Tom Dickden v Registrar General of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/100/2016
HARARE, 4 FEBRUARY 2016 &
4 MARCH 2016
CASE NO LC/H/892/2015
---------


IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/100/2016

HARARE, 4 FEBRUARY 2016 &			                 CASE NO LC/H/892/2015

4 MARCH 2016

In the matter between

TOM DICKDEN								APPELLANT

Versus

REGISTRAR GENERAL OF ZIMBABWE				RESPONDENT

Before the Honourable L M Murasi J

For the Appellant	D C Ngwerume (Legal Practitioner)

For the Respondent	C Chopamba (Legal Practitioner)

MURASI J:

At the commencement of the proceedings Mr Chopamba sought to apply for a postponement as the respondent had not formally filed a response to the Notice of Appeal. He stated that the reason for late filing of the response was that the respondent had not timeously received the requisite authorisation to brief-out Counsel from the Attorney General’s Office. He stated that it was a requirement that written approval be given by that office before instructing a legal practitioner. Mr Chopamba, further submitted that the application for condonation for late filing of the response could not be done in time as the Registrar General, who was to depose to the Founding Affidavit, was out of the country at the time. He applied for the upliftment of the bar in the circumstances.

Mr Ngwerume for the appellant vehemently opposed the application stating that the explanation tendered was not reasonable in the circumstances. He stated that the respondent was served with the notice of appeal in October 2015 and had not complied with the Rules of the Court. It was further submitted that the respondent had only acted at the eleventh hour and as such the application could not be condoned in the circumstances.

The court declined to grant the application for the following reasons. The record shows that the Notice of Appeal was served on the respondent on 6 October 2015. There is acknowledgment to this effect. In terms of the Rules the respondent was supposed to file the notice of response within fourteen days. This was not done. A further notice of appeal was served on the Civil Division of the Attorney General’s Office on 17 November 2015. No response was filed by the respondent. The respondent was only jolted into action when the notice of set down was served on the Civil Division on 25 January 2016. That is when the respondent hurriedly filed a purported Notice of Response on 29 January 2016. There was no application for condonation for late filing of the Response accompanying the purported “Response”. The respondent’s Counsel has stated that this was because of the absence of the requisite authorisation and that the Registrar General was out of the country. The respondent’s Counsel stated that he received instructions from the respondent’s Human Resources Manager who was unable to depose to an affidavit. The court inquired of the respondent’s Counsel as to how the person could be in a position to brief and instruct Counsel and not be in a position to depose to an affidavit.  He was not able to explain.

The court is of the view that there was a flagrant disregard of the Rules of Court. The explanation tendered is not reasonable and therefore not acceptable. In fact the explanation tendered borders on a deliberate insult on the intelligence of the court. The record shows that the office wherefrom the authorisation was supposed to come was also served with the Notice of Appeal. Nothing happened after the two offices became aware of the appeal pending before the Court. The court is therefore not in a position to uplift the bar and the respondent remains barred.

As far as the merits of the case are concerned, Mr Ngwerume submitted that the hearing committee erred in failing to consider that the authority to process a passport was issued by the Provincial Registrar or lawful deputy. It was further submitted that thereafter the other subordinates would handle the application. Mr Ngwerume stated that the appellant was the fourth (4th) person in this chain who handled such an application after the bio-image process had been completed. It was further submitted that the respondent had failed to produce a proper audit which gave the details as to who did what in the computer system. It was further argued that the hearing committee did not consider the appellant’s defence when making its ruling. It was further argued that there were no cogent reasons given by the hearing committee as to why it had found the appellant guilty of the offence charged.

Precedent shows that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection. Where a lower court or tribunal acts upon a wrong principle, considers irrelevant matters, mistakes the facts or does not take into account relevant considerations, an appellate court may interfer with such decision. (See Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)). It is therefore pertinent to consider the contents of the record of the hearing committee in the circumstances.

