Glademan Mbira v Civil Service Commission

### Preamble
Judgment No. SC 32/21
1
Civil Appeal No. SC 1057/17
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DISTRIBUBLE:       (30)

GLADEMAN     MBIRA

v

CIVIL     SERVICE     COMMISSION

SUPREME COURT OF ZIMBABWE

MAKARAU JA, HLATSHWAYO JA & BERE JA

HARARE: 5 JULY 2018 & 13 MAY 2021

L. Madhuku, for appellant

L.T. Muradzikwa, for respondent

MAKARAU JA: 	The delay in handing down this judgment is regretted. This is more so in light of the fact that this dispute is a labour matter which has remained unresolved since 2016.

The matter is an appeal against the decision of the Labour Court handed down on 28 July 2017. The order a quo dismissed with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Background

The appellant was employed as a Pensions Assistant in the Pensions Agency, a division in the Secretariat of the respondent. The complainant was a client of the Agency. In September 2015, the complainant called in to inquire why payments by a pensioner for the maintenance of her minor child had ceased. The appellant assisted her. He discovered that the payments had ceased because the pensioner was now deceased. He disclosed the death of the pensioner to the complainant. Thereafter he retrieved a copy of the deceased’s death certificate from another section of the Agency, which he gave over to the client.

Convinced that he had thereby committed acts of misconduct, the respondent charged the appellant with misconduct in terms of s 43(2)(b) of the Public Service Commission Regulation 2007 as read with paras 12 and 20 of the Third Schedule to the Regulations.

I pause momentarily  to note in passing that s 43(2)(b) of the regulations does not create an offence but lays out the steps that a disciplinary authority must observe in the event that it wishes to charge a member of the respondent with misconduct. The section should not have been cited as the principal part or any part for that matter of the charges. Whilst nothing turns on this, I merely highlight it as one of the many lapses that occurred in this matter.

The charges against the appellant were based on two distinct allegations. These were firstly, that the appellant had disclosed classified or confidential information without authority or improperly and secondly, that he had acted in a manner “inconsistent with or prejudicial to the discharge of official duties, including abuse of office”.

The appellant appeared before a disciplinary committee, (“the Committee”), for a hearing.

Following the hearing, the respondent found the appellant guilty of the two acts of misconduct and duly dismissed him from employment. In addition, it ordered that the period the appellant was on suspension be treated as leave without pay.

A request to the respondent to review the determination of the Committee and the penalty was unsuccessful. The appellant appealed to the court a quo. As stated above, the court a quo in turn dismissed the appeal with an appropriate order of costs.

The appeal

Before us, the appellant raised two grounds of appeal in the alternative. He argued firstly that the court a quo erred in law in not finding that the legal requirements necessary for a conviction in respect of both acts of misconduct had not been established. In particular, the appellant challenged the sufficiency of the evidence upon which he was convicted by the Committee. Secondly and in the alternative, the appellant argued that the court erred in law in not finding that the disciplinary authority acted irrationally and outside the scope of s 50(1) of SI 162/2017 in imposing the penalty of dismissal in the face of overwhelming mitigatory factors.

The issues

The issues that fall for determination in this appeal are the same two issues that fell for determination before the court a quo. They are firstly, whether there was sufficient and reliable evidence before the Committee that the appellant had committed the acts of misconduct with which he was charged and secondly, whether the penalty imposed by the respondent was appropriate.

The law

The law applicable in the determination of this appeal is trite.  It is the bedrock of all civil trials in this and other sister jurisdictions which have adopted adversarial trials as the main formal dispute resolution mechanism. That law places the burden to prove any allegation on him or her who makes the allegation. Thus, the general proposition has always been that he who asserts before the court must prove.

So trite is the general proposition at law that it has been repeated in many cases and in various formulations without any reference to authority. None is needed. Thus in Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S), which is better known for its pronouncement on the presumption of constitutionality of laws rather than the mundane proposition that is under discussion in casu, GEORGES CJ, without referring to any authority expanded the ambit of the general proposition at 382(H) to the effect that:

“Because the person alleging unconstitutionality must establish it, a burden may rest on that person to establish factually that an act does not fall within the ambit of constitutionality.”

It is a further trite position at law that the burden of proof in civil proceedings is discharged on a balance of probabilities. Disciplinary proceedings such as in casu, are as civil suits. Thus, in disciplinary proceedings, unless the allegation is admitted, he who asserts must prove on a balance of probabilities but prove he must.

Finally, at the end of the contest, the adjudicating authority must be satisfied generally, that cogent and reliable evidence has been adduced in favour of the allegations making up the claim. It then weighs this evidence against the evidence adduced in favour of the defendant to establish where the balance of probabilities lies. The upshot of all this is that where the evidence is inconclusive or where there is no evidence at all, the party who made the allegations before the court must fail. (See Norton District Tobacco Warehouse (Pvt) Ltd v SKEA [1962 (1)] SA 709 (SR)).

