Golden Mashakada v Marondera Provincial Hospital & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/370/16
HELD AT HARARE 13 JANUARY 2016
CASE NO
JUDGMENT NO LC/H/370/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/370/16

HELD AT HARARE 13 JANUARY 2016				CASE NO LC/H/664/15

& 10 JUNE 2016

GOLDEN MASHAKADA				Appellant

MARONDERA PROVINCIAL HOSPITAL		1st Respondent

PERMANENT SECRETARY – MINISTRY OF		2nd Respondent

HEALTH & CHILD CARE

Before The Honourable G Musariri, Judge

For Appellant			Mr K Masasire, Attorney

For Respondents		Mr J Mumbengegwi, Officer

MUSARIRI, J:

Appellant’s attorney summarised the grounds of appeal in triplicate thus;

The Health Services Board (HSB) erred in failing to find that the charges against appellant were not proven.

HSB erred by imposing a penalty not provided for by the Health Service Regulations.  (The attorney did not bother to cite the Regulations ‘ reference numbers).

HSB erred in failing to find that the dismissal was unreasonable and irrational.

Respondents opposed the appeal.

Whether the charge against appellant was proved?

Appellant was charged by way of a letter dated 21 March 2012.  The relevant part proclaimed that,

“There was a discrepancy on receipt No 172100 brought by a client Juliet Chiremba.  The original receipt by the patient had $302.00 and the duplicate had $5.00 and the $5.00 was recorded as payment for CD4, both receipts had the same receipt number and both beared your signature as confirmed by witnesses interviewed in the investigation on 20 March 2012.  The witnesses told you about the discrepancy but you went on to assist the patient ignoring the discrepancy which is against Treasury Instructions.”

Filed of record is a statement dated 20 March 2012 made by appellant’s subordinate named as Bwerezani.  The vital part recounted that,

“The client came with the receipt later.  What I saw on the receipt was that

The receipt number was 172100.

Amount written was $302.00

The receipt was made by Mashakada

The receipt number was authentic but amount of duplicate was CD4 $5.00.  Actual receipt $302.00

Mashakada assisted the clients alone.”

However the receipts went missing.  They were not shown to appellant.  Neither were they produced at the disciplinary hearings.  It is on the basis of their non-production that appellant argued that the charges were not proved.  Does Bwerezani’s statement by itself prove the allegations?  I think not.  Her statement needed corroboration by the receipts, original or duplicate copies.  Appellant denied falsifying any record.  Short of his admission that he authored the receipts there is no documentary proof of the fraud.  Cases of this nature are proven through the receipts.  Without the same, Bwerezani’s statement is insufficient and it cannot support the guilty verdict passed.

All in all I find that the appeal has merit and must succeed.

Wherefore it is ordered that;

The appeal be and is hereby allowed;

a)	Respondents shall reinstate appellant without loss of salary benefits.

b)	If reinstatement is untenable, respondents shall pay appellant damages in

lieu of reinstatement in a sum either agreed by the parties or assessed by this court.

G MUSARIRI

J U D G E