parents to report such absence to the police. When she resurfaced stating that she been at a friend’s place, the parents took her to the police station. The police decided to have her medically examined. The medical examination concluded that she was sexually active. When she was quizzed about her sexual active status she claimed that she had been raped by y the appellant in 2015 and in 2016 on various occasions she had had consensual sexual intercourse with the appellant.

Following those revelations, the school conducted an investigation which recommended that the appellant with misconduct of improperly associating with Shumirai. A

disciplinary committee sat to deliberate the allegations and recommended to the disciplinary authority that the appellant be found guilty and be penalised with a discharge from employment. The disciplinary authority took up the disciplinary committee’s recommendations and found the appellant guilty and discharged him from employment. Irked by the guilty verdict and the dismissal penalty, the appellant has appealed to this court arguing that his guilt was birthed by dearth of evidence and that the penalty in his case was excessive in the circumstances.

He set out his appeal grounds as follows;

1,       The Disciplinary Authority erred in finding the Appellant guilty of falling in love with a learner Shumirai Chawora and having sexual intercourse with her several times whereas there was no evidence on balance of probabilities to sustain the findings of guilty in that.

The evidence of Shumirai Chawora was not credible nor reliable and was contradictory and uncorroborated that no reasonable tribunal could have relied on it to find guilty/

The Disciplinary Authority failed to reasonably apply its mind and thus failing to note that the whole matter was just concocted and fabricated.

Alternatively

The Disciplinary Authority erred by imposing against Appellant the harshest penalty of discharge from service without considering any corrective measures and mitigatory factors

In the result he prayed that his appeal succeeds and that he be reinstated to his original position without loss of pay or benefits. He prays further that if reinstatement is no longer possible he be paid damages in place of reinstatement.

The respondent is opposed to the grant of appellate relief. The response is styled as

Such:

Ad Para 1-1.2

All evidence was considered during the hearing, from both the Appellant and the complainant. The Appellant was found guilty of improper association based on the written evidence by the complainant as well as oral evidence adduced from the hearing. The Disciplinary Authority took into account that the victim was a single witness and weighed all evidence brought before the hearing. The probative value of the evidence outweighed its prejudicial effect. The complainant was consistent in her narration and even described the Appellant’s house and occupants of the rooms as well as the

sequence of events that transpired when she was sexually abused by the Appellant. She said that during the first encounter she was raped then thereafter she consented as she claimed that they were in love.

The complainant’s mother testified that the Appellant sent his wife for an out court settlement on the matter in January 2017 where he promised to pay cattle. The Appellant did not object to this. The Appellant is not credible and dishonest as he had claimed to have had an affair with the complainant’s mother not the complainant. The complainant’s mother said she had never met him before. The Appellant was unable to prove his affair with the complainant’s mother.

Ad Para 2

The Appellant failed to prove why he should be exonerated from allegations. The sentence is not harsh especially considering the Appellant failed to act in loco parentis With the complainant and such behaviour illustrates that he was a no longer suitable to be a teacher and had to be discharged. The Appellant’s behaviour brought the Public Service into disrepute. The evidence led during the hearing pointed out to the fact that the Appellant was guilty as charged. The appellant was therefore rightfully charged and convicted.

In the result the respondent prays that the appeal be dismissed with costs for lack of merit. It is settled that the appeal court will not lightly interfere with the decision of a trier of fact Unless it can be demonstrated that it was grossly unreason able. See Nyahondo v Hokonya

1997(2) ZLR 457(5) In the matter at hand only 2 issues are to be determined. These are whether there was sufficient evidence to found the appellants guilt and whether the penalty meted out in his case was excessive in the circumstances. The two issues are addressed below;

Guilty Verdict

The appellant argues that there was insufficient evidence to support the guilty verdict. He states that the matter essentially was his word against that of Shumirai since none of the witnesses could give a first-hand account of what had allegedly happened. It was his view that the disciplinary committee should have warned itself on relying on the evidence of a young child. It is his view that if it had done so it would have found him not guilty.