In an appeal challenging the sufficiency of evidence in support of any fact, the appellate tribunal must perforce analyse who had the burden of proof a quo, what evidence they adduced to prove the allegations they were making, whether the evidence was reliable and, finally, how such evidence tested on a balance of probabilities against the evidence adduced in rebuttal.

This is all elementary and calls for no authority.

Analysis

The decision a quo.

The first issue that was before the court a quo called upon it to undertake the elementary steps that I have outlined above. Put differently, the issue called upon the court a quo to assess the nature and quality of the evidence that was adduced before the respondent, and more particularly, the sufficiency and quality of the evidence upon which the appellant was convicted on both charges.

It did not.

A reading of the judgment a quo reveals that instead, the court proceeded to determine whether or not on the facts alleged by the respondent, the decision to dismiss the appellant was justified.  In its view, such a decision was justified because the complainant was not an appropriate person to whom the death of the pensioner could be disclosed. In its words:

“It was also argued on behalf of the respondent that all its files and document are classified and confidential. In this case the said Ms Marere, the complainant was neither a close relative nor a spouse of the deceased. She had no right to get the information about the deceased in the manner that she did. By releasing the certificate in the manner that he did, the applicant acted in breach of the security protocols of the respondent.

Section 4 of the Official Secrets Act [Chapter 11:09] provides among other things, for the prohibition of releasing information including a “document” to a person for whom it is not meant. The respondent’s position is that the release of the death certificate to Ms Marere was inappropriate and in violation of the Official Secrets Act. I agree.”

The court a quo was sitting as an appellate tribunal before whom the sufficiency of the evidence before the Committee had been challenged. By failing to make a finding that the respondent had proved all the allegations that it had made against the appellant on a balance of probabilities, the court fell into grave error. It failed to address the pivotal issue that was before it.  It misdirected itself.

Had the court a quo addressed the issues that were before it, it would have found that there was no reliable evidence supporting the first charge and that there was no evidence at all on the second charge.

At this stage, it is necessary that I advert to the proceedings before the Committee in some detail.

The proceedings before the Committee

Before I proceed any further, there is one issue that has caused me some disquiet and upon which I must comment.

A reading of the record of proceedings before the Committee shows that after the appellant had denied both charges, there was no discernible structure or sequence to the hearing that then ensued.  Whilst readily accepting that disciplinary proceedings are to be conducted with minimum formality, there is a limit beyond which the informality cannot go.

The audi alteram partem rule demands that each party to a dispute be given the right to be heard, fully. Thus, the tribunal conducting a hearing, even informally, is obliged to  allow each party to orally present its case in full before questions are put to the witnesses to test the reliability of the evidence adduced. In casu, the “informality” of the proceedings allowed all parties to speak randomly throughput the proceedings with questions, answers and interjections coming from the Committee, the respondent’s witnesses, the appellant’s legal practitioner and the appellant himself indiscriminately.   It was a free for all. As a result for instance, some questions that were put to the respondent’s witness by the appellant’s legal practitioner and by the appellant himself were answered by the Committee.

To constitute a fair hearing before any court or tribunal the rules of natural justice must always be observed notwithstanding the informality of the proceedings. Cardinally, all proceedings must be conducted in such a manner that the court or tribunal, as umpire,  never descends into the field of play but remains and is seen to remain impartial at all times.  Even where informality is permissible, the court or tribunal cannot give evidence for either of the parties as extensively happened in casu.

On the basis of the above I could set aside the proceedings as being grossly irregular. I do not do so because the issue was not canvassed during the hearing of the appeal. In view of the delays already occasioned in the matter, it is not desirable or necessary that I call upon the parties to address the court on the point as the appeal can be determined on another basis.

I return to the nature and quality of the evidence that was adduced in favour of the respondent before the Committee.

The first charge against the appellant was based on para 12 of the Regulations.  Paragraph 12 reads:

“Unauthorised or improper disclosure of classified or confidential information.”

The respondent alleged that between the period 17 and 18 September 2015, the appellant unlawfully retrieved a filed copy of a certified death certificate of a pensioner and gave it to the complainant, a member of the public who had visited the Pensions Agency with the sole intention of inquiring why a garnishee order for her child had been stopped. It was further alleged that the appellant did not seek the authority of his supervisor and in the process compromised the security of the information.

The sting of the first charge against the appellant is that he acted without authority.

