Sekai Shamido v Co-Ministers of Home Affairs & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/37/2013
HELD IN HARARE, FEBRUARY 5, 2013
CASE NO. LC/H/353/2011
In the Matter Between
---------




IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/37/2013

HELD IN HARARE, FEBRUARY 5, 2013		CASE NO. LC/H/353/2011

In the Matter Between

SEKAI SHAMIDO					APPELLANT

And

CO- MINISTERS OF HOME AFFAIRS	  	1ST RESPONDENT

CHAIRMAN OF THE PUBLIC SERVICE		2nd RESPONDENT

COMMISSION

Before The Honourable E. Makamure         : President

For The Appellant     		: Ms L. Dzumbunu (Legal Practitioner)

For The Respondent  		: Ms K. Warinda (Legal Practitioner)

MAKAMURE E.,

This is an appeal in which the respondent has raised a point in limine.  In  submissions on behalf of the respondent the point was raised that the appeal is not properly before this Court.  This was submitted in view of the initial citation of one of the parties.  The respondent submitted that the “Ministry of Home Affairs” is not a competent party because it is not a legal persona. (See Gariya Safaris (Pvt) Ltd v Van Wyke 1996(2) ZLR 246(H).  I agree with that submission and the authorities cited.  It should also be noted that in terms of Section 3 of The State Liabilities Act Chapter 8:14:

“In any action or other proceedings which are instituted by virtue of section two, the plaintiff, the applicant  or the petitioner, as the case may be, may make the Minister to who the headship of the Ministry or department concerned has been assigned nominal defendant or respondent ...”  (My emphasis).

Thus the case under consideration therefore should have from the beginning cited the appropriate ministers and not the ministry as the respondent(s).  The merits of the case will now be considered since it would appear that the heads of arguments filed on behalf of the appellant cited the parties properly.

The appellant was suspended from duty in terms of the following letter:

“You Ms Sekai Shamido; E.C. No. 3004311E; Principal Immigration Officer and confirmed member of the Civil Service are hereby suspended from duty with effect from the date of receipt of this minute for a period of three months (3) in terms of Section 48(1) of the Public Service Regulations 2000 as amended.

The reasons for the suspension are:

Your continued attendance at work would be undesirable in the public interest and is likely to lead to a loss of public confidence in the Public Service.

It would also enable you to hinder with evidence relating to any alleged misconduct.

It is alleged that on 14 June 2010 while you were manning the entry counters doing the entry clearances at Chirundu Border Post and were a Shift Leader, you in your own handwriting completed two Immigration form one (IF1) forms for Mr Alex Ezekiel Nziko and Stanley Celestino Ngalawa.  You went on to endorse an entry stamp on Mr Stanley C. Ngalawa’s Tanzanian Emergency Travel Document authorising a transit visit for three (3) days.  You also did not append your signature.

The Emergency Travel Document had a Zambian Immigration exit endorsement of 12 June 2010 which was cancelled and you did not question the cancellation.  You allegedly endorsed the passport in the absence of the bearer thereby failing to ascertain the true identity and nationality of the bearer.

You are also alleged to have requested a Chigubu bus crew member to assist by transporting the bearer of the Tanzanian Travel document to Harare.  Found in possession of the document you had endorsed and the same document was discovered to be forged.  The bearer of the Tanzanian Travel Document was confirmed to be a Pakistan national not a Tanzanian.

In terms of Section 48(4) of the Public Service Regulations 2000 as amended, you shall not leave Zimbabwe without the disciplinary authority’s permission and you shall inform the disciplinary authority of any change of your address.

Further as provided for in Section 49(1) of the same Regulations; you shall not:

Attend to your work place unless directed to do so by the disciplinary authority.

Be entitled to seek alternative employment during the period of your suspension without notifying the disciplinary authority.

You shall however be entitled to a suspension allowance.

If your case is not concluded within the three (3) months period you will be required to report for duty immediately thereafter.

T. Svinurayi

Assistant Regional Immigration Officer

Head Of Office

Chirundu”

A hearing was conducted.  During the course of the hearing there was overwhelming evidence against the appellant.  For example the appellant did not question a cancellation of exit passage by the Zambian side of the border.  There was no proof that the two applicants (foreigners) mentioned in the letter of suspension were authorised to cross the border.  The documents she processed were for Tanzanians and yet the same documents were later found to be in the custody of Pakistani nationals.  This is because the appellant did not conduct the necessary checks.  She made endorsements in the absence of the bearer of the document(s).  The appellant did not check the signatures of the applicants.  These Pakistani nationals were only intercepted at Beitbridge.  It was upon investigation that the forged documents were traced to the appellant.  Clearly the evidence against appellant proved the case against her not even on a balance of probabilities, but beyond reasonable doubt.  Thus the finding of the earlier tribunal is in my view flawless.  In fact when the matter was argued, Ms Dzumbunu who appeared on behalf of the appellant focussed on sentence and not the conviction.  On the question of sentence it was submitted on behalf of the appellant that the sentence was unduly harsh.  This submission was made considering that a subordinate of the appellant, one Mabanje who was jointly charged with her was penalized with a fine.

It is not disputed that the appellant was the person responsible for the shift on the day in question.  This means that she was responsible both for her subordinate(s) and herself.  As correctly submitted on behalf of the respondent, the appellant had a high degree of blameworthiness because of the position which she held.  It must also be borne in mind that the question of penalty is the prerogative of the employer.  In the case of Circle Cement (Private) Limited v Chipo Nyawasha SC 60/03 the Supreme Court held:

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

In casu the offence itself is serious.  The employer considered it as such.  There is therefore no room for a less severe penalty to be imposed.

In view of the foregoing, I find that there is no merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Messers Chinyama and Partners, Legal Practitioners for the Appellant.

Civil Division of The Attorney General’s Office, Legal Practitioners for the Respondent.