It is settled that proof in disciplinary cases is on a balance of probabilities  See ZESA v Dera SC-79-98 and that the disciplinary tribunal is not bound by the strict rules of evidence as would obtain in a court of law See Mpandasekwa v Green Motor Services Pvt Ltd SC-30-

15. In the case at hand Shumirai stated that appellant first raped her when she had gone to his house to leave some books. She says thereafter appellant proposed love to her and they had consensual sexual intercourse on more than one occasion. It was her testimony that she did not report the rape because the appellant had threatened her with death. She went further to state that during their love affair she would be gifted by one dollar by appellant for every sexual encounter she had with him. She also explained what the appellant’s house was like thus demonstrating that she had been to his house. In reaction to Shumiral’s testimony the appellant was adamant that Shumirai was lying to the court.

His argument was that if art all Shumirai had been raped or had had consensual sexual intercourse with him she would not have waited for that to only come out after her encounter with the police. He was also of the view that if indeed he had a love relationship there should have been evidence of that from someone else other than herself. The court is alive to the fact that indeed child witnesses can be fanciful and imaginable. That being as it may the question that needs to be answered is why would the child create such a story.

Appellant says that she did so because she had to explain her absence from home and the subsequent discovery that she was no longer a virgin. The court accepts that indeed such a reasoning can make sense but that does not become the end of the enquiry. The court notes that the appellant brings in a new dimension that he believes Shumirai’s mother is the one who influenced her to falsely implicate him as a way of hitting back at him for his failed love relationship with her. The strange bit about the alleged love affair between him and Shumirai’s mothers seems to fly in the face of his uncontested attempt to pay Shumirai’s parents. If indeed he was innocent why would he send his wife to negotiate with Shumirai’s parents. The most probable story is that he was trying to appease the parents when he realised that his conduct had come to light and was now attracting criminal and civil repercussions. The court is therefore satisfied that even if the disciplinary committee had treated Shumirai’s evidence with caution it still had to explain the issue of the offer of the payment which the appellant did not dispute. The court is satisfied that indeed of the 2 versions of events of the matter the most probable one is the one that was given by Shumirai.

The court had occasion to read the judgements tendered by counsel for appellant in the cases Madzimure v Minister of Education LC/H/5/21 and Ngwenya v Minister of Education LC/MT/146/15. The appellant sought to have the court conclude on the basis of these 2 cited cases it also finds that Shumirai was not credible. The court however realised that the judgements in question are clearly distinguishable from Shumirai’s case in that on Shumirai’s

case the excuse given by the appellant was not plausible yet in the quoted cases the excuses used seemed to hold some water. In the result the court was persuaded that appellant had not made a good case of appeal based on the 2 judgements.

The court also had occasion to go through the evidence by Shumirai’s mother and the written versions of the family where Shumirai had spent the Christmas period. Very little turns on these versions as they only reiterated what Shumirai had told them on the mere fact that she had been at their place for the period she was not at home. As indicated earlier the whole case stood/fell on the version given by Shumirai and that by the appellant. The same goes for the evidence of the headmaster and that of the investigating chairperson. In the ultimate the court was satisfied that no good case of appeal had been made out by the appellant. The court found no basis to interfere with the discretion of the disciplinary committee and authority. The appeal against verdict being without foundation should therefore fail.

PENALTY

It is settled that penalty is the prerogative of the employer See Circle Cement v Nyawasha SC- 60-03. Granted penalty should be educative first but where the conduct goes to the root of the contract dismissal cannot be judged to be too harsh See Innscor v Chimoto SC-6-12. In the case at hand even though appellant had a long clean employment history record improperly associating with a minor who had looked up to him for protection is a serious abuse which in the courts view could only be penalised by dismissal. Respondent correctly reasoned that such conduct puts it into disrepute if the guardians who the minors look up to for protection turn will and prey on the minors. The court is of the view that no good case has been made out for a less punitive penalty. The appeal should therefore also fail in this regard.

In the result the appeal being without merit in its entirety should fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with costs.

Ruzvidzo and Mahlangu Attorneys, Appellants Legal Practitioners