Witness Takunda Mtetwa v The Secretary, Judicial Service Commission N.O. and 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/160/2021
HARARE, 10 MAY 2021
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/160 /2021

HARARE, 10 MAY 2021			                   CASE NO. LC/H/REV/58/20

AND 08 OCTOBER 2021

In the matter between:

WITNESS TAKUNDA MTETWA							APPLICANT

versus

THE SECRETARY, JUDICIAL SERVICE COMMISSION N.O. 	1ST RESPONDENT

And

MUGOVA N.O. 								2ND RESPONDENT

And

JUDICIAL SERVICE COMMISSION 					3RD RESPONDENT

Before The Honourable Kachambwa J

For Applicant 	-   K F Chipudya

For Respondent	-   R. Matsikidze

KACHAMBWA J:

This is an opposed application for review of the proceedings of the disciplinary committee against the applicant.  The applicant is an employee of the respondent.  He is employed as a Provincial Magistrate.  He was charged of contravening the Judicial Service Regulations 2015, as read with the criminal law (Codification and Reform) Act, Chapter 9:23.  He was also charged in the alternative of contravening the same Judicial Service Regulations as read with the Magistrates Code of Ethics of 2019.  He was convicted of the main charge and consequently found not guilty of the alternative charge.  A penalty of discharge way imposed.

The Applicant has applied for review on four grounds, viz –

“1. There was procedural impropriety in 1st Respondent’s decision to apply the law in retrospect by charging Applicant in terms of an encactment that had not been promulgated when the facts giving rise to the charge occurred.

2. There was bias on 1st and 2nd Respondent as evidenced through the direction to Applicant to proceed with mitigation before a verdict had been passed.

3. Applicant was deprived of the right to a fair hearing through the failure by Respondent to avail original copy of the maintenance record before the commencement of the hearing and also in the manner witnesses were called.

4. The decision by 2nd Respondent to proceed with disciplinary proceedings without making a ruling on the objection to the charge by Applicant was grossly unreasonable.

The applicant prayed for the setting aside of the proceedings and for his reinstatement, with costs.  He did not say anything on what will become of the charges that he was facing.  The respondent opposed the application and pointed out that

The proceedings were in conformity with the tenants of natural justice, it was a fair hearing.

The proceedings were not grossly irregular and illegal

The applicant was convicted of the main charge which charge was regular the alternative charge became a none issue.

Asking for an address in mitigation is not a sign of bias but was in line with the relevant regulations

Earlier disclosure of panelists is irrelevant as any member could be asked to recuse himself/herself.

The Charge

The applicant’s argument was that the alternative charge was procedurally incompetent because the law had been promulgated after the alleged commission of the offence.  He further said that the hearing authority should have ruled on the objection before continuing with the hearing and that in any case in the judgement / outcome it

should have made a specific ruling on the illegality of the alternative charge instead of just mentioning the conviction on the main charge.

On the other hand the respondents conceded that the alternative charge was indeed improper in view of the fact that it became applicable after the misconduct had been committed.  They however said that the complaint was immaterial as the applicant had only been found guilty of the main charge.  Consequently there was an acquittal on the alternative charge.  That being so, the argument was just academic.    There was no prejudice at all.

The law is very clear that unless it is specifically mentioned any enctament does not apply retrospectively.  The law is also clear that when a person is found guilty on the main charge the alternative charge falls out.  It is the preferred position of our law that when a point in limine is raised it must be disposed of first before proceeding further.  It is also the law that in review proceedings it is not enough to point out the procedural irregularity but to show the prejudice.

The court accepts that it would have been preferable and neater for the hearing authority to have clearly pronounced its decision on the illegality of the alternative charge, before proceeding to hear the evidence on the main charge.  But nevertheless the review on this point becomes totally academic as the applicant was convicted on the main charge.  This means that the applicant’s prayer of reinstatement will not be of any useful purpose as even if he is reinstated he will be recharged and convicted on the main charge.  Therefore while he is correct on the illegality of the alternative charge there is no need to set aside the whole proceedings.  That would not be justiciable.  It is not an outcome that would save any useful purpose to either party.  Setting aside of the proceedings is more prejudicial to both parties than anything else.  It is not equitable.

