Venganai Bvudzijena v Minister of Primary and Secondary Education & Anor

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17TH
JUDGMENT NO. LC/H/35/ 2024
CASE NO LC/H/397/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17TH JANUARY 2024 AND 1 FEBRUARY 2024

In the matter between

VENGANAI BVUDZIJENA

And

MINISTER OF PRIMARY AND SECONDARY EDUCATION

And

JUDGMENT NO. LC/H/35/ 2024 CASE NO LC/H/397/23

APPELLANT

1ST RESPONDENT

PUBLIC SERVICE COMMISSION	2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPELLANT : MS C. MASHURA ( LEGAL PRACTITIONER) FOR BOTH RESPONDENTS :MS M. PANDE (CIVIL DIVISION)

MAKAMURE J: The appellant Mr Bvudzijena ( Bvudzijena) and one Mr Panganai(Panganai /the complainant) are employed by the respondents . They are stationed at a school called Dzivaresekwa No. 5 Primary School in Harare. They also reside there in shared accommodation provided by the school.

Panganai constructed a rabbit cage and placed it on a window. Appellant was opposed to this idea .On 7th November 2021 following the two men’s opposed views on the setting up of a rabbit cage an incident took place. Only the two men were present.

After that incident Panganai made a report to the School Head, Mrs Chisipochinyi. His report as related to Mrs Chisipochinyi is as follows. On 7th November 2021 Panganai called Mrs Chisipochinyi and told her that Bvudzijena had struck him on the head and neck using an iron bar. Mrs Chisipochinyi in turn advised Panganai to make a report to the police.Panganai complied. On the Monday following the incident, she called the two men to her office. She asked the appellant what had happened . His “verbatim” response was to the effect that he had struck Panganai with an iron bar. As a result Mrs Chisipochinyi then set up a team to investigate what had happened. The investigation team confirmed the incident and Mrs Chisipochinyi charged the appellant with misconduct. One of the members of the investigating team was a Mrs Nyoka who was a Senior Teacher at the school. During the course of the investigations which were commenced on the same Monday that Mrs Chisipochinyi interviewed the appellant, Mr Bvudzijena admitted to Mrs Nyoka to having struck the complainant with an iron bar .Mrs Nyoka also observed that the complainant had sustained some injuries and his clothes were blood stained. Thereafter the appellant was charged with: ’ Unbecoming or indecorous behavior …at any time or place in any manner or circumstances likely to bring the Public Service or any part thereof into disrepute. ‘ This was in terms of S44(2) of the Public Service Regulations, Statutory Instrument 1 of 2000 as amended, as read with paragraph 7 of the First Schedule (section 2) to these regulations .

A disciplinary hearing was then conducted. The appellant told the Disciplinary Committee that Panganai placed the rabbit cage next to his (the appellant’s) window. Appellant then asked Panganai to remove the cage but he refused. Panganai then left the house and the appellant removed the cage and placed it outside the house. When Panganai returned and found out that the cage had been removed Panganai started shouting at the appellant whilst he was armed with a steel bar and swiftly approached the appellant. The appellant acting in self defence picked a steel bar which was close by. Panganai went on to aim an attack at the appellant but the appellant blocked it. As a result, the steel bar bounced back . The appellant thus told the Disciplinary Committee that he did not assault or strike the complainant but that he was acting in self defence. Appellant did not say whether or not the complainant sustained any injuries.

The complainant ‘s version of events before the Disciplinary Committee was as follows. While he was constructing a cage for his rabbits the appellant asked him what he was doing and he told the appellant that he was constructing a cage for his rabbits. The appellant then started shouting at the complainant but the complainant did not answer. Complainant

thereafter started to clean the yard and gather more equipment in order to finish the cage.When he came back he found that appellant had removed the cage. The appellant then told Panganai that he ( the appellant ) had thrown away the cage. Suddenly appellant said that he felt a “strong” metal bar land on his right shoulder . This caused him to fall down. The appellant then asked the complaint who he thought he was trying to be. Another strike was repeated and the complainant said that as a result fell unconscious. He told the Committee that he went to Parirenyatwa Hospital. The queue at Parirenyatwa Hospital was long so he later went to West End Clinic. It was suggested to him that he fought with the appellant but he denied it saying that if there had been a fight he would have fought back. He challenged the appellant if he could confirm that he fought back. The appellant did not challenge Panganai on this aspect.

The appellant told the Disciplinary Committee that it was after regaining consciousness that he went to the police and the police told him to go to the hospital. Thereafter he went to court . The court wanted a medical report. He had the medical at home report but Mr Bvudzijena forcefully took it from him and tore it to pieces while he was locking the door and preparing to go to court. This aspect of Panganai’s testimony was not challenged.

