Tobias Chigumbura v Chairman of the Disciplinary Committee N O & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/412/16
HELD AT HARARE 18 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/412/16

HELD AT HARARE 18 MAY 2016				CASE NO LC/H/837/15

& 8 JULY 2016

In the matter between:

TOBIAS CHIGUMBURA							Appellant

And

CHAIRMAN OF THE DISCPLINARY COMMITTEE  N O			Respondents

MINISTRY OF AGRICULTURE & OTHERS

Before The Honourable F C Maxwell, Judge

For Appellant 			Mr V Chivhiya (Legal Practitioner)

For Respondents		Ms S Chafungamoyo (Law Officer)

MAXWELL, J:

This is an appeal against the decision of the Disciplinary Authority dismissing appellant from employment.  Appellant was employed as a Dip Attendant in the Department of Agritex of the Ministry of Agriculture.  On 5 November 2014 misconduct charges were preferred against him.  Following a disciplinary hearing he was found guilty and was dismissed from employment.

Appellant was aggrieved and noted an appeal against the decision of the disciplinary authority.  The grounds of appeal are

The 1st respondent misdirected itself (sic) by convicting appellant in the absence of any incriminating evidence against him.  No evidence was led which proved the 1st respondent’s allegations against appellant.  The two witnesses who testified did not give any bit of incriminating evidence.  Instead, both exonerated appellant.

The 1st respondent erred in convicting appellant without clarifying which specific charge he was convicted of.  The 1st respondent admitted that it was considering the matter as a single charge but did not proceed to highlight the charge for which appellant was convicted.  This makes the conviction arbitrary at law.  Once 1st respondent admitted that it had split charges it was supposed to have specified the charge it was not preferring.

The 1st respondent erred in concluding that appellant sold fake stock cards without explaining the difference between the alleged fake cards and the genuine.  In the absence of that distinction it was improper to convict appellant of selling fake stock cards.

The 1st respondent misdirected itself by failing to accept the evidence by one Mr Chiyangwa whose evidence clearly proved that the appellant was not guilty of any wrong doing.

The 1st respondent erred in convicting appellant of receiving US$22.00 from the farmers in the absence of such evidence from the farmers concerned.  The alleged receipts serial numbers 372096, 372138 and 372139 were not authorised by appellant.  Appellant did not received (sic) any payment of money even the US$22.00 alleged.

AD SENTENCE

The sentence imposed is harsh as to induce a sense of shock.  A warning would have sufficed.

1st respondent misdirected itself in failing to give room for mitigation.  It was a great misdirection to proceed to sentence the accused without considering mitigating factors.

Respondents disputed that appellant was convicted in the absence of incriminating

evidence.  They stated that the evidence that was before the committee was overwhelming in that they had statements and the fake stock cards from the appellant.  They also stated that the charge was clear as appellant was charged with misconduct in terms of paragraph 8, 13 and 24 of the schedule (section 2) of the Public Service Regulations 2000 as amended.  Respondents also stated that the penalty imposed was the most appropriate in the circumstances.

The grounds of appeal raise issue which border on procedural aspects of the hearing as well as challenging factual issues.  It is trite that an appeal is dealt with on the record of proceedings.  The issue of the evidence that was before the Disciplinary Committee is of paramount importance considering the grounds of appeal.  The record of proceedings placed before this court does not include the witnesses statements that are referred to by both parties.  The court is therefore not in a position to assess whether or not the Disciplinary Committee was correct in placing reliance on the statements.

Appellant has challenged the conviction of selling fake stock cards.  The record of proceedings confirms appellant’s contention that there was no distinction between the alleged fake stock cards and the genuine ones.  The department personnel who were identified as the ones able to distinguish them were not called to testify.

Appellant also placed in issue the authenticity of the witness statements.  One of the witnesses disowned the statement that was ascribed to him.  In my view in such circumstances all the witnesses needed to be called to verify whether they were the authors of the statements in their name.  I am aware that in terms of Section 27 of the Civil Evidence Act [Chapter 8:01] statements are admissible as evidence.  However the circumstances of this case dictated that the persons alleged to have made the statements be called as witnesses.  The record of proceedings does not give any reason why they were not called to testify.  Counsel for appellant made a specific request in the hearing a quo for the witnesses to be called which was not acceded to.

In addition to the omission to avail the witness to testify, the record of proceedings makes reference to stock cards serial numbers 372096, 372138 and 372139.  The stock cards are not part of the record.  The record of proceedings does not show that the authenticity of the serial numbers was considered.  Appellant was convicted of misappropriating $22 from these serial numbers’ transactions.  It is not clear if the receipts were genuine or fake.

Appellant’s criticism of the whole process therefore has merit.  However it is trite that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.  See Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Another SC 89/04.  The disciplinary proceedings were flawed.  The justice of this case requires that the matter be heard de novo in the proper manner.  In the Air Zimbabwe (Pvt) Ltd case cited above, it was stated that remitting a matter for re-hearing is a power that is inherently associated with the power to hear an appeal.  It is important that

the witnesses testify and their written statements be placed on record

the distinction between the fake stock cards and the genuine ones be placed on record

the receipts that are made reference to be  placed on record and that evidence be led as to whether they are genuine or not.

Accordingly the following order is appropriate;

The appeal be and is hereby upheld with costs.

The disciplinary proceedings and the determination of the disciplinary authority be and are hereby set aside.

The matter be and is hereby remitted for a re-hearing before a different disciplinary committee.

Appellant will revert to the position he was in prior to the disciplinary proceedings.

Nyawo, Zuze Legal Practice, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners