Rudo Mutseyekwa v Public Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/33/13
MUTARE 19th SEPTEMBER, 2013
CASE NO
JUDGMENT NO LC/MC/33/13
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MC/33/13

MUTARE 19th SEPTEMBER, 2013			        CASE NO LC/MC/26/12

AND 25TH OCTOBER, 2013

RUDO MUTSEYEKWA							Appellant

PUBLIC SERVICE COMMISSION 						1st Respondent

MINISTER OF HOME AFFAIRS						2nd Respondent

Before The Honourable G Musariri, Judge:

For Appellant:		Mr. H. Tanaya, Attorney

For Respondents:		Mr. M. Chimombe, Officer

MUSARIRI, G:

Appellant was dismissed from employment by 2nd Respondent on grounds of misconduct.  She sought a review of the dismissal.  1st  Respondent reviewed but confirmed her dismissal from employment.  She then appealed to this Court.  Her grounds of appeal were two-fold.  They were set out as follows,

“1.	The Public Service Commission’s confirmation of the Disciplinary Authority’s determination that Appellant is guilty of misconduct is grossly erroneous in law as it was not based on any credible and acceptable evidence.  The Appellant’s “Request for Review by the Commission” and the Commission’s ‘Confirmation Letter” are hereto attached as Annexure B and C respectively.

2.	The Public Service Commission grossly erred in law in confirming the decision of the Disciplinary Authority without giving reasons for so doing.”

At the onset of oral arguments, Appellant abandoned the 2nd ground.  That left the 1st ground as the sole ground of appeal.  The appeal then focused on whether the proofs supported the verdict rendered.

Appellant worked for Respondent as a Processing Officer in its Passport Office at Mutare.  In the course of her duties she processed an application in the name of “W. Makuni”.  This resulted in the issuance of a passport in the name of Makuni.  A few years later the real McCoy, i.e. Walter Makuni, applied for a passport.  This triggered investigations which showed that the initial application had been initiated by a rogue known as Hardlife Dera.  Dera deposed to an affidavit.  A copy is filed of record.  Therein Dera confessed to certain shenanigans involving Makuni’s identity particulars.  Using copies of Makuni’s documents, he engaged a dealer going by the moniker “Moto Moto” to obtain the passport on his behalf.  The dealer was duly paid a princely sum of US$80,00 for his “services”.  Respondents relied solely on Dera’s affidavit.  They argued that since Appellant processed the application she must have colluded with Dera and/or his dealer.  She was required to cross-check the copies of the supporting documents with the originals.  The fact that she didn’t, so they argued, showed that she was a willing accomplice to the scam.

Appellant insisted that the person she dealt with was the person with the photo and particulars on the documents presented.  In my view that appears consistent with Dera’s affidavit.  The relevant portion confessed thus,

“...advised me to use Walter’s I.D. copy to synthesise I.D. with my own picture so we used one of my....photos and imposed it on the I.D. copy, which then we ... copied again.  We then used that document to facilitate ... processing of the passport.” (The underlining for emphasis is mine.)

So it appears that Appellant was presented with a fake I.D. with Dera’s photo but with the particulars of Makuni.  Anybody in her position could have easily been fooled into thinking that it was Makuni making the application.  That Dera claims he did not appear in person must be viewed with a pinch of salt.  Dera was a rogue engaged in a fraudulent activity.  His word can only be credited where it is corroborated by independent sources.  On that score it is not corroborated.  I therefore give the benefit of doubt to Appellant when she said that the person who appeared before her was the person with the photo on the I.D. presented.  In view of the position I have taken, it follows that the case against her was not supported by credible evidence, as argued on Appellant’s behalf.  Thus her dismissal was unfounded.

Wherefore it is ordered that,

The appeal is hereby allowed;

The dismissal of Appellant by 2nd Respondent is set aside;

The confirmation of the dismissal by 1st Respondent is set aside;

Respondents shall reinstate Appellant without loss of salary and benefits failing which Respondents shall pay Appellant damages for loss of employment in a sum either,

agreed by the parties or

assessed by this Court.

............................................

G. MUSARIRI

JUDGE