Gift Nyanhete v Ministry of Education Sport and Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/616/2013
HARARE, 22 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	               JUDGMENT NO. LC/H/616/2013

HARARE, 22 OCTOBER 2013	    		   	   CASE NO. LC/H/483/2012

AND 22 NOVEMBER 2013

In the matter between

GIFT NYANHETE							Appellant

And

MINISTRY OF EDUCATION SPORT				Respondent

AND CULTURE

Before The Honourable E. Muchawa, Judge

P. Muzofa, Judge

For Appellant 	-	Mr Katsuro (Legal Practitioner)

Respondent		-	Ms C Saruwaka (Law Officer)

MUZOFA J.;

This matter comes before this Court as an appeal against Respondent’s decision to convict and dismiss the Appellant from its employment.

The Appellant was employed by the Respondent as a primary school teacher at Chakoma Primary School.  According to the Respondent on the 2nd of May 2005 the Appellant visited the two complainants’ residence where they lived with their parents between 7 pm and 8 pm.  At the time the complainants were about to have their supper.  Appellant helped himself to a piece of meat.  Thereafter he indecently assaulted the two complainants.  The two complainants immediately reported the matter.  The Appellant was subsequently charged under the Public Service Regulations of 2000 and on the 14th of May 2008 the Disciplinary hearing was held.  On the 6th of June 2012 the outcome was communicated to the Appellant.  Appellant was found guilty and a penalty of dismissal meted out.  The matter was also reported to the police; Appellant was prosecuted and found guilty on a charge of indecent assault.

The Appellant dissatisfied by the outcome filed an appeal to this Court on the following grounds:-

The Disciplinary Authority erred at law and misdirected herself by finding that the Appellant had committed the alleged misconduct.

The Disciplinary Authority erred and misdirected herself at law in holding that the Appellant had committed the alleged misconduct whereas there was no substantial evidence linking the Appellant to the alleged misconduct.

The Disciplinary Authority erred at law in relying on inferences and assumptions and insubstantial evidence to come up with her determination and penalty.

The Disciplinary Authority also made a glaring error and misdirected herself in the interpretation of the conviction and sentence of the Appellant by the criminal court since Appellant was never sentence (sic) to five years in prison.

The Disciplinary Authority erred at law in ordering the harshest penalty of discharge considering the gravity of the offence and the circumstances under which it is alleged to have been committed.

The Disciplinary Authority fatally erred at law in failing to take into account the mitigating factors submitted to it by the Appellant in passing on the penalty.

My reading of the grounds of appeal shows that the Appellant is challenging the following aspects of the Disciplinary Authority’s decision.

That there was insufficient evidence to sustain a conviction.

That the criminal conviction was inappropriately interpretated.

That the penalty was too harsh and no consideration was made of the mitigation.

I will deal with the issues in turn.

Sufficiency of evidence.

The Appellant denied the allegations.  His version was that he passed through Mr Mazhambe’s place, being the complainant’s parents.  The parents were not there.  He found the children about to have their supper.  He picked a piece of meat from one plate and the complainants wrestled the meat from him.  He did not indecently assault them by touching their breasts.  Appellant alleged the evidence against him was fabricated by one Mrs Masiiwa who wanted to settle a score with him.  On behalf of the Appellant it was submitted that the Disciplinary Authority relied on circumstantial evidence and the Court was referred to the cases of the State v Christopher Kuruneri HH59/07 and S v Marange and Others 1991 (1) ZLR 244 (SC).  The cases articulate how Courts should deal with circumstantial evidence.  However the issue of circumstantial evidence is not applicable in this case.

I donot believe the Disciplinary Authority totally relied on circumstantial evidence.  There was evidence from Talent Nengomasha who gave direct evidence of what transpired and what they did immediately after the incident.  There was also evidence from the persons that they immediately reported to one Mr B.T. Kapishe, Mr Choga and Mrs Masiiwa.  These witnesses’ evidence was that around 8 pm on the 2nd of May 2005 the two complainants approached them albeit separately reporting that the Appellant had indecently assaulted them.  The witnesses’ account on how the offence was committed was similar.  Mrs Masiiwa who was responsible for Guidance and Counseling at the school actually noted that at the time of reporting to her the complainants looked very much afraid.  I donot know what the inferences referred to by Counsel for Appellant could come from.  There was direct evidence implicating the Appellant.  Which was way beyond a balance of probabilities.  There was sufficient evidence and therefore grounds of appeal 1, 2 and 3 cannot succeed.

The Criminal Conviction.

Counsel for the Appellant submitted that the Disciplinary Authority relied on the conviction against the Appellant which conviction was appealed against.  As stated before there was adequate evidence against the Appellant.  In any event from the Disciplinary Authority’s record of proceedings there is no evidence that there was reliance on the criminal conviction.  To that extent Section 31 (4) (a) of the Civil Evidence Act [Chapter 8:01] is not applicable in casu.  It was not disputed that Appellant had noted an appeal against the conviction but the moot point is that even taking away the criminal conviction there was enough evidence to show that Appellant committed the offence beyond a reasonable doubt.  This ground of appeal also fails.

Mitigation and the penalty.

Counsel for the Appellant submitted that the Disciplinary Authority failed to consider mitigation and eventually imposed a wrong penalty of dismissal.  It is unclear what point counsel wanted the Court to appreciate.  I say so because the ground of appeal 5 claims the mitigating factors submitted were not considered but in his oral submission he alleged Appellant was not invited to address in mitigation.  The Court is unable to deliberate on this issue in light of this conflict, whether there was an address in mitigation or not.

Counsel argued that the penalty was too harsh in that there was a scuffle over the piece of meat and in the process there was “fondling” which cannot be said to be intentional or premeditated.  This is not what the evidence showed.  The evidence showed that Appellant grabbed the first complainant’s hand, pressed her against the wall and fondled her breasts.  The second complainant entered the house trying to rescue the first complainant she was also pushed against the wall and her breasts were fondled.  This scenario was not a scuffle for meat at least it could be described as a scuffle where complainants were trying to resist the Appellant.  Going by the evidence the case is not as inconsequential as described by Counsel for the Appellant.  For the Respondent it was argued that this was a serious offence particularly in that as a teacher the Appellant was in loco parentis of the two complainants.  Appellant was a teacher at Chakoma Primary School and was aware that the two complainants were minors.

Appellant was aware that the two complainants were school going children and had a duty towards them.  His conduct was indeed one which would be described as “improper association with minors at any time or place in a manner or circumstances likely to bring the Public Service or any part thereof into disrespect or disrepute.”

In terms of Paragraph 7 of the First Schedule of the Public Service Regulations of 2000.  The Regulations donot necessarily require that the minor should be at the school that the teacher is teaching.

It is within an employer’s prerogative to determine the penalty to impose after a consideration of all the factors.  It is an accepted principle of our law that a dismissal does not automatically follow from any minor infraction of the law.  The misconduct or omission envisaged must be such as is serious enough to terminate the contractual relationship between the employer and employee.  It should go to the root of the relationship (Zimpak v Tawanda Mugarabi SC 196/94).  In this case the Appellant’s conduct indeed went to the root of the employer employee relationship.  As a teacher his conduct is expected to be beyond reproach especially when dealing with minors.  I am not persuaded by the Appellant’s counsel that he should have been given a penalty other than dismissal.  The penalty was appropriate in the circumstances.  This ground of appeal also fails.

It was also argued by Appellant’s counsel that the matter took place in 2005, the Disciplinary Hearing was conducted in 2008 and the outcome communicated to Appellant in 2012 the delay was too much and was enough punishment.  However there was no indication what sort of prejudice was suffered.  It is trite law that where a procedural irregularity is alleged it must be shown what prejudice was occasioned on the Appellant see Nyahuma v Barclays Bank SC 67/05.  The Court was referred to some criminal cases dealing with delays in executing the death penalty.  I think the cases are not applicable in this case.  The Appellant was not on suspension he continued to work and was receiving his salary from 2005 until 2012.  If anything the delay worked to his advantage.  On the merits it is clear that the Appellant committed the offences alleged, he cannot surely take advantage of the procedural irregularities.  This Court subscribes to the Air Zimbabwe Pvt Ltd v CD Chiku Mensa & Mavis Marweye SC 89/04 case that a guilty person should not escape punishment on the basis of failure to conduct proceedings properly but because he is innocent.  I must say though the Respondent handled this matter in a slapdash manner reflecting lack of diligence on its part which may end up interfering with the proper administration of justice where guilty persons are set free.

As noted above all the grounds of appeal have no merit.

Accordingly the following order is made.

The appeal be and is hereby dismissed.

Each party to bear its own costs.

……………………………………………..

Muzofa, J

…………………………………………….. I agree

Muchawa, J

Zimbabwe Labour Centre – Appellant’s Legal Practitioners

Civil Division – Respondent’s Representatives