Tonderai Evidence Karidza v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/289/2020
HARARE, 20 OCTOBER 2020
CASE NO. LC/H/250/18
AND 4 DECEMBER 2020
---------


IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/289/2020

HARARE, 20 OCTOBER 2020 					    CASE NO. LC/H/250/18

AND 4 DECEMBER 2020

In the matter between:

TONDERAI EVIDENCE KARIDZA				APPELLANT

versus

MINISTER OF PRIMARY AND

SECONDARY EDUCATION					1ST RESPONDENT

PUBLIC SERVICE COMMISSION				2ND RESPONDENT

Before The Honourable Makamure J

For the Appellant			Mr E. E. Matika (Legal Practitioner)

For the Respondents			Ms M. Makuvire (Civil Division)

MAKAMURE J:

This is an appeal against the 1st respondents’ decision convicting the appellant of misconduct and imposing a penalty of dismissal. This was after disciplinary proceedings had been conducted against him. The following are the grounds of appeal.

“1.	The Disciplinary Authority erred at law in finding Appellant guilty of proposing love to Gracious Manguwo whereas the evidence of the alleged text messages was not availed.

2.	The Disciplinary Authority further erred in relying on the single testimony of Gracious Manguwo which was not corroborated and substantiated.

3.	The Disciplinary Authority further erred in believing the testimony of Gracious Manguwo that she used to visit the office alone yet she was not a credible/reliable witness.

4.	The Disciplinary Committee further erred at law in acting in a partial manner and asking questions which were accusing the appellant of the offense.

5.	Alternatively, the Disciplinary authority erred in imposing a penalty of discharge from the service which was excessive under the circumstances.”

The facts of the case are as follows:

The appellant was employed as a school teacher. He was charged with violations of paragraphs 4 and 7 of the 1st Schedule of the Public Service Regulations Statutory Instrument 1 of 2 000 (S.I. 1/2 000) that is :

“4.	Improper, threatening, insubordinate or discourteous behavior, including sexual harassment, during the course of duty towards any member of the Public Service or any member of the public.

7.	Unbecoming or indecorous behaviour, including the consumption of intoxicating liquor to excess or of dangerous or prohibited drugs or improper association with minors, at any time or place in any manner or circumstances likely to bring the Public Service or any part thereof into disrespect or disrepute.”

The above charges were based on the allegations that he, firstly, proposed love to a girl child who was one of his students and, secondly, that he requested the said girl child to send him her photographs. Disciplinary proceedings were conducted. Evidence was led from the student and other witnesses who included the Chairperson of the investigating committee and the School Head. At the conclusion of the hearing the Disciplinary Committee found the appellant guilty of both offences and made their recommendations to the Disciplinary Authority. The Disciplinary Authority convicted the appellant of proposing love but acquitted him on the allegation of requesting the girl’s photographs as the witnesses who gave evidence did not see the photographs in question. The Disciplinary Authority found that the student gave evidence which the appellant had failed to convincingly challenge. The Disciplinary Authority further found that the evidence of the girl was corroborated.

During the course of the hearing the girl gave evidence. The girl (who will also be referred to as “the main witness)” told the hearing committee that during school holidays she received a message of greeting. She did not know the sender so she asked the sender to identify themselves. The sender identified themselves as “its Mr Karidza”. Mr Karidza (the appellant herein) then asked for the girl’s photographs. She said she sent them. Part of her testimony is as follows and I quote:

“When schools opened Mr Karidza told me that I was his relative something which I denied. Mr Karidza later on told me that I was his wife and I asked him why he called me his wife and he said I was his (muzukuru/niece) so traditionally a niece is also a wife. Later on, during the holiday he repeated calling me his wife and I told him that I did not understand what he meant by calling me his wife. He said he wanted us to have a love affair. I told Mr Karidza that I don’t fall in love with teachers then I blocked and deleted his number.”

The main witness told the committee that she had sent appellant the photographs as requested because he was her teacher and that she complied with his request for the reason that he was her teacher. She told the committee that the appellant used to call her to his office and she would go believing that it was school business only to be asked by the appellant to have a secret love relationship with him.

The main witness told the committee that she is not the one who made the report about the matter now under consideration but that another student made a certain report and that during that report her name was mentioned. That is how the whole matter was revealed.

