Charles Bvunzano v Ministry of Education, Sport, Arts and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/725/13
HELD AT HARARE ON 25TH NOVEMBER, 2013
CASE NO. LC/H/172/13
AND 20TH DECEMBER, 2013
JUDGMENT NO. LC/H/725/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/725/13

HELD AT HARARE ON 25TH NOVEMBER, 2013   CASE NO. LC/H/172/13

AND 20TH DECEMBER, 2013

In the matter between:-

CHARLES BVUNZANO							Appellant

And

MINISTRY OF EDUCATION,

SPORT, ARTS AND CULTURE					Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: 	Mr. K. Maeresera (Legal Practitioner)

For Respondent:	Ms. T. Kasere (Civil Division of Attorney-General’s Office)

MHURI J.:

Appellant was a teacher at Changamire Secondary School in Buhera.  Under paragraphs 7 and 24 of the Public Services Regulations 2000 Statutory Instrument 1 of 2000 (the Regulations) Appellant was charged with and dismissed from employment for improper association with a minor (student) and abuse of authority.

It was alleged that on the 8th November, 2011 at around 5 am Tendai Nangatidza a form 2 student and Appellant were seen leaving a house where they spent the night together by a Mr. Matsvai.

It was later established that the two had been having a relationship two months prior the 8th.  It is as a result of this improper association that the charge of abuse of authority arose.

Section 44 of the Regulations provides for the Procedure to be adopted before and immediately following an allegation of misconduct.

Subsection (1) enjoins the disciplinary authority to conduct or cause to be conducted such investigations as may be necessary.

Subsection (2) provides

“if, on completion of the investigations … it is found that an allegation of misconduct should be preferred against the member, the disciplinary authority shall …

Inform the member, in writing of the nature of the allegation against him, and call upon him to submit a written reply.

Where possible, furnish to the member copies of any material documentary evidence, if any relating to the allegation of misconduct, or afford the member an opportunity of having sight of any such evidence.”

The record shows that the above section was complied with by Respondent.  On the 27th April, 2012 Appellant acknowledged receipt of the charge letter.  On the 1st June, 2012 Appellant acknowledged receipt of a suspension letter to which copies of the documentary evidence pertaining to the charge were attached.

On the 1st December, 2011 in compliance with subsection (b) Appellant wrote his response to the charges.

Despite a report in the form stipulated in the fourth schedule of the regulations, I find that there was substantial compliance with Section 44.  As such this minor irregularity does not in any way vitiate the proceedings.

Section 46 provides for the hearing before the disciplinary committee.  The record shows that there was such a hearing.  After the hearing, the Disciplinary Committee made recommendations to the Disciplinary Authority which recommendations it approved.

It is a trite legal position that in civil matters such as this one, the burden of proof is on a balance of probabilities.  It is also an accepted principle of the law that an Appellate Court will not interfere with the tribunal aquo’s findings on credibility.

In casu, the Disciplinary Committee was faced with the evidence of Appellant against that of the complainant, Tendai, the eye witness Matsvai and the complainant’s father.

Appellant’s evidence in summary was basically that it was an issue of mistaken identity of Tendai by Mr. Matsvai.  He averred that he was in love with Tendai’s Sister Mercy and it was Mercy he spent the night with and was seen with on the morning of the 8th by Matsvai.

Tendai’s evidence was that in October, 2011 she fell in love with Appellant after persistent proposals.  On the 8th November she upon invitation, spent the night with Appellant and left at 5 am.  She was seen by Matsvai who then made a report.  She denied writing a letter (produced by Appellant) in which she denied writing the report in which she was admitting being in love with Appellant and was seen coming from Appellant’s house and also stating that she was beaten by her father.

Having considered the two parties versions, the Disciplinary Committee found the complainant’s version more credible than that of Appellant.  Indeed complainant’s version is more convincing than that of Appellant.

She clearly narrated what took place.  There was no reason why she could say it was her and not her sister who was in love with Appellant.  There was no reason why she could deny that she spent the night with Moleen.  If it was not her, why would she approach Matsvai’s wife and tell her to advise her husband not to state what he did not witness.

Appellant’s evidence on the other hand was not convincing.  Why would he impute mistaken identity on the part of Matsvai when he himself identified Matsvai at that time of the morning, why would Matsvai pick on Tendai if it was two people Chipo and Mercy who were both coming from Appellant’s house, Chipo having gone to his house to pick up a book and Mercy having spent the night with him.  If he was in love with Mercy and was with her on the night in question and was making marriage arrangements for the end of the month, why would the parents be against it and want to scuttle the marriage?  Appellant did not even see it crucial to call witnesses in the likes of his friend in whose house he and “Mercy” spent the night, his young brother from whom “Chipo” came at 5 am to collect a book and Chipo to come and corroborate his version of events.  All he did was to belatedly produce a letter in the hearing purportedly written by Tendai which Tendai refuted authoring.

The inconsistencies between Tendai’s and Matsvai’s evidence which Appellant want to capitalize on, are not of any consequence in my view.  The two corroborated each other on a very crucial issue that it was Tendai who Matsvai saw and spoke to.  Where the conversation took place at is not material in my view and cannot absolve Appellant.

The complainant’s father’s damning evidence which was not challenged was that Appellant sent a Mr. Mbirimbindo a friend of his, to him to plead with him to withdraw the case from the Headmaster but he refused.

I find that the Disciplinary Committee correctly found on a balance of probabilities that Appellant had committed the act of misconduct.

To that end I find no basis to interfere with the Disciplinary Committee’s findings and the Disciplinary Authority’s verdict and penalty.

Accordingly the appeal fails.  It is therefore ordered that the appeal be and is hereby dismissed in its entirety.

Maeresera and Partners–Appellant’s Legal Practitioners

Civil Division of the Attorney General’s Office–Respondent’s Representatives