Hazvinei T. Vambe v The Principal Director of Immigration

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/744/2014
HARARE, 3 SEPTEMBER 2013
CASE NO LC/H/298/2012
JUDGMENT NO LC/H/744/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/744/2014

HARARE, 3 SEPTEMBER 2013 &		         CASE NO LC/H/298/2012

7 NOVEMBER 2014

In the matter between

HAZVINEI T. VAMBE						APPELLANT

Versus

THE PRINCIPAL DIRECTOR OF				RESPONDENT

IMMIGRATION

Before The Honourable B T Chivizhe  :    Judge

For the Appellant	      E H Mugwadi    (Legal Practitioner)

For the Respondent   Ms M Chimombe  (Legal Practitioner)

CHIVIZHE J:

The matter was set down for hearing on the 3rd of September, 2013. At the end of proceedings the parties were directed to file supplementary heads on an issue that had arisen in the course of proceedings. The parties having filed the supplementary heads of argument the file was referred back to me by the Registrar on the 1st September, 2014. The following is my judgement on the merits of appeal.

The material background facts are as follows:

The Appellant was employed by the Respondent as an office orderly. She was arraigned before the disciplinary authority facing a charge of contravening section 44 (2) as read with paragraph 7 and 24 of 1st of the Public Service Regulations 2000 as amended viz:

Unbecoming behaviour likely to bring the department`s name into disrepute.

Any act or omission which is in-consistent with or prejudicial to the discharge of official duties including the abuse of authority.

The allegations were that on the 3rd of January 2012, the Appellant had been assigned specific duties to sort out passports confiscated from travellers at Beitbridge Border post. In the course of her duties she met one, Ms Abigail Chivere who was looking for her passport that had been withdrawn from her by an Immigration Officer at Beitbridge. It was Respondent’s allegation that Appellant had facilitated the return of Ms Chivere’s passport upon payment of US $15 as a bribe and further that Appellant had been working in cahoots with a fellow Office Orderly, Miss Emmaculate Chakwara who had received the money from Ms Chivere and forwarded it to the Appellant.

Before the Disciplinary committee Appellant denied soliciting for the money or exerting any form of pressure on Chivere to pay her rather it was her submission that Chivere through her kindness had offered the money as a token of appreciation to her for the services rendered. The Disciplinary Committee found the Appellant guilty on both charges and recommended to the disciplinary Authority that Appellant be Discharged from service in terms of Section 50 (1) (a) of the Regulations. The Disciplinary Authority on the 3rd of April, 2012 confirmed the conviction and imposed the penalty of discharge from service with effect from 05 April, 2012. The Appellant aggrieved then noted the present appeal with the Labour Court.

The appeal has been noted on the following grounds of appeal:

GROUNDS OF APPEAL

The disciplinary authority erred and misdirected itself at law in holding that the Appellant accepted a bribe when there was no independent evidence to prove the alleged fact.

The disciplinary authority erred and misdirected itself at law in not accepting that the money US$15-00 was given to the Appellant as an appreciation not a bribe.

The disciplinary authority also erred and misdirected itself in law in accepting the evidence that the Appellant exerted pressure on the complainant when in actual fact there was no such pressure exerted on her.

The disciplinary authority erred and misdirected itself at law in failing to consider that the complainant had indeed visited the Compliance office first who could have advised her where recovered lost passport were stored resulting in her approaching the Appellant with her passionate request.

The disciplinary authority also erred and misdirected itself at law in imposing the stiffest penalty when the Appellant did not even receive and benefit from the US$15-00 in question.

The Appellant under the first ground of appeal submitted that the Disciplinary Authority erred in reaching the conclusion that she had accepted a bribe in the absence of any independent evidence to prove that. It is the Appellant’s contention that the Disciplinary Authority seemed to rely solely on the evidence of Ms Chivere were the disciplinary committee ought to have called for further evidence for an example from her colleague, Miss Emmaculate Chakwara. Further it is the Appellant’s contention that the Disciplinary Authority erred in concluding that the money i.e US $15-00 was given as a bribe and not as a token of appreciation.

The record of disciplinary proceedings before the disciplinary committee shows that the witness Mrs Chivere gave evidence. Her evidence was that she had met the Appellant on the 5th of January, 2012. Appellant had facilitated the recovery of her passport. She had therefore requested for payment from the witness. The Appellant had also given the witness her cellphone number to phone in the evening. When the witness called the phone had been answered by the Appellant’s husband. Appellant had later called personally. The next morning the witness had again called the Appellant who had told her told to collect the passport from Mrs Emmaculate Chakwara which she did. It was the witness’s further evidence that she had later demanded for her money back from Appellant. The Appellant had later phoned the witness to confirm the position with the witness. The Appellant was given an opportunity to cross-examine the witness. She queried the submission by the witness that she had demanded a bribe of US $15-00. The witness however restated that Appellant had demanded US $15-00 as payment for the service rendered on two occasions.

