Rangarirai Gozho v Minister of Education, Sports and Culture

### Preamble
Judgment No. SC 155/20
1
Civil Appeal SC 696/17
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DISTRIBUTABLE	(150)

RANGARIRAI     GOZHO

v

MINISTER     OF     EDUCATION,     SPORTS     AND     CULTURE

SUPREME COURT OF ZIMBABWE

HLATSHWAYO JA, GUVAVA JA & BHUNU JA

HARARE:  MARCH 13, 2018 & NOVEMBER 13, 2020

J. Mambara, for the appellant

L. T. Muradzikwa, for the respondent

GUVAVA JA:

INTRODUCTION

[1]	 This is an appeal against the judgment of the Labour Court dated 16 October 2016 in which the court a quo upheld the appellant’s conviction on a charge of improper association with his minor pupil by having sexual intercourse with her and giving her family planning tablets. Following his conviction on the above charge the appellant was dismissed from employment. Leave to appeal was granted by this Court on 24 March 2016 and condonation for late noting of appeal and extension of time within which to note the appeal was granted on 31 August 2017.

BACKGROUND OF FACTS

[2]	The brief facts of the matter are that the appellant was employed as a teacher at Nyamusosa Primary School in Makoni District in Manicaland Province. On 1 March 2010 the appellant was charged with improper association with a school child, who was at that time in grade 6 in 2009 at Nyamusosa Primary School.

[3]	The minutes of the Disciplinary Committee preferred the charge against the appellant as follows:

“Mr Gozho R, a member of the Public Service was charged with misconduct in terms of section 44 (2) (a) of the public service Regulations 2000 as read with paragraphs 7 and 24 of the first schedule section (2) to these regulations for: Improper association with a school child, L.S   and having sexual intercourse with her several times to the extent that he gave her family planning tablets.”

[4]	The appellant was also arrested and charged with the crime of having sexual intercourse with a young person as defined in s 70 (1) (c) of the Criminal Law (Codification and Reform) Act [Chapter 9: 23]. However, at the close of the State case the appellant applied for discharge. The magistrate granted the application on the basis that the State had failed to prove a prima facie case against the appellant.

[5]	Following his discharge in the criminal trial, the appellant was invited to attend a disciplinary hearing by the respondent. At the hearing, the appellant denied the charge made against him. The Disciplinary Committee found that it had failed to prove that the appellant had sexual intercourse with the minor several times to the extent that he gave her family planning tablets. The Committee however found that the appellant was guilty of improperly associating with the minor child outside normal teacher - learner relations to the extent of giving the child $5.00. The Disciplinary Committee recommended that the appellant be discharged from the service.

[6]	On 20 April 2012 the respondent (Disciplinary Authority) wrote a letter to the appellant informing him that he had been found guilty of the charges which had been preferred against him. The letter by the respondent stated as follows:

“…, in terms of Section 46 (1) (b) of the Public Service Regulations, 2000, as amended, I found you guilty of misconduct on allegations that you improperly associated with a school child, …, who was in Grade 6 in 2009 by having sexual intercourse with her several times to the extent that you gave her family planning tablets.”

The respondent thereafter discharged the appellant from the service with effect from 22 May 2012.

[7]	Aggrieved by his dismissal from service, the appellant noted an appeal before the court a quo.

The court a quo in dealing with the appeal found that the appellant had failed to challenge the evidence which had been made against him by the minor child.  The court went on to find that the appellant was supposed to act as a guardian to the child. The court further found that even though the appellant did not have sexual intercourse with the child, he had improperly associated with her by giving her family planning tablets and face powder.

[8]	The court a quo went on to find that the appellant had a duty to act in good faith to the respondent. The court held that the appellant failed to discharge such duty by improperly associating with the child. The court also held that the Secretary’s Circular No.4 of 2012 provided that a charge or conviction of improper association called for a penalty of discharge. As such, the court dismissed the appeal.

[9]	Dissatisfied, the appellant noted an appeal to this Court on the following grounds:

“The court a quo erred in coming to the conclusion that the Disciplinary Authority could properly find the appellant guilty on a charge for which he had been acquitted by the trier of facts.