I will commence with the evidence of one Goba who was the District Registrar. He is one of those who would be authorised by the Provincial Registrar to “vet” applicants before the passports were processed. He states this at page 16 of the record.

“A senior officer vets the documents in the morning. For people in queues, the officer looks at age on the documents and whether it tallies with the person holding them, checks citizenship status and give these people numbers. You can only apply when one is in the population table. The Provincial Registrar or the Registrar does the vetting.”

Further, Mr Goba made the following replies to questions:

“NGWERUME:	When this photograph was taken and when Ellen did the other process the client had not got to Tom? The I D number, first name, date of birth was already in the system.

GOBA:	Yes I agree that the information was already in the system.

NGWERUME:	Can you confirm that the client was served by Ellen before going to the respondent (Tom)?

GOBA:	The client should go to bio enrolment for image capturing.

NGWERUME:	Was it possible for anyone to create the information before bio enrolment?

GOBA:	Yes I agree.”

The evidence of the District Registrar shows that there was a chain of people who were responsible for processing the applications and they were involved at various stages. His evidence showed that the appellant would act on information already captured in the system. He was unable to alter that information materially. The District Registrar’s evidence is telling as far as involvement of other persons is concerned. He states that it was possible for anyone to create the information before bio enrolment. This would mean that information about a passport applicant could be entered by some other person before it got to the appellant.

The evidence of the IT expert, one Chimuriwo seemed colourless. He was not able to give categorical answers to questions given to him. However he gives the following telling evidence:

“The source of input or record was the ID and surname that came from Unit 200. For Tom he was not the one who created it. It was initially created at the Marriages section.”

Mr Chimuriwo’s evidence was non-committal is certain respects. For example, the following evidence comes from page 25 of the record:

“NGWERUME:	Do you agree with me that all the information for Mutasha was in the system when Ellen did her part?

CHIMURIWO:	I am not sure.”

This was the witness who was supposed to inform the committee what actually transpired based on records extracted from the computer system. In this regard he was unable to assist the hearing committee.

I now come to the evidence of Ellen who was the officer who did the bio enrolment before forwarding the application to the appellant. The following is what she said in answer to questions:

“NGWERUME:	Is it possible to produce the form (shown to her) like this if the details of that person were not in the system?

ELLEN:	No, that is impossible.

NGWERUME:	Is it possible for another officer like TOM to add more information on the form after the photos have been taken?

ELLEN:	No.

DADI:	Is it possible to process an application at the bio enrolment without the applicant’s information in the computer system?

ELLEN:	The system would reject.”

It is therefore difficult to grasp where the hearing committee found the evidence showing that it was the appellant who entered the data into the computer. Witnesses’ evidence do not show that it was the appellant. The respondent was supposed to adduce evidence to prove on a balance of probability that it was the appellant who must have entered the data in the computer. Precedent has held that evidence does not have to be accepted merely because it is un-contradicted. What is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case. KOTZE JA had this to say in West Rand Estates Limited v New Zealand Insurances Co Ltd 1925 AD 245 @ 263:

“It is not a mere conjecture or slight probability that will suffice. The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it. It must be of sufficient weight to throw the onus on the other side to rebut it.”

It is my view that the evidence adduced at the hearing did not prove on a balance of probabilities that the appellant was guilty of the charges levelled against him. The evidence cited elsewhere in the judgment clearly shows otherwise.

In the result the appeal must be allowed. The court makes the following order:

The appeal, being with merit, is allowed.

The decision of the disciplinary committee finding the appellant guilty culminating in his dismissal be and is hereby set aside and substituted with “the respondent is found not guilty.”

The respondent is ordered to reinstate the appellant to his former employment without loss of salary and benefits with effect from the date of dismissal.

If reinstatement is no longer possible the parties are to agree on damages in lieu of such reinstatement failure of which either party may approach the court for quantification.

That each party bears its own costs.

Nyandoro & Mukwena, appellant’s legal practitioners

Thodhlanga & Associates, respondent’s legal practitioners