It is clear that there was no eye witness to what took place between the complainant and the appellant. So basically, it was one man’s word against another’s. However, sight must not be lost of the fact that the two made reports when the event was still fresh in their minds. The appellant’s first report was that the appellant struck him with an iron bar. The appellant’s own report too was that he stuck the complainant with an iron bar. The version by the appellant to the Disciplinary Committee to the effect that he was acting in self defence surprised both Mrs Chisipochinyi and Mrs Nyoka who got the initial report from the two men. When the complainant testified before the Disciplinary Committee he made it clear that he did not fight back when he was attacked by the appellant. The appellant did not dispute that when challenged to do so by the complainant. The appellant ‘s initial report to Mrs Chisipochinyi and Mrs Nyoka was not as dramatic as he made it when he presented it to the Disciplinary Committee.

In assessing the evidence placed before it the Disciplinary Committee made a finding among other things, that that the appellant was not a reliable witness. The Disciplinary Committee convicted the appellant. It made its recommendations to the Disciplinary Authority. The

Disciplinary Authority penalized the appellant with a fine of ten thousand Zimbabwe Dollars (ZW$10000.00) and a reprimand.

When parties appeared before the Court the argument advanced on behalf of the appellant was that there was no evidence that he was the aggressor. It was also argued that there was no independent witness to the incident. The credibility of the complainant was also attacked with Ms Mashura who appeared on behalf of the appellant arguing that Panganai was not a reliable witness asserting that he changed versions.

Ms Pande who appeared on behalf of the respondents started of by addressing the second ground of appeal which had to do with suspected institutional bias. The ground deals with comments regarding whether or not the appellant is a person of a violent nature. Ms Pande pointed out that the appellant was charged with indecorous behavior and not violence. As such Ms Pande added ,the issue of violence had no bearing on the findings. I agree. The findings in my view are concerned with what happened on the day in question and not before. Indeed, much was referred to about the appellant ‘s past behavior but he acquitted himself well but still the findings are not based on previous conduct, suspected or proved. In any event had the question of institutional bias been of concern it would have been reviewable and not appealable. Ms Pande then addressed the question of a single witness. She submitted that such evidence is obviously to be approached cautiously and that where there are any discrepancies , as long as such discrepancies did not change the complexion of the case , they were not fatal. Ms Pande referred the Court to Miller v Minister of of Pensions [1947] 2 ALLER 372 and Nduna & Anor HB43-2003. Ms Pande urged the Court to be persuaded by the findings of the Disciplinary Committee that it is the appellant who attacked Panganai and not that the appellant was acting in self defence. Ms Pande submitted that the probabilities favour that the appellant attacked Panganai and as such the appeal should be dismissed.

In reply Ms Mashura argued that there was no evidence against the appellant but presumptions. Ms Mashura argued that the Disciplinary Committee chose to believe Panganai.The Court was urged to be wary of the dangers of a single witness. Ms Mashura moved that the appeal succeeds.

The following are some of the authorities cited in support of the appellant’s case: Sv Mbulayi HB115/16; Tamba v S SC 81/91;Muzonza & Ors v S SC217/88.The following are some of the other authorities relied on by the respondents : Nyahondo v Hokonya & Others1997(2) ZLR 475 (SC);Metallon Gold Zimbabwe v Golden Million (Pvt)Ltd SC 12/15.

In the present matter it is clear that both the appellant and complainant made reports while the event was still fresh in their minds. What was reported to Mrs Chisipochinyi was corroborated by Mrs Nyoka. The complainant maintained his version of what happened when he testified before the Disciplinary Committee. On the other hand, the appellant gave a completely different version of what happened when he appeared before the Disciplinary Committee. Both Mrs Chisipochinyi and Mrs Nyoka were surprised by the appellant’s new version. The finding of the Disciplinary Committee was that the appellant was an unreliable witness.

In Chevhu Housing Co-operative Society Limited and 8 Others v Crest Breeders International (Private ) Limited and Another SC19/21 the Supreme Court held that: ‘It is well settled that an appellate court will only interfere with the factual findings of the lower court where the decision is irrational to the extent that no sensible court could have made it.’ See also Shuro v Chiuraise SC 20/19; Nyahondo v Hokonya and Others (above).

In the present matter the complainant was consistent in his statements. The record speaks for itself. On the other hand, the appellant changed versions. When regard is had to all the evidence, the version of the complainant has a ring of truth in it. It is more probable than that of the appellant. Most importantly , the Disciplinary Committee had the benefit of seeing the witnesses and assessing their demeanour which benefit this Court does not enjoy. I cannot say that the factual findings of the lower tribunal are irrational. As the authorities caution, an appellate court should be slow to interfere with the findings of a lower tribunal unless there was irrationality. I respectfully heed that warning. I have already indicated that I find no irrationality on the part of the lower tribunal. For that reason, I find that there is no merit in the first ground of appeal. I have already commented on the second ground of appeal.

In view of the foregoing there is no reason the interfere with the decision of the Disciplinary Committee. The appeal fails.

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

PUNDU AND COMPANY , APPELLANT’S LEGAL PRACTITIONERS.

CIVIL DIVISION OF THE ATTORNEY- GENERAL’S OFFICE,LEGAL PRACTIRIONERS FOR THE RESPONDENTS.