The court a quo erred in finding that there had been an improper splitting of charges.

The court a quo misdirected itself in placing reliance on a circular which does not carry force at law in coming to its conclusion that dismissal was the appropriate penalty. In any case, such a circular could not apply in retrospect.

The court a quo misdirected itself on the facts, which misdirection is so gross as to amount to a question of law in the following respects:

It introduced new facts and arguments which had not been placed before her; in particular that appellant had sex with one Prudence.

Finding that appellant owed a fiduciary duty to respondent.”

ISSUES FOR DETERMINATION

[10]	In my view two issues arise for determination from the appellant’s submissions made by counsel before this Court which have the effect of disposing the appeal. These are as follows:

Whether or not the appellant was properly convicted of the charge preffered against him by the respondent

Whether the respondent erred in confirming a conviction for which the appellant had been acquitted.

SUBMISSIONS ON APPEAL

[11]	In motivating the appeal before this Court, counsel for the appellant Mr Mambara argued that the gravamen of the matter was that the appellant was charged with a specific offence. The charge was of “ improper association with a minor by having sexual intercourse with her several times to the extent of giving her family planning tablets’’. Counsel argued that the appellant was however exonerated of the charge by the Disciplinary Committee as it found that there was insufficient evidence to convict him of having sexual intercourse with the minor child. He submitted that the Disciplinary Committee however erred when it went on to find the appellant guilty of improperly associating with the minor by giving her money when he was never charged with that offence.

[12]	Mr Mambara argued further that the respondent’s letter of dismissal compounded the error when it stated, in dismissing the appellant from service, that he was convicted of the charge of improper association with a minor by having sexual intercourse with her to the extent of giving her family planning tablets. It was clearly not in dispute that the Disciplinary Committee had found the appellant not guilty of this offence.

[13]	Counsel also submitted that the court a quo erred by taking into account extraneous issues which were not before it and dismissing the appeal.

[14]	Counsel thus submitted that the appropriate remedy was to set aside the decision of the court a quo and remit the matter for a hearing de novo.

[15]	Counsel for the respondent Mr Muradzikwa, per contra, submitted that from the record it was clear that the charge against the appellant was improper association with a minor. Counsel argued that although the appellant was not found guilty of having sexual intercourse with the child he was found guilty of giving the child money. Counsel argued that the act of giving the child money amounted to improper association. It was his argument that it should not matter what kind of association it was as long as it was improper. With regards to penalty he submitted that the actions of the appellant undermined the trust and confidence between an employer and employee and therefore his conduct warranted dismissal from the service.

[16]	Mr Muradzikwa further submitted that the Disciplinary Authority erred by dismissing the appellant on a charge in respect of which he had been acquitted of.  He therefore submitted that, if the court was of the view that a remittal was the appropriate remedy, then the matter ought to be remitted in terms of s 46 of the Public Service Regulations, 2000, which is a remittal to the Disciplinary Committee for a hearing de novo rather than a remittal to the court a quo.

APPLICATION OF THE LAW TO THE FACTS

[17]	It seems to me that in dealing with this appeal the court has to determine, firstly whether or not the appellant was properly convicted of the charge made against him by the respondent. Once it is established that the appellant was not convicted of a proper charge, it follows that the court a quo erred in its findings and the other issue falls away. However, if the Court finds that the conviction was proper, then an examination will be made on whether or not the appellant could be dismissed on the basis of a charge for which he had been found not guilty by the Disciplinary Committee.

WHETHER OR NOT THE APPELLANT WAS PROPERLY CONVICTED OF THE CHARGE PREFFERED AGAINST HIM BY THE RESPONDENT.

[18]	The Disciplinary Committee charged the appellant with contravening s 44(2)(a) of the Public Service Regulations, 2000 as read with paras 7 and 24 of the First Schedule. Section 44(2)(a)  states as follows:

“44. Procedure before and immediately following allegation of misconduct

(1)	Where a member is suspected of misconduct, the disciplinary authority shall conduct or cause to be conducted such investigations as may be necessary.

