Simon Mupfurutsa v Minister of Education, Sports and Culture

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/66/2013
HELD AT HARARE ON 27 FEBRUARY, 2013                CASE NO. LC/ H/111/2013
In the matter between


SIMON MUPFURUTSA                                         –       Applicant
And

MINISTER OF EDUCATION, SPORTS AND CULTURE –                      Respondent




Before The Honourable L. Matanda-Moyo, President
For Applicant      - Mr K. Maeresera (Legal Practitioner)
For Respondent     - Ms Hove with Mr Kainga (Civil Division)


MATANDA-MOYO, L.

      This is an application stay of execution of a decision to transfer applicant

from Nyamakate Primary School to Godzi Primary, following applicant’s

conviction on the following charges;

   1) Defying the Acting Head, Mr Bodzo’s instruction of 16 January 2012

      directing applicant to attend to his class. Instead applicant attended a

      parents Annual General Meeting.

   2) Defying the Acting Head, Mr Bodzo’s instruction to leave the Annual

      General Meeting, which meeting the Applicant disrupted by interjecting

      resulting in parents walking out of the meeting.

   3) Undermining the school administration by trying to influence prisoners

      on community service to make false allegations against the Acting Head,

      Mrs Musona and the School Development Committee.
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   The transfer is to take effect from 1 March 2013. The decision to transfer

Applicant was made on 25 January 2013 and was served on Applicant on 30

January 2013. Applicant noted an appeal with this court on 14 February 2013

and this application was filed on 21 February 2013 as an urgent application. I

agree that the matter is urgent considering that the first of March is a few days

away. I am also satisfied that Applicant did not create the urgency and that he

would suffer irreparable harm if the matter is not determined now.



For an application of such a nature to succeed Applicant must show the

following;

   1) Prospects of success on appeal

   2) Whether the appeal has been noted without the bona fide intention of

      seeking to reverse the judgment.

   3) Prejudice or harm to be suffered by Applicant should the stay be refused.



PROSPECTS OF SUCCESS ON APPEAL.

      Applicant submitted that his chances of success on the appeal are good.

Applicant argued that he was convicted without evidence.          There was no

evidence on a balance of probabilities that Applicant defied the Acting Head’s

instructions to attend to his class. I have perused the evidence relied upon by

the disciplinary committee. There was the evidence of the Acting Head to the

effect that he introduced all teachers to the meeting of the 16 th January 2012

and instructed the teachers to attend to their classes. All teachers including

Applicant left the meeting. It is common cause that Applicant returned to the

meeting at 12:30 pm during break time. It is not in dispute that Applicant’s

three children were attending the same school. Applicant was therefore also a


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parent at the school. The issue for determination by the appeal court is whether

Applicant could attend the meeting as a parent. It is likely that the appeal court

may find in favour of Applicant. The evidence of the Acting Head on page 87

does not suggest that Applicant defied his instruction not to attend the meeting.

Initially after introductions the teachers were asked to attend to their classes,

which they did. At break time Applicant came back and the Acting Head called

him outside.




On page 87on the 9th and 11th lines it reads;
      “(And Mr Mupfurutsa also went back)?
      He did not.”



      From the evidence Applicant came back to the meeting at break time. I

am satisfied that the appeal court may find in favour of the Applicant on the first

ground of appeal.



      Applicant was also convicted of defying the Acting Head’s instructions to

leave the Annual General Meeting. It is accepted that Applicant went back to

the meeting at 12:30 pm. The Acting Head told him to leave the meeting. From

the evidence on file the Applicant defied this instruction and went back to the

meeting and started recording. Witnesses testified to that effect. It seems to

me that there is evidence on a balance of probabilities justifying the conviction.

I am convinced that the appeal court may find in favour of the Respondent on

this ground of appeal.




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      The    Applicant   was    also   convicted   of   undermining     the   school

administration by trying to influence prisoners on community service to make

false allegations against the Acting Deputy Head, Ms Musona and the School

Development Committee. From the record evidence was called from the Acting

Deputy Head and one of the prisoners. There is evidence that Applicant tried to

influence such prisoners to make false allegations against the Acting Deputy

Head. It is likely that the appeal court may confirm the convictions.



             Applicant confirmed that there is animosity between himself and

the parents. At one time the parents withdrew their children from the school to

try and force the exit of Applicant from the School. Such actions prejudice the

children at a time when the failure rate at ‘O’ level has risen so high. It is not in

the interest of all parties that there be such disruptions at the school.



             Applicant has been transferred to a school in the same district.

Applicant has not shown any irreparable harm that would be suffered by him

should he transfer to the school. If Applicant wins the appeal his transfer costs

would be borne by the Respondent. The issue of there having no electricity at

Godzi School is neither here nor there. I am satisfied that Applicant has not

proved that he would suffer irreparable harm due to the transfer.



      I agree with Applicant’s submissions that the parents should not be

allowed to be a law unto themselves. It is also true that there is need for

harmony between teachers and parents.




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      The balance of convenience does not favour the granting of the interim

relief sought. The granting of the relief sought may cause unrest at the school

as there is clear animosity between the parents and the teacher in question.



      In the result I am satisfied that Applicant’s chances of success on the

other grounds of appeal are not good. I am unable to grant the relief sought.



Accordingly the application for stay of execution fails and is dismissed with no

order as to costs.




Maeresera and Partners– Appellant’s Legal Practitioners




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