Austin Kusokora v Minister of Home Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/400/2016
HARARE, 11 MAY 2016 &
CASE NO LC/H/953/2014
23 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/400/2016

HARARE, 11 MAY 2016 &					        CASE NO LC/H/953/2014

23 JUNE 2016

In the matter between

AUSTIN KUSOKORA							APPELLANT

Versus

MINISTER OF HOME AFFAIRS						RESPONDENT

Before the Honourable P Muzofa J

For the Appellant	L T Musekiwa (Legal Practitioner)

For the Respondent    C Chopamba (Legal Practitioner)

MUZOFA J:

The appellant was employed by the respondent from 1985 until September 2014 when he was dismissed from employment. He has approached this Court on appeal against the dismissal.

The background facts are not in dispute. The appellant was employed as a processing officer based at the Harare Market Square District Registry. Being so positioned the appellant duties included authorising processing and issuance of national identities. It was alleged that the appellant improperly and negligently authorized the processing of one Amir Hossain’s identity document.

The appellant was charged in terms of section 44 (2) (a) and (3) of the Public Service Regulations, 2000 as amended for improper, negligent, and inefficient performance of duties and failure to perform any work or duty properly assigned or failure to obey lawful instructions. He was found liable and discharged from employment.

Dissatisfied by the outcome the appellant noted this appeal.

Eight grounds of appeal were set out which to my mind raise one issue whether there was adequate evidence to found liability in this case. According to the appellant there was inadequate evidence in that:

The appellant was not responsible for vetting and approving the process but his supervisor who was not called to give evidence.

That the appellant was not responsible for the missing documents.

That the appellant followed superior orders hence he authorised the processing of the national identity card.

That the fraudulent national identity document was not produced.

That there was no evidence from one Amir Hossain and his wife to comment on the appellant’s involvement in this process.

That he addressed the disciplinary committee in mitigation before a verdict was pronounced this was an anomaly.

That the disciplinary committee did not consider the mitigatory factors before making the recommendation to dismiss the appellant.

Where an appellant challenges the adequacy of evidence, the court’s role is to assess whether the employer proved its case on a balance of probabilities. See generally ZESA v Dera SC 79/98.

It is also a settled principle within our courts that an appeal court should not be quick to interfere with the decision of a quasi-judicial tribunal unless it is shown that the decision reached in view of the proved facts is grossly unreasonable. Chioza v Siziba SC 4-15.

According to the appellant issuance of a national identity document is a process with different people checking documents. On this fateful day the appellant’s supervisor one Makomeke vetted the documents and the completion of a form called NRI Form. The appellant then authorised that Amir Hossain proceed to the next person to be photographed. He therefore acted on superior authority. He did nothing wrong because all the documents required were there.

For the respondent it was submitted that in the process of issuing of a national identity document there are checks and balances. The process is not done by one person. There are various people involved. The appellant was the last person in that process. At every level one is required to check if all the requisite documents and information is available before authorising the documents to be taken to the next level.

In casu the appellant received documents from his supervisor. The NRI form was missing, the attached birth certificate did not have a national registration number endorsed on it. Despite those anomalies the appellant authorised that a national identify document be issued. Coincidentally the person was issued a national registration number which belonged to another person one Robert Lockwood.

For that the appellant failed to perform his duties properly. The respondent suspected that there was connivance within the department. This was evidenced by the supervisor’s reaction when this matter surfaced. He resigned.

In my mind I believe on the fateful day the appellant failed to perform his duties. I say this because of what transpired during the disciplinary hearing.

Firstly it was common cause that from the documents allegedly used to authorise issuance of Amir Hossain’s national identity, the NRI form was missing. Even if the appellant claimed he saw it, it was not there. The birth certificate that was attached had no endorsement of an identity number. The appellant claimed it was there. The birth certificate was produced before the disciplinary committee and it was evident that there was no endorsement. Even if it is accepted that the NRI form was there, the absence of the identity number on the birth certificate could mean one or two things. It would either mean that the appellant failed to check all the documents before authorisation or that he knew what he was doing in connivance with others. So by omission he would still be liable.

The appellant’s duties as the authorising officer bestowed on him a greater responsibility to detect omission whether by design or not. I do not believe he was just obliged to authorise issuance of Hossain’s national identity without checking the documents. The issue raised that the appellant followed superior orders is untenable. He was not given a direct instruction to authorise the issuance despite the anomalies. At least I did not hear the appellant claim so.

The documentation was therefore passed on to the appellant in the normal course of business.

It was therefore expected that he would not authorise the issuance of the national identity where there was an anomaly.

Although the appellant claimed the NRI form was part of the documents, it was not found despite diligent search. This was the reason why the respondent believed that the NRI form was not part of the documents authorised by the appellant.

According to a witness Muchemenye the NRI forms are completed in triplicates. The top copy is given to the applicant, the white form attached and sent to KG6 and the last copy remains on the pad.

The last copy that was supposed to remain on the pad with Amir Hossain’s details was not there. There was no missing NRI form. This could be ascertained since the forms are serialised.

I believe the respondent’s version the NRI form was not part of t he application documents for Amir Hossain.

I did not hear the respondent blame the appellant for the missing documents. To that extent the issue that the appellant was not responsible for the missing documents falls away.

The appellant also claimed that the fraudulent national identity was not produced. This averment would not assist the appellant. The charge relate to his failure to perform his duties by authorising issuance of a national identity with inadequate documentation.

In my view whether the national identity was genuine or fraudulent, the appellant would still be liable if he failed in his duties. The process is as important as the product in this case.

It was also raised by the appellant that Amir Hossain and his wife did  not  give evidence to set out how the appellant was involved in this process. That evidence would not have shown that the NRI was there neither was it to confirm that an identity number was endorsed on the birth certificate. These issues were already proved by evidence that they formed the anomalies that were the basis of the charge. The absence of the two witnesses in my view would not mean there was no evidence against the appellant.

The last two issues on mitigation were not substantiated. It was the appellant’s case that mitigation was recorded before the passing of the verdict and that there was no evidence that the factors were taken into account. The appellant failed to demonstrate what prejudice befell him as a result of recording mitigation before a verdict is reached.

As stated before the second part was not ventilated. The appellant should have substantiated the claim made.

I must say the offence that the appellant was facing did not relate to any benefit he might have derived from the wrongful conduct. The charge was that he failed to conduct his duties as expected of a person occupying his position.

The appeal has no merit. The appellant in his capacity as the authorizing officer failed to properly check the documents for Amir Hossain thereby making an undeserved authorisation. That is where the appellant’s liability arises.

Accordingly the following order is made:

The appeal be and is hereby dismissed.

The appellant’s dismissal is confirmed.

Musekiwa & Associates, appellant’s legal practitioners

Thondhlanga & Associates, respondent’s legal practitioners