(2) 	If, on completion of the investigations referred to in subsection (1), it is found that an allegation of misconduct should be preferred against the member, the disciplinary authority shall, within a reasonable time after the completion of the investigation—

(a) 	inform the member, in writing, of the nature of the allegation against him, and call upon him to submit a written reply to the allegation within fourteen days;”

Paragraphs 7 and 24 of the First Schedule provide as follows:

“7. Unbecoming or indecorous behaviour, including the consumption of intoxicating liquor to excess or of dangerous or prohibited drugs, or improper association with minors, at any time or place in any manner or circumstances likely to bring the Public Service or any part thereof into disrespect or disrepute.

…

24. Any act or omission which is inconsistent with or prejudicial to the discharge of official duties, including the abuse of authority”

[19]	It appears from the above stated provisions that the legislator has set out the procedure to be followed when there is an allegation of misconduct against a member. My understanding of s 44 is that, firstly, there must be an investigation carried out. Secondly, if the investigation produces results that indicate that the member may be guilty of misconduct, then he must be informed in writing of the nature of the allegations against him. Finally, the member is then called upon to respond to the specific allegations that have been made against him within fourteen days.

[20]	The above procedure indicates that upon completion of the investigation the respondent must prefer a charge against the member and the member is obliged to answer to that specific charge.  Thereafter a hearing is conducted on that charge.

[21]	The Disciplinary Committee in this case charged the appellant with one specific charge. It found that there was insufficient evidence before it to convict the appellant of improper association with a minor by having sexual intercourse with the minor child to the extent of giving her family planning tablets. The Disciplinary Committee, however, went on to find that the appellant was guilty of improper association with the child in that he gave her $5.00 and recommended a penalty of discharge from the service.

[22]	It is apparent that the appellant was not charged with the offence of improper association with a minor by giving her $5. The Disciplinary Committee conducted a hearing against the appellant on the basis of a specific charge which was cited above. After conducting the hearing the committee went on to make the following finding:

“The Disciplinary Committee was unable to prove beyond a reasonable doubt that the member had sexual intercourse with L.S several times to the extent that he gave her family planning tablets. The committee is satisfied however; that the member associated with L. outside normal teacher- pupil relations to the extent that he gave L. $5.00 and this was corroborated by P”

[23]	Two issues arise from the finding of the committee; firstly, the committee used a wrong test in proving whether or not the appellant was guilty. Proof in civil matters is always on a balance of probabilities.

[24]	In ZESA v Dera 1998 (1) ZLR 500 (S), at 503E-504D, this Court remarked thus:

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus a person convicted of a crime is marked as one whose conduct stands condemned by society. A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face is not a judgment by society as a whole, but simply a resolution of the dispute between the parties. (See Ngwaru v First Mutual Health Company (Pvt) Ltd SC 38/19)”

The Disciplinary Committee applied a higher standard of proof than that which is required in a civil case. This was clearly a misdirection on the part of the Disciplinary Committee.

[25]	The second reason why the finding by the Disciplinary Committee cannot stand is that the appellant was thereafter found guilty of a charge which was never put to him. The case that was put to the appellant was that he had improperly associated with a minor, by having sexual intercourse with her and giving her family planning tablets. However the committee found the appellant guilty of improper association with the minor to the extent that he gave her $5.00.

[26]	A reading of the record of proceedings before the Disciplinary Committee shows that the charge of improper association to the extent that the appellant gave the child $5.00 arose from the evidence led by the child.

[27]	The record clearly shows that the appellant was not given an opportunity to proffer a defence to the allegations made by the child during the hearing.

[28]	I find that the approach taken by the Disciplinary Committee in this regard was grossly irregular and against the principles of natural justice. A specific charge was made against the appellant at the commencement of the disciplinary hearing and the appellant gave his defence in relation to that specific charge. To show that the appellant successfully defended the allegation, the Disciplinary Committee found that there was no proof to show that he had sexual intercourse with the child to the extent of giving her family planning tablets. The committee thereafter exonerated the appellant.

[29]	In Nyarumbu v Sandvik Mining and Construction Zimbabwe SC 31/13 at p 6 of the cyclostyled judgment the Court noted that:

“The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence.”

