Farai Govere v Judicial Service Commission

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/H/128/2013
HELD AT HARARE ON 02 FEBRUARY, 2013                  CASE NO. LC/ H/357/2011
In the matter between



FARAI GOVERE                                           –           Appellant
And

JUDICIAL SERVICE COMMISSION                            –           Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - In person
For Respondent     - Ms S. Chihuri(Civil Division)


MATANDA-MOYO, L.


      This matter had been initially set down in terms of rule 19(3) (a) of this

court’s rules. Respondent had not filed heads of argument. Appellant filed his

heads of argument on 27 August 2012. Respondent only filed its heads of

argument on 27 March 2013. Appellant had not served his heads of argument

upon the Respondent.      Respondent is according not barred.          Both parties

consented to arguing the matter on the merits and I proceeded to hear their

submissions on the merits.



      This is an appeal against Respondent’s decision to dismiss Appellant from

employment for acts of misconduct.        The brief facts are that Appellant was

employment by the Respondent as a clerk of court based at Murambinda
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Magistrate Court. On the 28th of January 2011 Appellant was charged with the

following offences;



       1)contravening paragraph 8 of the First Schedule to the Public Service

Regulations SI1/2000 as read with the Judicial Service (Transitional) Regulations

2010, that is to say theft of or failure to take reasonable care of or to account

for,   or making improper or unauthorized use of public monies and or

alternatively contravening paragraph 24 of the first schedule (section 2) of the

Public Service regulations that is to say, any         act or omission which is

inconsistent with or prejudicial to the discharge of official duties, including

abuse of authority, in that Appellant on 24 November 2010 received $10-00

from Knowledge Makiwa for revenue stamps required for processing summons

commencing action. Appellant did not issue such Knowledge Makiwa with a

receipt for the money and instead converted it to his own use. Appellant was

supposed to bank the money on 25November 2010 and prejudiced the state of

$10-00.



       He appeared before a disciplinary committee. The disciplinary committee

found that there was no evidence on a balance of probabilities proving the

offence of theft. However the committee found that Appellant was guilty of any

act which was inconsistent with his duties.        He was found guilty on the

alternative charge. The committee recommended that Appellant be warned and

cautioned and transferred to another province and that member should bear

the cost of the transfer. The Disciplinary Authority in total disregard of the

Disciplinary Committee’s findings and recommendations found the Appellant

guilty of “all 5 counts of misconduct as charged” (see page 18 of the record ) . The


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Disciplinary Authority ordered Appellant’s discharge from the service with effect

19January 2011.



      Aggrieved by that determination Appellant noted an appeal to this court

on the following grounds;

      1) That the Disciplinary Authority erred in finding the Appellant guilty on

         5 counts of misconduct as charged when Appellant was only charged

         with a single act of misconduct. The determination is thus defective in

         its entirity

      2) The Disciplinary Authority erred in finding the Appellant guilty of theft

         when there was no evidence supporting the charge.

      3) The Disciplinary Authority erred in failing to give adequate notice to

         the Appellant to appear before a hearing. Appellant was informed on

         a Friday 20 May 2011 to appear for a hearing on Monday 23 May 2011.

         Appellant could not as a result get legal representation. Appellant was

         thus denied his right to a free and fair trial.

      4) The Disciplinary Authority erred in convicting Appellant without the

         evidence of knowledge Makiwa. There was therefore no proof beyond

         a reasonable doubt that Appellant committed the acts of misconduct.

      5) That the Disciplinary Authority erred in proceeding to hear the matter

         when there was a criminal matter pending regarding the same issue.

         Respondent violated the principle that the matter was sub-judice.

      6) That the penalty of dismissal was excessive and severe in the

         circumstances. The amount involved was only$10. Appellant had not

         been inducted into the position and was not aware that his action

         amounted to a misconduct.


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          Appellant prayed that the conviction and penalty be set aside and that

          he be reinstated to his former position without loss of salary and

          benefits.



          Firstly Appellant submitted that he was never charged with 5 counts of

misconduct and the determination could not stand.                      Respondent’s counsel

conceded that Appellant could only be convicted on one count of misconduct

and not 5 as he had not been charged with 5 counts of misconduct. Such

concession was properly made. It is true that the determination and the record

of proceeding do not tally. As such the determination is fatally defective. It is

not the function of the court to cure such defects and substitute conviction and

penalties.



      The Disciplinary Authority on page 18 wrote to the Appellant on her

findings. She wrote;
      “Please be advised that the Disciplinary Authority after careful consideration of evidence and
      all documents pertaining to your misconduct charges, has determined in terms of Section
      46(1)(b) of the Public Service Regulations, 2000 as read with the Judicial Service Commission
      (Transitional) regulation 2010 that you be found GUILTY of all 5 counts of misconduct as
      charged.”


      It is common cause Appellant was charged with theft. The offence of

theft was not proved and it is clear from the recommendations to the

Disciplinary Authority that there was no such proof. The Disciplinary Authority

does not say how she arrived at such a determination and I have no option but

find that she erred in convicting Appellant of theft without evidence proving

such offence.



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      It is also common cause that Appellant was not charged with 5 counts of

misconduct. He was charged with one. It was a misdirection to find Appellant

guilty of 5 counts of misconduct when Appellant was never charged with 5

counts of misconduct. It is settled that one can not be convicted of misconduct

not charged.



      Accordingly the convictions and the penalty of dismissal cannot stand.

Once I have made the above findings it is not necessary to deal with the other

grounds of appeal raised.

      Accordingly the appeal succeeds and the decision of the Disciplinary

Authority is hereby set aside with no order as to costs.




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