Mhlanga Mxolisi v Ministry of Primary and Secondary Education

### Preamble
Judgment No. SC 35/19
1
Civil Appeal No. SC 276/16
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EX TEMPORE JUDGMENT

MHLANGA     MXOLISI

vs

MINISTRY     OF     PRIMARY     AND     SECONDARY     EDUCATION

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKONI JA, & MOYO AJA

BULAWAYO:	 25 & 27 MARCH 2019

Appellant in person

R. Hove, for respondent

MOYO AJA:	This is an appeal against the whole judgment of the Labour Court sitting at Bulawayo, handed down on 4 March 2015.

The facts of the matter are that the appellant was employed by the respondent as a teacher at Majiji High School.  He appeared before a disciplinary committee facing allegations of improper association with a minor student in contravention of para 7 of the first schedule to the Public Service Regulations (2000) as read with s 45 of the same regulations.  The minor concerned was a student at the said school.  He was convicted and discharged from employment.  Aggrieved, he appealed to the Labour Court, which dismissed the appeal.  He has now appealed to this Court.

The Labour Court found it necessary to hear evidence from the appellant, the minor student and a number of witnesses who had given evidence at the disciplinary committee hearing.  The Labour Court found that the evidence of most of the witnesses concerning the love affair between the appellant and the minor student was hearsay.  This was because all that the witnesses could attest to was the fact that the minor student had fallen pregnant which fact the Labour Court correctly found to be irrelevant to the charge that he faced.

The Labour Court found that the minor child gave a detailed account of her love relationship with the appellant including details which only participants in the relationship would know.  Against such detailed evidence from the student, the court found that the appellant gave a bare denial to the allegations and failed to cross examine her on material aspects of the charge.

The appellant was pre-occupied with the issue of paternity which in itself was not relevant to the charge.  His failure to cross-examine the minor student on material aspects meant that her evidence stood unchallenged.  The Labour Court found the student to be a credible witness and stated that it had no reason to disbelieve her.  It then found that the appellant did improperly associate with the minor student.

It is trite that an appellate court will not lightly interfere with the lower court’s findings on the credibility of witnesses.  An appellate court will only interfere where it finds that such findings are plainly wrong.  It has not been shown in this case that the findings of the Labour Court were plainly wrong. Accordingly, no basis has been established upon which this Court can interfere with the Labour Court’s findings on the credibility of the minor child.

In the final result, we find that this appeal lacks merit and ought to be dismissed.

Accordingly, it is ordered as follows:

The appeal be and is hereby dismissed with costs.

GWAUNZA, DCJ						I agree

MAKONI, JA 						I agree

National Prosecuting Authority, respondent’s legal practitioners