[30]	In the present matter, the Disciplinary Committee having found that the appellant was not guilty of the charge made against him established his innocence. The committee could not then find the appellant guilty of a charge which had not been made against him and of which he had not been given notice. The Disciplinary Committee thus erred in finding the appellant guilty of a charge which was never made against him.

For the sake of completeness I propose to deal with the second issue.

WHETHER THE RESPONDENT ERRED IN DISMISSING THE APPELLANT ON A CHARGE FOR WHICH HE HAD BEEN ACQUITTED

[31]	It is apparent from the record that the Disciplinary Authority upheld the recommendation of the Disciplinary Committee for the discharge of the appellant from service. However, Mrs. Mutasa, the then acting Secretary, in writing the letter of dismissal stated as follows:

“…, in terms of Section 46 (1) (b) of the Public Service Regulations, 2000, as amended, I found you guilty of misconduct on allegations that you improperly associated with a school child,L. S  who was in Grade 6 in 2009 by having sexual intercourse with her several times to the extent that you gave her family planning tablets.”

As can be observed from the letter, the Disciplinary Authority in implementing the recommendation, found the appellant guilty of the charge which the appellant had been found not guilty of by the Disciplinary Committee. There is no explanation why the Respondent, as the Disciplinary Authority, acted in this manner. It can only be taken to mean that despite the appellant having been found not guilty of having sexual intercourse with the child, he was still dismissed on account of the charge for which he had been acquitted. A reading of the Public Service Regulations does not seem to give the Disciplinary Authority the power to depart from the recommendations of the Disciplinary Committee. If the Disciplinary Authority did not agree with the recommendation, it is unlikely that it would have the power to find a member guilty of an offence for which he had been acquitted. Indeed Mr Muradzikwa, for the respondent, did not make this submission. He merely stated that it was an error on the part of the Disciplinary Authority. Clearly he was constrained in this regard as s46 (4) of the Public Service Regulations states:

“It shall be competent for the Disciplinary Authority to find a member guilty of an act of misconduct other than the act which the member was originally alleged to have committed if the facts disclose such other act:

Provided that, where the Disciplinary Committee has not made a finding that the member is guilty of such other act, the Disciplinary Authority shall refer the matter back for further hearing by the Disciplinary Committee.” (my emphasis)

[32]	The Disciplinary Authority in casu proceeded to find the appellant guilty of the charge for which he had been exonerated which it clearly did not have the power to do. On appeal, the court a quo did not deal with this aspect. The court a quo found that the charge of improper association with a child to the extent of giving her money was a proper charge even though the appellant was dismissed on the basis of a charge that he had been found not guilty of.

[33]	The peremptory wording of the proviso to s 46(4) of the Public Service Regulations required the Disciplinary Authority to refer the matter back to the Disciplinary Committee in these circumstances.  It did not do so.

DISPOSITION

[34]	The court a quo misdirected itself in dismissing the appellant’s appeal. Firstly, the court ought to have been cognizant of the fact that the Disciplinary Committee had acquitted the appellant of the charge made against him. Secondly, it should have found that the Disciplinary Committee erred in finding the appellant guilty of an offence which he had not been charged with. Finally, it should have taken into account that the Disciplinary Authority, in turn, erred in dismissing the appellant on a charge for which he had been acquitted of. In the circumstances the decision of the Disciplinary Authority must thus be set aside. Both counsel for the appellant and the respondent submitted that the matter should be remitted for a hearing de novo. In view of the proviso to s 46(4) of the Public Service Regulations it seems to me that the appropriate remedy would be to refer the matter back to the Disciplinary Authority for it to act in accordance with the above provision.

[35]	The appellant has been partly successful and is entitled to his costs.

[36]	In the result it is ordered that:

The appeal be and is hereby allowed with costs.

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

“The appeal is allowed with costs.

The decision of the Disciplinary Authority be and is hereby set aside.

The matter be and is hereby remitted to the Disciplinary Authority for it to act in accordance with s 46(4) of the Public Service Regulations, 2000.”

HLATSHWAYO JA		I agree

BHUNU JA			I agree

J. Mambara & Partners, appellant’s legal practitioners

Attorney-General’s Civil Division, respondent’s legal practitioners