Elias Machekeche v Civil Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MS/19/16
HELD AT MASVINGO 18 MARCH 2016
CASE NO
JUDGMENT NO LC/MS/19/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MS/19/16

HELD AT MASVINGO 18 MARCH 2016			CASE NO LC/MS/24/15

& 13 MAY 2016

In the matter between:

ETIAS MACHEKECHE						Appellant

And

CIVIL SERVICE COMMISSION					1st Respondent

And

MINISTER OF PUBLIC SERVICE, LABOUR &			2nd Respondent

SOCIAL WELFARE

Before The Honourable L Hove, Judge

For Appellant			Mr I F Muzenda (Legal Practitioner)

For Respondent		Mr H Magadure (Civil Division)

HOVE, J:

The appellant was, before his dismissal, the provincial Labour Administrator for Masvingo Province.

On 4 November 2014 appellant was arrested by CID on allegations of receiving a bribe as a result of a trap executed at the instance of Great Zimbabwe University.  On 5 November he was sentenced upon conviction to 3 years imprisonment.

On 10 November 2014 the respondent wrote a letter to the appellant suspending him on allegations that he had solicited for a bribe from Great Zimbabwe University.  In return for a favourable judgment in their favour in a quantification of damages case that he was dealing with.

He was subsequently charged with an act of misconduct.  He was found guilty and dismissed on 24 April 2015, a decision he became aware of on 6 May 2015.

He was aggrieved by the decision and he noted an appeal.

The grounds of appeal extended over two and a half typed pages.  Litigants noting notices and grounds of appeal should be warned to draft concise grounds of appeal and refrain from presenting written arguments as grounds of appeal.

The appellant in casu challenges factual conclusions drawn by the disciplinary committee.  He alleges generally that the committee misdirected itself by finding that the evidence of the witnesses who testified against him was credible.  The evidence of Ms Tirivanhu and Mr Chinyoka was specifically mentioned and the appellant argues that their evidence ought not to have been found to be credible in the absence one Zvobgo’s testimony.

It was also raised in the heads of argument that it was a misdirection to have found that the $1000 was bribe money and that it was wrong to place any reliance on the criminal conviction since the appellant had noted an appeal.  The committee is also alleged to have misdirected itself when it found that the existence of bad blood between the parties had not been established.  Finally it was alleged that the disciplinary committee had misdirected itself by failing to take into consideration that appellant could not see and that the allegations were fabricated.

The entire grounds of appeal challenge factual findings of the disciplinary committee but there are no allegations of gross irrationality in the findings of facts made by the committee.

The respondent argued that the case against the appellant was proved on a balance of probabilities it was submitted that it was argued that the standard of proof required in civil matters is much lower than that required in civil matters.

In civil matters

Reliance for the proposition was placed on the case of Zesa v Dera 1998 (1) ZLR 500 and also the following two authorities;

Hoffman and Zeffert SA Law of evidence 4th ed at 528 where it was stated that

“There are no exceptions to that rule that all issues in civil action are decided upon a preponderance  of probabilities” and

Joubert, The Law of South Africa Vol 9 paragraph 572 at 340 where it was stated that;

“in civil proceedings, proof is furnished upon a  preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

The court agrees with the respondents submissions.  The charges against the appellant were proved on a balance of probabilities and it is indeed trite that in general, in finding facts and making inferences in civil cases, the court or tribunal may not even exclude every reasonable doubt.  The court or tribunal may go upon a mere preponderance of probabilities it may not even exclude every reasonable doubt.  The court or tribunal may by balancing probabilities select a conclusion which seems to be the mere natural or plausible conclusion.

This is different from criminal cases where every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond a reasonable doubt.  So the committee by balancing probabilities accepted the witnesses evidence as the most probable one.  They were well within their rights to do so.

See in this regard the case of

Ebrahim v Pittman N O 1995 (1) ZLR 184

Further and in any event, this court sitting as an appeal court cannot interfere with findings of fact of a tribunal a quo. In Tirivangana v University of Zimbabwe SC 21/13 the court held that;

“The court a quo could only have upset the findings of fact by the arbitrator if the exercise of his discretion was irrational on the evidence placed before him as was stated by KORSAH JA  in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.”

It is only when such findings of facts are grossly unreasonable capricians and mala fide that the appellate court may interfere in Nyahondo v Hokonya & Others 1997 (2) ZLR 475 SC the court held that

“An appellate court will not interfere with the decision of a trial court based purely on findings of acts unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted moral standard that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.””

In casu the appellant does not allege gross irrationality.  He boldly states that the evidence of the witnesses ought not to have been accepted but does not explain how the acceptance can be categorised as wholly unreasonable.  It is also not explained how failing to find that there was bad blood between the parties can be categorised as grossly unreasonable.  In my view the finding was  reasonable and supported by the evidence which was placed before the committee.  Infact the appellant had admitted that he accepted money as a bribe to the officials who entrapped him.  So there was enough grounds to find him guilty even if the appellant had appealed against conviction in the criminal court.

I accordingly find that the allegations against the appellant were proved on a balance of probabilities.

Having found thus, the following order is made;

Appeal dismissed with no order as to costs.

Muzenda & Partners, appellant’s legal practitioners

Civil Division of the Attorney General’s  Office, respondent’s legal practitioners