Fadzanai Mutize v Health Services Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/336/14
HELD AT HARARE ON 2 & 6 June, 2014
CASE NO. LC/H/396/13
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/336/14

HELD AT HARARE ON 2 & 6 June, 2014		CASE NO. LC/H/396/13

In the matter between

FADZANAI MUTIZE						APPELLANT

AND

HEALTH SERVICES BOARD					RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Appellant	:	Mr F. Mutize – In Person

For The Respondent	:	Mr M. Bamu – Human Resources Officer

CHIVIZHE, J.

The matter was placed before me as an appeal against a determination by the Health Services board handed down on 31st January, 2012.

The material background facts are that the appellant was employed by the respondent as a painter based in the Engineering Division at Parirenyatwa Hospital.  On the 23rd of May 2011 he was apprehended by plain clothes security guards whilst in possession of 41 iron bars which belonged to the Hospital.  He had been observed earlier by the same plain clothes security guards dropping part of the loot near the corner of Leopold Takawira and Cork Road.  He later went back into the business premise and returned in the company of one Mr M Nhetekwa (another employee) with more iron bars.  When the security guards attempted to draw nearer to the two, appellant then dropped the iron bars and ran away from the scene.  It was respondent allegation that the appellant had only dropped after the security guards called him by his name.  Upon being apprehended it was respondent’s contention that the appellant and co-accused offered bribes to the arresting security detail who had then taken possession of the money as exhibits.  The appellant and co-accused were arraigned before the magistrate court to face criminal charges of theft of trust property as well as bribery.  They were however acquitted on the charges on 16 September 2011 the State having (according to the record) failed to call for evidence to show that the property belonged to the Parirenyatwa Hospital.

The appellant and co-accused were however arraigned for a disciplinary hearing before a Disciplinary Hearing Committee on the 3rd August 2011.  The body found the accused and co-accused had a case to answer and recommended they be charged with an act of misconduct.  The two were later found guilty by the Disciplinary Authority on the charge of breach of paragraph 9 of the First Schedule Section 2 of the relevant code that is “theft of, making improper or unauthorised use of State property”.  Their appeal under the provisions of the code to the Health Services Board against determination and penalty was dismissed through a letter dated 31st January, 2012.  The appellant was aggrieved and noted his appeal to this court.

The appellant having filed his appeal on the 4th of January, 2013 almost a year after the Board’s determination, Respondent in opposition papers took a point in limine that the appeal having been noted out of time and in the absence of an application for condonation should be dismissed.

At the hearing of the matter, Appellant made oral submissions in respect to condonation.  He submitted that the delay had been occasioned through his failure to receive the minutes of disciplinary proceedings on time.  He further submitted that as he had been acquitted by the magistrates court in September 2011 he thus had good prospects of success on appeal.  The respondent was opposed to the granting of the application.  It was submitted on its behalf that the appellant was being less than candid with the court.  Even if he had received the disciplinary minutes in January 2014 that would not explain why he had filed his appeal in June 2013 without any minutes.  It was respondent’s further submissions that the appellant had poor prospects of success on appeal.  Even though he had been acquitted in the criminal court because of the failure on State’s part to call for evidence of a witness from respondent to adduce evidence on the ownership of the property found in appellant’s possession. It was the Respondent’s submission the Appellant had been properly found guilty on the charge in the disciplinary proceedings.  The respondent had conducted its own independent investigations and established that the property found in his possession did belong to the respondent. Such evidence was tendered before the disciplinary proceedings and remained uncontested. In the circumstances the court was urged to dismiss the application for condonation.

The factors which the court take into account in an application for condonation for non-compliance with the Rules were set out in Bishi vs Secretary for Education 1989 (2) ZLR 240 (H).  These are;

Degree of non-compliance with the Rules.

the explanation thereof.

Prospects of success on the merits

the importance of the case.

The convenience of the court; and

The avoidance of unnecessary delay in the administration of justice.

It is clear that in casu the extent of delay being over a year is inordinate.  The explanation tendered by the appellant for failure to file appeal on time is not convincing.  On prospects of success it clear that the appeal has been noted on the sole ground that due to Appellant acquittal by the magistrates court on criminal charges the Disciplinary Authorities ought to reverse their determination and penalty.  It is trite that disciplinary proceedings being civil proceedings in nature the burden of proof is always on a balance of probabilities rather than on proof beyond a reasonable doubt as in criminal proceedings.  The record of disciplinary proceedings clearly shows that the respondent did establish the charge that levelled against the appellant on a balance of probabilities.  The Appellant failed to disprove the Respondent assertion that he was found in possession of hospital property. There are clearly nil prospects of succeeding on appeal.  The application for condonation has no merit.  I accordingly dismiss the application with no order as to costs.