Chikwanda Richman v The Secretary for Civil Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/41/16
HELD AT HARARE 7th OCTOBER 2015
CASE NO LC/H/835/14
AND 22ND JANUARY 2016
JUDGMENT NO LC/H/41/16
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/41/16

HELD AT HARARE 7th OCTOBER 2015     CASE NO LC/H/835/14

AND 22ND JANUARY 2016

In the matter between:

CHIKWANDA RICHMAN						Appellant

And

THE SECRETARY FOR CIVIL

SERVICE COMMISSION					1st Respondent

THE SECRETARY FOR PRIMARY & SECONDARY 	2nd Respondent

EDUCATION NO

Before The Honourable Mhuri, J.

For Appellant:	Mr W Chagwiza (Legal Practitioner)

For Respondent:	Mr J Mumbengegwi (Civil Division of Attorney General’s Office)

MHURI, J.

Appellant was a Senior Teacher based at Two Tree Hill Primary School when the allegations for which he was dismissed arose.

It was alleged that Appellant uttered vulgar words to Ellen Chamba a 9 year old grade 3 pupil to the effect that,

“mine can penetrate”, “let’s see your breasts” “you are my wife” and lets go behind the classroom to have sex”.

It was also alleged that he improperly associated with Kelly Matiga, a grade 7 girl pupil by making unbecoming utterances such as

“you are my girl” and “give me love”.

Out of the 15 allegations preferred against Appellant, it is, only the two mentioned above which were proven and Appellant was found guilty of vis

– 	unbecoming and indecorous utterances and

Improper association.

Appellant’s main argument in this court was that the complainants’ (Ellen and Kelly) evidence was procured through leading questions.  Appellant referred to the Public Service Commission’s decision (paragraph D (ii)(c)) which reads -

“during the hearing utterances and statements were read to Ellen and in turn she just confirmed that the former member said them, and there was no verification which was done to prove that he said those words to Ellen Chamba.”

It is noted that this particular paragraph was captured by the Public Service Commission not as a finding but part of Appellant’s grounds for review to the Public Service Commission.  This paragraph cannot therefore be evidence that evidence was procured through leading questions.

Appellant also referred to pages 47, 48, 52 and 53 of the record to buttress his submission that evidence was procured through leading questions.

The relevant paragraphs referred to were:-

Page 47 –

Committee: 	What about the issue of you being his wife, was it discussed.

Ellen:	Yes he mentioned it.

Committee:	What about the issue of “Mine will get in”

Did he mention it.

Page 48

Ellen:	He said it and I said it will not get in and he said it will definitely get in.

Page 52

Committee: 	What about “what should we do, you are mine what you want tell me”, did he say it.

Page 53

Kelly:	He said so and I said love for what.  He said I should give him love and I said I do not want.  He was wearing his brown jean, cap and he was holding a sack.

Committee:	What about, “You are my babe” are you not lying against him.

Kelly:	I am not lying against him, it is because we were told what he said is what we should say.

Appellant correctly submitted that in labour matters tribunals are not really bound by rules of evidence.

The Public Service Regulations 2000 Statutory Instrument 1 of 2000 which govern members of the Civil Service provide in Section 45(2) as follows:-

“The hearing shall be conducted without the need to observe the rules of procedure and evidence ordinarily applicable in criminal or civil proceedings, provided, however that the member concerned is afforded the opportunity to respond to every allegation … and that substantial justice is done.”

I agree with Respondent’s submission that whilst indeed some sort of leading questions were asked, this case is to be determined on its own circumstances.  In casu, the complainants were pupils of a tender age.  It was therefore necessary to adduce evidence in the manner the committee did in order to get to the bottom of the case.  This was not a criminal trial where the strict rules of evidence had to be observed (namely that leading questions are not permissible, the cautionary rule is to be applied.)

The procedural fairness in this case was followed.  The rules of natural justice were followed.  Appellant was legally represented, was given the opportunity to challenge the complainants’ evidence.

It is a trite position that an acquittal in a criminal court does not bar institution of civil proceedings.  Neither does it mean that a person cannot be found guilty under disciplinary proceedings.  The reasoning is simply that the burden of proof in a criminal matter is higher than the one required to prove a case in civil proceedings particularly in disciplinary proceedings such as this one.

Further, the procedure in a criminal matter is different from the one used in disciplinary proceedings.  In a criminal matter, as submitted by Respondent, correctly so, a matter cannot proceed in the absence of the witnesses particularly complainants.

In disciplinary proceedings, the matter can proceed to finality without the need to call witnesses.  Their statements can be used.  The disciplinary committee can proceed on the documents filed of record and determine a matter.

See section 45(2) of the Public Service Regulations cited supra.

In casu, however the witnesses were called, they gave evidence, and were cross-examined by Appellant.  The Disciplinary Authority believed the witnesses evidence and the Commission found no basis to interfere with its decision.

This Court also finds no basis to interfere with the Commission’s determination.

In the result, the appeal, is dismissed in its entirety.

Chagwiza & Partners – Appellant’s legal practitioners

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