Aaron Pemberai Sahumani v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/161/24
HARARE, 13 FEBRUARY, 2024
CASE NO LC/H/804/23
10 APRIL 2024
AARON PEMBERAI SAHUMANI
APPELLANT
ST
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==============================IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/161/24

HARARE, 13 FEBRUARY, 2024
10 APRIL 2024

CASE NO LC/H/804/23

AARON PEMBERAI SAHUMANI

APPELLANT

MINISTER OF PRIMARY AND SECONDARY EDUCATION

1ST RESPONDENT

CIVIL SERVICE COMMISSION

2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant - Mr T.L. Mapuranga, Attorney

For Respondents - Mr F. Chimunoko, Officer

MUSARIRI, J:

Appellant (employee) appealed to this Court against his dismissal from employment by respondents (employer). The appeal was made in terms of Section 51 of the Public Service Regulations S.I. 01 of 2000. The employer opposed the appeal. The grounds of appeal were quintet thus;


“1. The Disciplinary Committee grossly erred and misdirected herself in convicting the Appellant when no sufficient evidence was led to establish the misconduct of improper association with a minor.

2. The Disciplinary Committee seriously misdirected itself in convicting the Appellant based on the evidence of a complainant who was not a competent witness by reason of mental incapacity.

3. The Disciplinary Committee erred in over relying on the evidence of Plaxedes Chenaimoyo and Makanaka when such evidence was fraught with inconsistencies.

4. The Disciplinary Committee grossly erred by failing to take into account the fact that the state had declined prosecution of the Appellant on similar allegations on account of lack of evidence.

5. The Disciplinary Committee erred in imposing the penalty of dismissal, which penalty was manifestly unfair, unreasonable and harsh in the circumstances.”

These grounds raise basically 3 (three) issues which shall be dealt with ad seriatim.

1. Whether the complainant (Plaxedes) was a competent witness:

In his heads of argument the employee expatiated as follows;

“20. As if that was not enough the Disciplinary Committee seriously misdirected itself in convicting the Appellant based on the evidence of Plaxedes who was not a competent witness by reason of mental incapacity. The Head of Investigation, Mr Munzara when asked by the Disciplinary Committee whether Plaxedes has mental challenges gave the following response;


21. Section 5 of the Civil Evidence Act (Chapter 8:01) provides that no person who is suffering from any mental disorder or defect to such an extent that he is deprived of the proper use of his reason shall be competent to give evidence whilst so suffering.”

The assertion that Plaxedes was mentally challenged was not developed further beyond Munzara and the employee’s **ipse dixit**. Their qualification/s to speak to mental health was not laid out. Neither did they set out the basis upon which they made their conclusions. A diagnosis of mental illness is a matter that ordinarily requires expert opinion/s. In the circumstances the bald allegation of mental illness is baseless.

2. **Whether Plaxedes and Makanaka were credible witnesses:**

The Disciplinary Committee (DC) made the following findings;

- Both Makanaka and Plaxedes concurred that, Mr Sahumani Pemberai indeed came to the house by night and knocked at the door told Plaxedes to come out of the house to collect the groceries which the member stated were from Rebecca (Aunt).
- The two key witnesses concurred that the member took Plaxedes to his house 70m away and had sexual intercourse with Plaxedes in the member’s matrimonial bedroom.
- Makanaka followed behind peep through the window while standing on a log which is outside the bedroom.
- The two young girls were left alone at their Aunt Rebecca’s place when she went to process her late husband’s estate papers.


• Makanaka during the interview described the bedroom vividly and the member did not deny.
• Member could did not cross examine the two key witnesses Makanaka and Plaxedes which left a lot to be desired.”

A perusal of the minutes of the hearing shows that Plaxedes and Makanaka corroborated each other on the key aspects case. The employee came to their place at night and took Plaxedes to his house where he forced himself on her. That alone is sufficient to prove the charge of improper association with a minor. The inconsistencies referenced by the employee do not detract from witnesses’ consistence on the material issues. The employee made much of the fact the State declined to prosecute him on a charge of rape. In casu the charge was not rape but improper association. In any event the standard of proof is higher in criminal cases that in disciplinary matters. This Court is satisfied that the DC correctly believed the evidence of Plaxedes and Makanaka.

3. Whether the penalty of dismissal was excessive:

In his heads of argument the employee made the following concession;

“31. In the event that the appeal against conviction is dismissed, the Appellant abandons his appeal ground number 5 which addresses the issue of penalty. The concession is based on the decisions of this court in Magidi v Minister of Higher Education LCH 134/09, Buvyesi v Minister of Education and Culture LCH 18/15, Makurira v Minister of Primary and Secondary Education LCH 83/23.”

The concession was well made. Nothing further need be said on this issue.

Conclusion

The aforegoing analysis shows that all the issues resolved against appellant. Therefore his appeal ought to be dismissed as devoid of merit.


Wherefore it is ordered that,

1. The appeal be and is hereby dismissed and;

2. Each party shall bear its own costs.

G. MUSARIRI
J-U-D-G-E
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