Murevegwu Hwaire v The Minister of Primary & Secondary Education N.O. & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/633/14
HELD AT HARARE 12TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/633/14

HELD AT HARARE 12TH MAY 2014			CASE NO LC/H/806/13

& 26TH SEPTEMBER 2014

In the matter between:-

MUREVEGWI HWAIRE						Appellant

And

THE MINISTER OF PRIMARY & SECONDAY			Respondent

EDUCATION N.O. & ANOTHER

Before The Honourable L Kudya, Judge

For Appellant		Mr T Muchineripi (Legal Practitioner)

For Respondent		T.O. Dodo (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority where it confirmed the appellant employee’s dismissal from the civil service as a teacher on allegations of contravening the Public Service Regulations 2000.

Facts of the case are that the appellant who was in the employment of the civil service as a teacher based at Chinyika Secondary School allegedly asked a pupil one Natasha to have a love relationship with him and also commented that her breasts were sexy.  These events took place from beginning of first term 2012 to 3rd term of that same year.  He was also said to have patted Natasha inappropriately on the cheeks, exchanged vulgar words with her on one occasion and also caused her to pick up papers in the school yard during lesson time.  He was arraigned before a disciplinary committee which heard evidence from him and the complainant and her witnesses.

At the conclusion of the hearing the appellant was found not guilty on the charge of causing Natasha to pick up papers during class time as it was reasoned that such a duty could be allocated to Natasha by any other teacher hence there was nothing irregular about the paper assignment given to the appellant.  He was however found guilty in respect of the remaining 3 counts that is relating to the invitation to Natasha to have a love affair with him, patting her on the cheeks and the exchange of vulgar words which was complained about.  Consequently appellant was dismissed from employment on the basis of the 3 conviction

The basic grounds of appeal are as follows;

Disciplinary Committee erred at law by doctoring the record of proceedings as evidenced by the absence of some of the objections made by appellant’s lawyer during the hearing.  In the same light, a prior 2007 matter which related to appellant was brought into the case with the potential effect of clouding the judgment of the panellists on the matter at stake.

In the same manner committee couched the witness Natasha as

evidenced witness Natasha as evidenced by their following her to her house during the proceedings so that she could came and testify in the matter.  On the same procedural argument, the chairperson of the disciplinary committee erred by putting leading questions to the witness.  All the anomalies as set out above showed that the committee

dealt with the matter as a whole in a biased fashion and that vitiated all the proceedings this entitling appellant to success in his appeal.

Disciplinary committed erred to find appellant guilty based on inconsistent evidence from the witnesses yet the appellant’s testimony was clear that nothing of what was alleged had happened as such.

Disciplinary committee erred in that the chairperson put leading questions to the appellant and descended into the arena unnecessarily thus vitiating the proceedings.

The convictions are bad at law because 3 separate charges were preferred on the same facts thus prompting a severe penalty.

Dismissal penalty was punitive and since appellant was not given a chance to address the committee in mitigation there was no basis for the dismissal penalty.

In the result, the appellant prayed that the appeal succeeds and that his

dismissal be set aside and substituted by an order for reinstatement on full pay and benefits.  In the alternative he prayed that he be paid damages in the place of reinstatement from the date of suspension.

In response to the appeal the respondent maintained the following

Minutes were true record of what transpired as confirmed by the signature appended thereto. The 2007 matter was referred to during the hearing and it was apparent that record had no procedural irregularity tainting it.  Improper association cases are hinged on the complainant hence it was incumbent on the committee to secure attendance of the complainant when she had failed to turn up for the hearing.

Committee was right in finding appellant guilty on courts 1, 2 and 4 based on the evidence given by the complaint herself.  The verbal and written evidence thus caused the committee to return the guilty verdict.

Both the disciplinary committee and Authority exercised their powers well within the ambits of the regulations.

Count 3 on which appellant was found not guilty, was because it was within the appellant’s powers to ask the complainant to pick up the papers.

On leading questions all that chairperson did was to ask questions and the complainant proceeded to respond to that as she could and all questions asked were relevant to the hearing and they addressed pertinent grey areas in the matter.

There was no error in separating the misconduct acts as each quoted one indicated the improper conduct frowned upon by each of the quoted sectors.

Improper association between teacher and pupil is serious misconduct warranting dismissal irrespective of any mitigation given or not given by a party to the proceedings.

In the result the respondent prayed that the appeal be dismissed and

that the dismissal be upheld.  In the event of the court ruling that the matter was fraught with procedural irregularities the respondent prayed that the matter be remitted for the correction of the procedural irregularities complained about.

Before addressing the grounds of appeal it is pertinent to note that their cumulative effect is that appellant had misgivings with 2 issues on the matter.  These are, firstly that, the matter was fraught with procedural irregularities that is in the form of lumping up of charges, asking leading questions, not taking mitigation and bias emanating from committee’s calling of the complaint when the hearing had already commenced.

Secondly, the appellant took issue with the sufficiency of evidence to found his conviction and subsequent dismissal.  It is his contention that the evidence led was so porous that no tribunal acting judiciously would have returned a guilty verdict on the courts which the appellant was so convicted of.  For ease of reference the matter was thus decided based on these 2 rungs only.

Procedural Irregularities

The law relating to procedural irregularity is clear that these should not be swept away but should be put right See Nyahuma v Barclays Bank.   Air Zimbabwe v Chiku Mnensa.  In essence, the question is, if the irregularity complained about went to the root of the  case then an order directing that same be corrected would therefore be in order.

As regards this aspect, it was the respondent’s contention that the issues touching on procedure were introduced improperly as these should have been brought by way review not appeal See section 15 and 16 of Labour Court rules for the distinction between the processes.

On the other hand the appellant maintained that the procedural flaws were of such a magnitude that they qualified to be elevated points of law which are appealable.  See Sable Chemicals v Peter Easterbrook SC-18-10.   For the distinction between point of law and fact also see Muzuva v United Bottlers 1994 (1) ZLR 217.

It is also worth noting that the record is replete with evidence that the flaws complained of indeed took place.   Further to that, submissions by the respondent’s representative indicated that indeed the leading questions were put, no mitigation was taken etc but he however toned it down by arguing that such anomalies did not detract from the verdict or penalty.

Indeed as rightly put by the respondent, procedural flaws should and only come by way of review.  However where they are clearly conceded it would be an exercise in futility to dismiss the appeal on that technical ground and order that the appellant commences fresh review proceedings.

It is the court’s considered view that the flaws complained of need to be put right.  That can only be done by an order remitting the matter to be reheard in a procedurally correct fashion.  The grounds touching on procedure being merited accordingly succeed.

Sufficiency of evidence

A reading of the record of proceedings at the Disciplinary Committee level show that apart from Natasha’s say so all the testimonies of the other witnesses could not say clearly how the appellant was guilty.  Being that as it may the substantive correctness of the evidence led then is rendered academic in the wake of the finding that the matter was fraught with procedural irregularities which have to be corrected.  Suffice therefore to say that the propriety or otherwise of the decision remains to be tested once the correct procedure has been followed on the matter.

IT IS ORDERED THAT

Appeal being merited it be and hereby succeeds.

Order of the disciplinary authority dismissing the appellant is set aside and in its place the authority is mandated to have the matter heard de novo within 6 months from the of date receipt of this judgment failing which the appellant will be deemed to have been reinstated with full pay and benefits or to be paid damages in place of reinstatement in an amount agreeable by parties or quantified by court on application.

Each party bears own costs.

Muchineripi & Associates, appellant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners