Xavier Maramba v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/126/2016
HARARE, 4 AUGUST 2015
CASE NO. LC/H/342/15
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/126/2016

HARARE, 4 AUGUST 2015			CASE NO. LC/H/342/15

AND 4 MARCH 2016

In the matter between:-

XAVIER MARAMBA					Appellant

And

MINISTER OF PRIMARY AND				1st Respondent

SECONDARY EDUCATION

And

PUBLIC SERVICE COMMISSION			2nd Respondent

Before Honourable L. Kudya, Judge

For Appellant		C Mahlangu (Legal Practitioner)

For Respondent	K Warinda (Civil Division)

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which confirmed appellant’s guilt and dismissed him from work following allegations of fondling a pupil’s breast in contravention of the respondent’s regulations.

The appeal is based mainly on 3 points.  These are that, the respondent authority found appellant guilty on insufficient evidence, failed to determine an interim application for recusal which had been made before the committee and that if appellant’s guilt was well founded he was entitled to a penalty lesser than dismissal.

A reading of the 2nd ground which talks about ruling on preliminary point is a point of law which can be taken at any time.  It is pertinent to note that before even before delving into the merits of the appeal, the record of proceedings at the disciplinary committee level is replete with evidence that appellant sought a recusal of the committee following what he concluded was improper communication between the committee and the complainant and her witnesses.

This happened after the matter had been adjourned to be continued at a later date.  That the committee indeed communicated with complainant and her party in absence of the other party and his counsel is without doubt if the record of proceedings is anything to go by.  What may only differ are the reasons which are proffered for such a meeting/discussion.  It is also apparent that the objection was made but was not ruled on.

As appellant correctly noted per case of Haywood Investments v Zakeyo SC 32/13 that was a serious misdirection which vitiated the proceedings.  It is also noteworthy per Nyahuma v Barclays Bank 2000 (2) ZLR 445 (S) that where such errors occur remedy is not reinstatement but a redress of the procedural irregularity.  It is therefore the court’s view that it would be an exercise in futility to even deal with the rest of the appeal grounds where it is apparent that for want of a decision on the preliminary point the committee fell short of its expectations vis affording the appellant a fair hearing.  In the circumstances the appeal should succeed to the extant of the setting aside of the dismissal order and a remittal of the matter for a determination denovo in a procedurally correct manner.

IT IS ORDERED THAT

Appeal being with merit on account of the disciplinary committee’s failure to rule on a point in limine raised by the appellant the appeal be and is hereby allowed.

The order dismissing appellant is set aside and in its place respondent is ordered to deal with the matter denovo in a procedurally correct fashion within 3 months from date of receipt of this judgment, failing which the appellant will be deemed to have been reinstated with full pay and benefits or alternatively to be paid damages in place of reinstatement.

Each party to bear own costs.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners