Farai Munyenyiwara Murakwani v Minister of Primary & Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MS/20/16
HELD AT MASVINGO 22 MARCH 2016
CASE NO
JUDGMENT NO LC/MS/20/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MS/20/16

HELD AT MASVINGO 22 MARCH 2016			CASE NO LC/MS/48/15

& 13 MAY 2016

In the matter between:

FARAI MUNYENYIWA MURAKWANI				Appellant

And

MINISTER OF PRIMARY & SECONDARY EDUCATION	Respondent

Before The Honourable L Hove, Judge

For Appellant			Mr C Ndlovu (Legal Practitioner)

For Respondent		Mr N Muzuva (Civil Division)

HOVE, J:

The appellant in this case was employed as a teacher by the respondent.

He was accused of having proposed love to a school girl and sexually harassing the girl who was doing form 4 at Chikwira High School.

The appellant was charged in terms of section 44 (2) as read with paragraph 7 of the first schedule (section 2) of the Public Service Regulations.

The appellant was found guilty and he was dismissed from the service.

He appealed to this court and the grounds of appeal against conviction where that:

The evidence on sexual harassment was Fungai Mambera’s word against the appellant’s.  The respondent should have desisted from applying the boxing ring approach.  In any event Fungai Mambera’s evidence was not credible at all.

The respondent erred in finding that the appellant apologised for sexually harassing Fungai Mambera.

The grounds of appeal against sentence where that

The (appellant) respondent erred in dismissing the appellant in view of the

following mitigatory features:

Appellant is a first offender

Appellant has a family to look after

Teaching was appellant’s source of income.

The facts of the matter were that the appellant left his wife in Gutu and came back for holiday duties during school holidays.  He allegedly went to the school child’s residence and whistled.  The child noted that it was the appellant who was whistling.  The appellant later approached the school child’s residence and asked for his biology book.  The minor indicated that he should go into the house and search for it.  He did not find it and the minor said he had to come back later in her brother’s presence.  He went away.

Later around 4 pm the appellant approached the minor’s residence and said he was going to search for network.  Later the appellant called the minor and the minor asked her brother’s wife if she could go and after receiving permission, she went to see the appellant.

The minor then alleged that the appellant told her not to tell anyone what he was saying.  He told her that he loved her, the minor said it was not possible as he was a married man.  She went back home.

Later the appellant came back and chatted with the minor’s brother.  After a few minutes, he came and sat close to the minor saying that he was feeling cold that is when he showed the minor his tablet which had a message saying that he wanted to see her at the bathroom and he left.  The minor told her brother who allowed her to go and see him.  When the minor went the appellant told her that he wanted to have sexual intercourse with her.  The minor stated that she was going back home to wear a trousers and the brother who was by now suspecting that the appellant was up to no good instructed her to go.  The brother’s wife and Mr Bingudza followed behind the minor.  When the appellant realized that the minor was coming back with other persons, he ran away.

A few days later he went and apologised to the minor’s brother in the presence of his wife and Mr and Mrs Bingudza.

The minor testified during the disciplinary proceedings. Mr Mambera the minor’s brother, Mr Bingudza, Mr Mavandudza and Oliver Chitiga all testified before the disciplinary committee and corroborated the minor’s evidence in all aspects.

The first ground of appeal that the evidence on sexual harassment was the minor’s word against his is clearly untrue and unsupported by the evidence on the record.

There is no merit what so ever in this ground.

The second ground of appeal is also meritless.  It alleges that the Disciplinary Committee erred in finding that the appellant apologised.   Evidence on record shows that appellant apologised in the presence of the witnesses who testified to that effect.  There was clear evidence to this effect and the allegations of any erring on the part of the disciplinary committee in this regard are baseless.

Whether or not the minor’s evidence was credible was an issue that seized the disciplinary committee who were and are still the best persons to have assessed and made findings on the minor’s credibility.

This court, sitting as an appellate court, cannot easily interfere with findings of fact made by the trial tribunal.

This court can only upset the findings of fact by the disciplinary committee if it can be established that the disciplinary committee, in the exercise of its discretion, was irrational considering the evidence placed before it.

See the case of Hama v NRZ 1996 (1) ZLR 664.

Tirivangana v University of Zimbabwe SC 21/13.

In this case no allegations of gross irrationality has been made and indeed the conclusions of facts reached by the committee are supported by the evidence of the witnesses who testified on record.

The position of law is quiet clear and it is also trite that in general, in finding facts and making inferences, in a civil case, the court may go upon a mere preponderance of probabilities although in so doing the court may not exclude every reasonable doubt.

In criminal cases, every fact material to establish the guilt of an accused must be established by proof beyond a reasonable doubt and inference from facts must, in order to be permissible, be such as to leave no reasonable doubt of their correctness.

This is not so in civil matters where one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even when that conclusion is not the only reasonable one.

See in this regard Ebrahim v Pittman N O 1995 (1) ZLR 184 (H).

Govan v Skidmore 1952 (10 SA 732.

It is for the above reason that I agree with the respondent’s representative that there was enough evidence on the record to support a finding of guilty and find that the grounds of appeal are without merit.  The appellant ought not to have embarked on this appeal in the first place.  His lawyer ought to have advised him properly.

The issue of penalty

Again the mitigatory factors are clearly outweighed by the aggravatory factors.  The appellant sought to improperly associate with a minor and in so doing breached his duty to act as guardian over the minor who was a school child.  He acted in a manner which was inconsistent with the implied conditions of his conditions of employment.  As a teacher he had a duty to ensure the safety and wellbeing of all children put under his care.

The penalty was therefore justifiable under the circumstances of this case in any event the employer has a discretion in matters of sentencing and can dismiss once they take a serious view of the act of misconduct committed by an employee.  An appellate court such as this one cannot interfere with such discretion unless it was established that the employer acted unreasonably.

See in this regard the following cases

Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03

Toyota Zimbabwe v Posi SC 55/07

Innscor Africa (Pvt) Ltd v Letwin Chimoto SC 6/12

Treggers Plastics (Pvt) Ltd Woodreck v Sibanda & Anor SC 22/12

Mashonaland Turf Club v George Mutangadura SC 5/12

I accordingly find that the appeal against sentence is also meritless and must fail.  In the result the following order is made;

The appeal be and is hereby dismissed with costs.

Messrs Ndlovu & Hwacha, appellant’s legal practitioners

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