BIAS / PREMEDITATED DECISION

The applicant’s argument was that the hearing committee showed bias by asking/ inviting the applicant to address in mitigation before the disciplinary authority had pronounced the verdict of guilty or otherwise.  The response to this was that this was a requirement of the procedure since the committee has to recommend on both guilty and penalty.  It was also pointed out that it is convenient in the event of a conviction.

This complaint is also largely academic.  Firstly the procedure requires that the hearing committee makes recommendations on the penalty.  This should only be done after hearing on mitigation and aggraration.  To that extent there cannot be any issue of bias.  Secondly, it is generally the practice in misconduct cases that a party is asked to address in mitigation in the event that a finding of guilty is made.  There is no issue of bias whatsoever.  It is just a shrewed approach to the process.  There can never be an issue of bias arising from the practice.

The complaint of bias and predetermination needs proof if it is made after the event.  It is not just a matter of mentioning it and perhaps listing events.  Those events must indeed be indicative of the allegations.  They must not be innocent events in the process of a hearing.  They must be events of an effort to cause the bias.  The person alleging is required to prove the allegations.  The standard of proof is higher than when one is alleging that there will be bias.  Thus in this case the applicant has a higher standard before him.  In Mupandasekwa v Green Motor Services SC 298/11 Gwaunza JA says that at page 3, paragraph 3 of the cyclostyled judgment

“In my view the question is considered differently before and after a hearing.  The adverts complained of may be taken to show bias.  Indeed I would on that basis have interdicted the official from hearing the matter.  However, after a hearing has already been conducted the situation is different…  A showing of bias is required to nullify proceedings already concluded.  It is not enough to show a possibility of bias as is the case prior to the hearing…”

In Crispen Madziyauswa vs 1. ZFC Limited and 2. Tinaye Ephraim SC 73/2015 at pages 11 -12 of the cyclostyled judgment it is said that –

“It is a trite principle that bias must not be remote or fanciful.  Bias in the sense of judicial bias has been said to mean “ a departure from the even handed justice which is required of those who occupy judicial office”.  The appellant has not alleged any factors that would show bias on the part of the Disciplinary Authority”

The appellant’s allegations falls with the class of remote and fanciful.  These are bare allegations.  The issues complained of as evidence of bias and predetermination of the outcome are innocent processes.  They cannot, by any stretch of imagination be said to be evidence of bias or predetermination of the issue.  Consequently this ground must be dismissed.

Denial of A Fair Hearing; Witnesses

The applicant alleged that the calling of a witness before the complainant had given evidence deprived him the opportunity to cross examine and probe the evidence of the complainant against that of the other witnesses.  This sequence was said to have contributed to an unfair hearing.  The court takes note of the fact that this argument is neither further fleshed in the heads of argument nor in the hearing.  No details of the said witnesses and no details of the areas that needed probing.  The appellant did not name any witness whose evidence needed further probing.

There is no rule of procedure that says that the complainant must give evidence first.  It may be desirable to have that sequence but there is no rule to it.  The applicant

has to show the areas of the evidence where he would have liked to probe.  Further he has to show that he was denied the opportunity to recall any witnesses relevant to that evidence.  It is a spurrious allegation to just say that he was deprived the opportunity.  Firstly he should have objected to the sequence.  Secondly he should have been denied the chance to recall the witnesses.  That did not happen.  Therefore this allegation is empty.  It must be dismissed.

Denial of A Fair Hearing: Provision of Record

The applicant said that he was availed the original complaint record on the date of the hearing and this deprived him the opportunity to adequately prepare for the hearing.  No further details are given of  any actual prejudice that was suffered.  Most importantly there is no comparison of the original and the copy record to show whether they differed.  There is no indication of the actual prejudice.  With all due respect this is an empty complaint.  The lack of detail is a clear sign that this is just an academic argument.  It has no place in real cases.  It must stay in the classroom.  The complaint is dismissed with the contempt that it deserves.