When the appellant cross examined the main witness he queried about the phone which she had used to communicate with him at the material time. In response the girl stated that the phone was now unusable. The appellant did not challenge the witness’ evidence that he proposed love to her. This means that this evidence of the main witness remains unchallenged. The witness told the committee that she had no reason to lie to against the appellant. Further she stated that he was actually her favourite teacher. The next witness was the girl’s cousin. She confirmed that the main witness had told her about the appellant’s advances. In fact, this witness corroborated the main witness on all material respects. With this particular witness the appellant challenged as to when she was told that he had proposed love to the girl child. She confirmed that it was during both at school and during school holidays. The next witness was the girl’s paternal aunt. She confirmed to having seen the messages to the effect that the appellant loved the girl and that he told her to keep it a secret. The messages were deleted out of fear that the father of the girl might see the messages. This witness told the committee that she counselled the girl. Once again this witness was not effectively cross – examined by the appellant.

The evidence of the Chairperson of the investigation team was to the effect that it took a while to investigate the matter as there were a number of allegations. Some had no substance but the one with respect to this girl child showed that there was substance. Finally, it was difficult for the team to contact the girl’s aunt hence the delay in finalizing the investigations. The Head of the school also gave evidence. The report that he got from the girl is consistent with what she told the committee. The appellant did not wish to cross examine the Head for the reason that the Head based his reports on what he was told. The evidence of the Head therefore was not challenged.

After assessing all the evidence, the committee made recommendations as already noted. It is clear from the record that the girl’s evidence was not challenged by the appellant. This is what the Disciplinary Authority found. The evidence was clear. It is trite that children are impressionable and are capable of fantasizing.  However, when you consider the evidence of the complainant, it was a clear narration. There was a consistent build up of a story from the appellant that is, from suggesting that he and the girl were related until he eased in the suggestion that she was his wife. The appellant’s approach was not sudden. It gives the impression that there was an intention to create a relationship with the girl which relationship had nothing to do with his duties as a teacher.

The evidence of the girl child does not sound like fantasy. The Disciplinary Authority gave the appellant the benefit of the doubt with respect to the non production of the pictures. But where the scales were tipped against the appellant, the Disciplinary Authority found against him. The appellant was able to say of the hearing:

“It was free and open, the questions were clear.”

The answers to the questions were also very clear. They pointed to one conclusion. That conclusion is that he proposed love to a minor girl child. This points to the fact that the main witness was credible. This is what the Disciplinary Authority found. This means that the first ground of appeal has no merit. The evidence of main witness was sufficiency corroborated. This means that the second ground of appeal has no merit. Equally the third ground of appeal has no merit because the main witness was a credible witness.

All that is required in Labour cases as in civil matters is proof on a balance of probabilities. In cases involving sexual impropriety, the trier of fact should always be cautious of fabrication, lack of corroboration and the dangers associated with a single witness. The credibility of a witness and their demeanor are of paramount importance. In the present case, the question of this court assessing the demeanor of witnesses is out of the question as this is an appeal court. This court therefore is guided by the findings of the lower tribunal. However, from the record, the evidence of the main witness was effectively not challenged. In Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC) the Supreme Court held that:

“in a civil case the standard of proof is never anything other than proof on a balance of probabilities. The reason for the difference in onus between Civil and Criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society on the integrity of an individual. The main concern is to do justice to the accused.”

After weighing what the witness said against what the appellant said the Disciplinary Authority found that the version of the witness was more probable than that of the appellant. After assessing the record and hearing argument, I have come to the same conclusion. The evidence was corroborated. There was no reason for fabrication and the evidence of the main witness on its own was more credible than that of the appellant.

The appellant himself having admitted that the hearing was good, he cannot assert that the Disciplinary Committee was partial in the manner that it asked questions. Having found the appellant guilty, the Disciplinary Authority exercised its discretion and imposed what it considered to be the appropriate penalty. The question of penalty in the sole discretion of the employer. (Circle Cement (Private) Limited v Chipo Nyaruwasha SC 60/03). An appeal court cannot and does not interfere unless that discretion has been improperly exercised.

In view of the foregoing and as noted earlier, all the grounds of appeal have no merit.

There is therefore no need to interfere with the findings of the Disciplinary Authority. In (1) Harold Grown (2) Portriver Invetsments (Private) Limited v (1) Energy Resources Africa Consortium (Private) Limited (2) Energy Resources Africa (Private) Limited SC 3/17 the Supreme Court stated that:

“It is only in certain limited circumstances that a superior court will be persuaded to interfere with a decision arrived at pursuant to a discretion exercised by a lower court … I do not consider that the reasoning of the learned judge is so unreasonable as to justify interference by this court”

See also Barros & Another v Chimphonda 1999 (1) ZLR 58 (S).

I respectfully associate myself with the remarks of the Supreme Court quoted above.

In the result the appeal cannot succeed. Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Mugiya & Macharaga, Appellant’s Legal Practitioners

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