Charles Murove v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/675/14
MUTARE, ON 25th SEPTEMBER , 2014
CASE NO. LC/H/690/13
AND 10 OCTOBER, 2014
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IN THE LABOUR COURT OF ZIMBABWE                               JUDGMENT NO. LC/H/675/14

MUTARE, ON 25th SEPTEMBER , 2014			             CASE NO. LC/H/690/13

AND 10th OCTOBER, 2014

In the matter between

CHARLES MUROVE				–	APPELLANT

And

JUDICIAL SERVICE COMMISSION		-	RESPONDENT

Before The Honourable L.M. Murasi, J

For Appellant :	Mr C. Ndlovu(Legal Practitioner)

For Respondent:	Ms K. Warinda(LawOfficer)

MURASI J,

Appellant was employed as a Provincial Magistrate stationed at Mutare. During a routine check of the Court Record Book it was discovered that sentences imposed by Appellant were suspiciously, the same in different matters that he had handled. The Head of the station decided to refer these cases for review. In a review judgment, UCHENA J. made comments about the sentences and referred the matter to the Chief Magistrate. This resulted in Appellant being charged. The Disciplinary Committee recommended that Appellant be fined the sum of USD 300.00 and his rank be reduced to that of Magistrate. The Disciplinary Authority however decided to dismiss Appellant. Appellant is dissatisfied with the decision and has appealed to this Court.

Appellant’s grounds of appeal are as follows:

The Disciplinary Authority erred and misdirected itself both on fact and law when they refused to recuse themselves from the proceedings. The complaint against the Appellant had been raised or brought up by a Judge of the High Court. All the panelists of the Disciplinary Authority were inferior and subordinate to the Judge of the High Court. It was highly unlikely and in fact improbable that they would in all fairness arrive at a decision opposite to the Honourable Judge’s findings or conclusions.

The Disciplinary Authority further erred and misdirected itself when it relied on and/or made reference to the Review Minute or Judgment by Justice Uchena. A judgment of Court is only but an expression of that Court’s opinion on matters before it. It is not conclusion or fact.

The Disciplinary Authority further erred and misdirected itself when it found the Appellant guilty of the offence charged. There was no realistic and at best sufficient evidence to prove the allegations. There is no mathematical formula to sentencing and section 131 of the Code does not carry a mandatory sentence and certainly the Appellant exercised his judicial discretion.

The conviction of the Appellant clearly erodes and takes away the time honoured judicial discretion that should be at the heart and centre of any judicial officer. The conviction is likely to instill fear and curtail judicial independence. If the Appellant erred the legal system has its in-built mechanisms for checks and balances.

The sentence that was imposed induced a grave sense of shock and disbelief. The sentence is disproportionate and clearly does not meet the justice of the case.

The Disciplinary Authority ignored the highly mitigatory features in favour of the Appellant and in particular that:-

He was a first offender.

He rose in the ranks to be a Provincial Magistrate.

He assisted in clearing the backlog at the station.

It is preferred that of a Court were to err it should be on the lenient side and not the opposite.

Training could cure the Appellant’s deficiencies.

The Attorney General never complained.

Two of his records with similar sentences were confirmed by a different Judge.

Appellant’s Counsel stated that he abided by the Heads of Argument filed of record. It was submitted that the Disciplinary Committee would not have arrived at a decision which was contrary to the findings of JUSTICE UCHENA. It was further argued that the panelists were privy to the Review Judgment before the hearing as this judgment should have been availed during the course of the hearing and not before. It was further argued that the failure by the Disciplinary Committee to recuse itself was a misdirection. It was further stated that in respect of the charge itself, the complaint by the Respondent went to the root of judicial discretion. It was further averred that the sentence imposed on Appellant was too severe and disproportionate to the offence with which Appellant was charged.

Respondent’s Counsel submitted that there were no reasonable grounds upon which the Disciplinary Committee should have recused itself as the complaint was not raised by the Judge. It was submitted that the Judge’s comments were purely judicial in nature where the Judge was exercising his review functions. It was also stated that it was not only the sentences which had raised the supervisor’s eyebrows. Several other issues pertaining to the records had led to the inquiry being made. As far as the penalty was concerned, it was submitted that the Disciplinary Committee could only recommend as the decision as to what penalty to impose remained the preserve of the Disciplinary Authority.

Precedent has always dictated that an appellate court will only interfer with the decision of a lower tribunal or Court where there is evidence of misdirection on the part of that court or tribunal. (See INNSCOR v L. CHIMOTO SC 06/2012).  A reading of the record shows that the Review Judgment that is referred to by Appellant’s Counsel came about as a result of a preliminary work done by the Provincial Magistrate’s Office at Mutare. It is clear that the office of the Provincial Magistrate at Mutare had no jurisdiction to “review or scrutinize” Appellant’s work. The only way to address the issue was to refer the matter for review. That the office of the Provincial Magistrate was astounded by the shortcomings in Appellant’s records was beyond question. It was therefore a way of confirmation by that office of the position as regards Appellant’s work.