Denial of A Fair Hearing: Disclosure of Hearing Panel

The applicant also alleged that the disclosure of the names of the panelists on the day of the trial was prejudicial to his case.   No details of the actual prejudice are given.  This appears to be another empty allegation.  It is an academic argument again.  If the disclosure of the panel was prejudicial to his case he should show it and not just allege.  In any case not every procedural irregularity negates the outcome.

What is a Fair Hearing?

The books and the law reports are full of what a fair hearing entails.  It is a sad story that the applicant did not go into the requirements of a fair hearing and show us how this complaint fits into that.

In the case of Chatara v ZESA SC 83/01 we get an idea of what a fair hearing entails when the court says that

“As long as the employee is given a fair hearing, these is no particular form of hearing that must be adopted.  When an allegation of an employee’s misconduct has been made by an informant, a balance must be maintained between the need to protect the informant and respect his anonymity, and providing a fair hearing to the accused employee.  In Bowers on Employment at p 217 the learned author refers to the case of Khanum v Mid – Glamorgen Area Health Authority [1978] 1 RLR 215 wherein it was held that the lack of opportunity to cross – examine and to produce statements of witnesses to alleged misconduct did not render the hearing unfair….

From the authorities referred to above it is clear that at a hearing into allegations of misconduct, it is not necessary that viva voce evidence be led.  The employee concerned must obviously be shown any statements or documentary evidence that is being produced before the Disciplinary Committee but he cannot insist that the person who made the statement be called so that he can be cross- examined.”

For a fair hearing the employee only need be informed in good time of the charges, to be supplied with the evidence and to be given a chance to probe the evidence to put his own side across.  He / she needs to be informed in time of the hearing.  The calling and sequence of evidence depends on the situation.  A hearing may even not consist of viva voce evidence!  Each party is free to call and recall witnesses.  What is required is substantial justice.  The employee must be heard adequately in whatever form as the hearing may decide.   Metsola v PTC & Another 1989 (3) ZLR 147 (S) at 154 is enlightening as follows –

“The audi maxim is not a rule of fixed content but varies with the circumstances.  In its fullest extent, it may include the right to be apprised of the information and reasons underlying the impending decision; to disclosure of material document; to a public hearing and at that hearing to appear with legal representation and to examine witnesses …. The principles of natural justice are always flexible.  Thus the “right to be heard” in appropriate circumstances may be confined to the submission of written representations.  If it is not the equivalent of a ‘hearing’ as the term is ordinarily understood “

In the present case the matters that the applicant has complained of seem to pale in the distance.  They are matters that could have been easily rectified or whose effect if any at all, could have been cured by calling for a stand down or postponement to enable the applicant to put his ducks in a row if he so wished.  He was legally represented.  He himself is knowledgeable in the process.  That was not done.  Further, he has not shown or pointed out any exact prejudice that he suffered.  It appears that he is just trying to show that there were those technical shortfalls without more.

Talking of procedural falts Guvava JA in Tongai Machona v Old Mutual Limited SC 34 /21 at page 8 of the cyclostyled judgment says that –

“ The point has already been made that it is not all procedural technicalities that can vitiate disciplinary proceedings. The courts are not inclined to deciding matters on techanilities”

In casu the applicant has not made a case worth of vitiating the proceedings.  The application must be dismissed.

On the issue of costs there is no reason for them not to follow the results

THE DRAFT ORDER

The court raised the issue that the draft order did not have the alternative of damages in lieu of reinstatement and asked whether this was in order.  In hindsight this issue did not arise.  In review proceedings if the application succeeds the normal result is a return to the status quo.  It is possible though that in some circumstances a definitive final position may result.  That is not the position in this case.  Therefore the draft order is proper.

Determination

In view of the above discussions the application must fail.  It is accordingly ordered as follows –

The application be and is hereby dismissed with costs.

Antonio & Dzvetero - 		Applicant’s Legal Practitioners

Matsikidze Attorney At Law - 	Respondents’ Legal Practitioners