It is common cause the “information” that the appellant allegedly disclosed without authority was the death certificate. The disclosure of the death of the pensioner itself to the complainant appears to have attracted no attention whatsoever and was not an issue. In the circumstances, there is scope to believe the evidence of the appellant that he disclosed the death of the pensioner and confirmed it with the death certificate. Quite logically, he could not possibly have “disclosed” the death certificate in isolation or in “vacuo”, for the purposes of committing the act of misconduct.

I however do not determine the matter on this basis.

I will assume without determining that retrieving a death certificate from another section of the Agency without authority constitutes an act of misconduct under the Public Service Commission Regulations 2007.

The appellant pleaded that the authority of his supervisor was not required or necessary for him to retrieve a copy of the death certificate from the appropriate file for the benefit of the inquiring client. On this basis, he denied that what he had done amounted to an act of misconduct.

The disputed fact that was before the Committee and on which evidence in favour of the respondent was required on a balance of probabilities was therefore whether such authority was required.

Evidence on this point was led from one Mr Taziva who was the appellant’s immediate supervisor. Taziva’s testimony was to the effect that officers at the level of the appellant could disclose information to clients after seeking approval from their superiors. When the appellant’s legal practitioner asked him where this was written down, it was the Committee which answered. Its response was that in the Agency, it was standard procedure that no information was to be disclosed to unauthorised persons. When the appellant interjected and asked whether this procedure was standard by virtue of being written down or a verbal instruction, the Committee again answered and retorted quite irrelevantly in my view, that all officers were aware of the Official Secrets Act. The record indicates that the Committee then proceeded to show the appellant’s legal practitioner the outer part of their files on which were written the words: “the content of this file must not be shown to any unauthorised person.”

The above constitutes the totality of the evidence led on behalf of the respondent on the first charge. It was on this evidence that the appellant was convicted.

I again note that there is a world of a difference between disclosing information without authority and disclosing information to unauthorised persons.  The difference appears to have been lost to the Committee and to the court a quo. The appellant was charged with the former and the Committee led evidence on the latter. The court a quo was satisfied that the appellant was guilty of the latter.

The evidence led on behalf of the respondent from Taziva that the appellant needed the authority of his supervisors to release the death certificate remained untested. It was not subjected to cross-examination as the two questions that were put to the witness by the appellant and his legal practitioner respectively, were all answered by the Committee itself. In the circumstances, the evidence by the appellant that no such authority was necessary was not suitably displaced. The balance of probabilities did not tip in favour of the respondent.

I turn to the second allegation.

The sting of the allegation was that the appellant did not refer the complainant to the Death of a Pensioner Section. He contended that he did.

Part of his written response reads:

“I did refer her to the Death of a Pensioner Section. The aspects I dealt with fell within the scope of my duties.”

No evidence was led at all on behalf of the respondent to refute the evidence by the appellant that he did refer the complainant to the appropriate section of the Agency. The complainant, in her evidence before the Committee, did not deny this. She was not asked on the point by any of the parties.

To sustain the charge against the appellant, it was necessary that evidence be led on behalf of the respondent showing that the appellant did not refer the complainant to the appropriate section. In the absence of such evidence, there was therefore no basis whatsoever for finding the appellant guilty of the second allegation.

As indicated above, the court a quo did not address its mind to the issue whether or not there was any cogent evidence in support of the second charge. It remained fixated on the complainant and found that:

“If Marere did not fall under the group of persons defined as “spouse” or “close relative”, then it was inappropriate for the appellant to disclose such information to her without the requisite authority. It is accepted that Marere may have been entitled to know why the garnishee order had ceased…… However in an effort to answer that burning question, the appellant ought to have referred Marere to the appropriate section. It is common cause that there is a section which deals with deceased persons. Appellant did not work in that section. He was obliged to refer the said Marere to the appropriate section.”

Did he not?

Disposition

In view of my findings above, the appeal must be allowed.

I therefore set aside the decision of the court a quo and that of the respondent dismissing the appellant on the basis that there was no evidence in support of the charges.

In view of the finding that I make on the first issue, the second and alternative ground of appeal, attacking the propriety of the sentence, naturally falls away.

The appellant has been successful and is entitled to his costs.

In the result, I make the following order:

The appeal is allowed with costs.

The decision of the court a quo is set aside and is substituted with the following:

“The appeal is allowed with costs.

The decision of the respondent to dismiss the appellant is set aside.

The appellant is found not guilty on both charges and is duly acquitted.

The appellant is reinstated with no loss of salary and benefits and if reinstatement is no longer tenable, to the payment of damages, the amount of which shall be agreed upon between the parties failing which it shall be quantified by this Court.”

HLATSHWAYO JA:			I agree

BERE JA:				(No longer in office)

Lovemore Madhuku Lawyers, appellant’s legal practitioners

Civil Division of the AG’s Office, respondent’s legal practitioners