Was the Disciplinary Committee supposed to recuse itself? It was argued by Appellant’s Counsel that the Disciplinary Committee was unlikely to go against the decision of the High Court Judge. Appellant was charged with misconduct. He was alleged to have discharged his duties in an improper, negligent, inefficient or incompetent manner. This is what the Disciplinary Committee was tasked to do. It would consider the records that were in question and analyse whether his work was above board having regard to the nature of the charges preferred against Appellant. This was purely an administrative function rather than a judicial one. The Review Judgment was merely confirmatory of what the office of the Provincial Magistrate had in mind. In submissions before Court, Appellant’s Counsel seemed to suggest that only judges at the High Court and Supreme Court should have heard Appellant’s as all other persons inferior in rank to JUSTICE UCHENA would find it difficult to go against that decision. I found this argument to be preposterous in nature with no tangible basis.

Appellant’s Counsel further submitted that there was no evidence to prove the allegations. As submitted by Respondent’s Counsel it was not only the sentences imposed by Appellant which were considered. It was stated that there was no evidence of mitigation in four (4) cases, no reasons for sentence in seven (7) cases, the name of Magistrate/Prosecutor not appearing on the Charge Sheet and lastly, the trial notes did not reflect what procedure was adopted in entering the plea. These are elementary issues that any Magistrate is aware of and should be reflected on a Court record. These were glaring ommissions by Appellant on the records that were sent to JUSTICE UCHENA. It also was not a coincidence that the sentences imposed in all these cases were three (3) months imprisonment. The issue to grapple with is whether all the accused were of the same age, used the same modus operandi to commit the offences, removed goods that were of the same value etc etc. This was not the position. The accused were certainly different and the crimes committed were not the same. Can it therefore not be concluded that Appellant’s performance of his duties was improper, negligent, inefficient or incompetent in the circumstances? If Appellant was unable to show how he arrived at the sentences imposed, would this not be termed improper and inefficient? If Appellant was unable to indicate the mitigation given by the accused and the procedure he had adopted, was this a show of competence? The Court is of the view that the evidence adduced was sufficient to prove on a balance of probability what Appellant was charged with.

The last issue the Court will consider is the penalty imposed on Appellant. The Regulations give the Disciplinary Authority discretion when it comes to imposition of the penalty. The Disciplinary Authority is not bound by the recommendations of the Hearing Committee. The Court notes that Appellant’s Counsel refers to Disciplinary Authority where he should be referring to the Disciplinary Committee. It is trite that the penalty to be imposed is usually at the discretion of the employer. A Court will only interfer with such a decision where there is evidence that it was unreasonable in the circumstances. I therefore associate myself with the following comments in NAMPAK CORRUGATED WAPEVILLE v KHOZA [1999] 2 BCLR 108 (LAC) at 113 F – I:

“… the determination of an appropriate sanction is a matter which is largely within the discretion of the employer. A Court should therefore not lightly interfer with the sanction imposed by the employer unless the employer acted unfairly in imposing that sanction. The question is not whether the court would have imposed the sanction by the employer but whether in the circumstances of the case the sanction was reasonable.

It seems to me that the correct test to apply in determining whether a dismissal was fair is that enunciated by Lord Denning Mr in BRITISH LEYLAND UK LIMITED v SWIFT [1981] IRLR 91 at 93 paragraph 11 which is:

‘was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him then the dismissal was unfair.’  But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.”

Appellant was a Provincial Magistrate. He had more than eight (8) years relevant experience as a Magistrate. Appellant was aware of what was expected of him during the execution of his duties as a Magistrate. Appellant was aware of the operation and          expectations of the justice system in Zimbabwe. Appellant must have appreciated that he was acting wrongfully or wrongfully omitting to do the right thing persistently with reckless indifference as to what the results maybe. There is no explanation as to why Appellant would have a string of seven different cases with the same sentences.  The cases did not have adequate information recorded on them. The Court is of the view that any employer would have taken an adverse view of such conduct. Appellant was clearly not furthering the interests of justice. It was argued that the conviction and penalty would interfer with judicial discretion. Hardly. It is the Court’s view that judicial discretion is not practiced in such a manner. It was therefore reasonable for the employer to dismiss.

In conclusion the Court finds the appeal to be devoid of merit and is accordingly dismissed with no order as to costs.

Gonese and Ndlovu – Appellant’s legal practitioners

Civil Division of the Attorney General’s Office – Respondent’s legal practitioners