Mazivangeyi Samhaka v Minister of Primary and Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/177/2021
HARARE, 6 OCTOBER 2021 &
CASE NO LC/H/144/19
22 OCTOBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/177/2021

HARARE, 6 OCTOBER 2021 &			   CASE NO LC/H/144/19

22 OCTOBER 2021

In the matter between: -

MAZIVANGEYI SAMHAKA			APPLICANT

And

MINISTER OF PRIMARY AND 			RESPONDENT

SECONDARY EDUCATION

Before the Honourable Kudya J

For the Applicant		Mr K.T. Mkangamwi (Legal Practitioner)

For the Respondent		Mr Gustin (Civil Division)

KUDYA, J:

This is an appeal against the decision of the respondent employer where it demoted applicant from her position as acting headmistress following allegations of acting contrary to her duties in breach of the Public Service Regulations 1 of 2000 as amended.

The background to the matter is that the employee was charged with 6 acts of misconduct summarised as below:

She failed to report the misappropriation of $1 916 public funds by Andrew Matonga to the police for further investigation as required by Treasury Instruction 0435

She failed to take disciplinary action against Mr Matinenga who had failed to account for $1916 public funds.

She failed to advise the SDC members of the RBZ and Metbank issue which resulted in the loss of $2000 school funds through payment of a bribe to undisclosed RBZ and Metbank officials

She was paid $500 from the school levies as a token of appreciation for the services rendered during her tenure of office in breach of the Secretary’s Circular No. 6 of 2014 which banned any type of incentive.

She failed to enforce proper procurement procedures in the purchase of a refrigerator and various stationery items.

She allowed the collection of an unapproved fees of $6 from all new students joining the school in violation of paragraphs 56.2 and 6.3 of the Secretary’s Circular No 5 of 2009.

A reading of the record of proceedings shows that she conceded all the violations but clearly explained out each of them.  The question which then arises from that is whether it was reasonable for the disciplinary Committee to conclude that such concessions together with the attendant explanations were indeed unequivocal guilty pleas befitting of returning guilty verdicts on them.  It is settled law that the appellate court should not lightly interfere with factual finding of a trier of facts unless it is demonstrated that its discretion was used irrationally See Nyahondo v Hokonya and others 1997 (2) ZLR 475 (SC).

The thread which flows through all the charges and the responses therefore as well as the evidence given on the alleged infractions is that all that the employee did was within the confines of what the SDC adjudged proper.  Her folly lay in not appreciating that she stood at a higher pedestal than the SDC and had to advise the SDC on doing things properly and by the book.  The fact that she failed to do so became her greatest error.

It is clear that indeed all the breaches occurred albeit with some kind of explanation.  The question which then arises is whether a qualified guilty plea can be adjudged a non-guilty plea on account of the qualification.  It is the courts view that a concession remains for what it is and only serves to affect the penalty begetting the infraction. In the result there is nothing cogent which has been advanced to show that the acceptance of the concessions as guilty pleas was an irregular exercise of discretion by the disciplinary committee.

Whilst this court may be wanted to conclude differently on the same facts such does not pass the test of law on appellate body upsets a trier of fact decision. Nyahondo (Supra). It is clear that the case at hand is not one about paucity of evidence but one about acting improperly but fir qualified reasons.  That does not detract from the fact that there is admission of the improper conduct.  In conclusion there is nothing to suggest that the appeal court should upset the guilty verdict returned in all the counts.  The verdicts should therefore stand.

As regards penalty the law is settled that such again is an exercise of the employers’ decision.  See Innscor  v Chimoto  SC-6-12.  If there is nothing in the penalty which makes one whist, then the appellate court is not at large to interfere. In the case at hand the main thrust of the penalty was the demotion. This was for a person who is supposedly to be the torch bearer for the SDC. The court cannot glean anything outrageous about the penalty to that extent.  There is no cogent basis for it to interfere hence the penalty should stand as meted out.

IT IS ORDERED THAT

The appeal being without merit in its entirety it be and is hereby dismissed with each party bearing own costs.

Mugiya & Muvhami Law Chambers, Appellant’s Legal Practitioners