The Disciplinary Committee found the Appellant guilty on the charges on the basis of the evidence of the witness Ms Chivere. The Appellant’s submission is that the Disciplinary Committee erred in so relying on the sole evidence of witness. I am satisfied that the disciplinary Committee did not err in this regard. The witness’s evidence which remained largely uncontested was that the Appellant had facilitated recovery of her passport. The Appellant had then demanded money. The witness in the hearing confirmed the money had been demanded as a bribe rather than a token of appreciation for services rendered. It is clear that the witness who was not known to the Appellant could not have fabricated evidence against the Appellant. She would clearly have no motive for raising false allegations against the Appellant. In any event even if the Appellant claim were to be accepted that money was given as a token of appreciation as submitted by the Respondent the employer’s policy did not allow employees to be paid or to receive tokens of appreciation. I am satisfied on the basis of facts and the evidence in the record the Appellant was properly convicted on both charges.

The Appellant in her grounds of appeal has also challenged the imposition of the highest penalty i.e discharge from service where the facts show that she did not benefit from US$ 15-00 tendered by the complainant. The Respondent’s submission is that the penalty was warranted considering that the charges levelled were very serious charges. The Appellant and her accomplices had devised a scheme to rip off innocent persons of their cash by demanding bribes in return for services rendered. Their actions were clearly inconsistent with their duties. Their actions would also bring the good image of department into disrepute. I agree entirely with the Respondent position. The penalty of discharge from service was clearly warranted in the circumstances of this matter.

The Appellant during the course of hearing contended that the Appellant had been denied the legal right to examine and cross-examine Mrs Magagani and Mrs Chakwava her colleagues whose evidence the Disciplinary Committee had also relied on to found conviction. It was Appellant’s contention that on the basis of the provisions in the preamble to Statutory Instrument 162/2007, the basic tenets of natural justice had to be applied in this case and Appellant allowed to examine and cross-examine the two witness. Even if it was to be argued that Statutory Instrument 162/2007 was not applicable then on the basis of Section 45 (2) of the Public Service Regulations Statutory Instrument 1/2000 the Disciplinary Committee would still have allowed Appellant an opportunity to challenge the evidence that was used against her.

The Respondent position in Supplementary Heads of Arguments submitted that Statutory Instrument 162/2007 was inapplicable to the present matter. The regulations were made to provide conditions of service for members of the Commission Secretariat whereas Statutory Instrument 1/2000 provides for conditions of service for members of the Public Service. The Respondent further submitted that as Appellant was not a member of the Commission Secretariat but was a member of the Public Service her conditions of service were governed by Statutory Instrument I/2000 and not Statutory Instrument 162/2007. It was Respondent further contention that on the basis of the decision in Chataira v ZESA 2000 (1) ZLR 30, the Respondent had no right to cross examine the evidence of Magagani and Chikwara which the Disciplinary Committee may have relied on.

It is clear on an examination of the two Regulations that the Respondent raises a valid point that the Regulations in Statutory Instrument 162/2007 were not applicable to this matter. The Appellant being a member of the Public Service, the Public Service Regulations Statutory Instrument I/2000 were clearly applicable to her case. Section 45 (2) of those Regulations however provides as follows:

“(2)	The hearing shall be conducted without the need to observe the rules of procedure and evidence ordinarily applicable in criminal or civil proceedings, provided, however, that the member concerned is afforded the opportunity to respond to every allegation of misconduct and that substantial justice is done.”

On the basis of the provisions in Section 45 (2) of the Regulations the member is entitled to be granted an opportunity to respond to the allegations. The Disciplinary Committee is also entitled to ensure substantial justice is done. The Appellant’s position is that she ought to have been allowed (on basis of Section 45 (2)) to challenge the evidence of her colleagues relied upon by the Respondent.

If indeed the Disciplinary Committee relied on the evidence of the other two witness i.e Mrs Magaganga and Mrs Chakwava to found conviction then on the basis of the Chataira vs Zesa 2001 ZLR 30 (H) (5-83-01) the disciplinary Committee had no obligation to call them. In the Chataira case the court held that if the employee wishes to cross-examine persons who would have authored reports used during the hearing he should point out to the disciplinary committee why these persons should be called so that he can cross-examine them. If the employee fails to have the author of a report called so that he can cross-exam him and give reasons why he wants to cross-examine the author the disciplinary committee  has no obligation to call the witness to be cross-examined. In casu the Appellant has not alleged that she did request for the two witnesses to be called in order for her to cross-examine them. Indeed the record does not reflect that she made that request. The Respondent clearly had no obligation to call the two witnesses.

Further there was in my view no need to call for further evidence after Ms Chivere’s evidence. Her evidence clearly shows Appellant solicited $15 from her in return for the return of her confiscated passport.  There was also no need for the employer to have also established the fact of the collusion between the three in order to found conviction on the charges. The appellant was charged alone and the Disciplinary Committee on the basis of the largely uncontested evidence from Ms Chivere established the charges. The defence raised that the witness had given the money to her as a token of appreciation was properly rejected by the Disciplinary Committee as improbable. Her conduct was clearly inconsistent with her duties. Her actions would also bring the good image of the department into disrepute.

The appeal stands to be dismissed as I hereby do.

E H Mugwadi Associates, appellant’s legal practitioners

A G‘s Civil Division, respondent’s legal practitioners