Henry Man'oro v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/154/13
HELD AT HARARE ON 7 MAY 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMABABWE		JUDGMENT NO. LC/H/154/13

HELD AT HARARE ON 7 MAY 2013			CASE NO. LC/H/686/10

In the matter between:

HENRY MAN’ORO				-		Appellant

And

PUBLIC SERVICE COMMISSION		-		Respondent

Before the Honourable President, E.F. Ndewere

For Appellant			-		Mr E. Mangezi (Legal Practitioner)

For Respondent			-		Mr R.M. Basera (Legal Practitioner)

NDEWERE E.F.:

The Appellant was a school teacher at Domboremavhu Secondary School in 1997 and during that period, he was charged for having an improper association with a school pupil, convicted and discharged from the teaching service on 22 May, 1998.  He appealed to the Labour Court but before the appeal was heard, the Commission referred the case for a magisterial inquiry which was conducted from 7 June, 2009 to 9 June, 2009.  During the inquiry, the Appellant and the pupil both denied that they had an improper association.  The Appellant’s evidence during the inquiry was that he was being framed.  At the end of the inquiry, the ruling was that there was insufficient evidence to prove that an improper association existed between the Appellant and the girl in question.  As a result, the Appellant who had been suspended was reinstated as a teacher with effect from 22 May, 1998.

Sometime in 2003, the Public Service Commission obtained new evidence confirming the existence of an improper association between the Appellant and the same pupil in the form of an agreement the Appellant entered into with the pupil’s aunt, where he admitted having had sexual relations with the pupil and agreed to pay “damages” in the amount of $5 000.00 with the first instalment of $2000.00 being paid in December, 1998.  The Commission also obtained letters which the Appellant had written to the former pupil, confirming the existence of a relationship.

Armed with this evidence, the Ministry of Education wrote to the Appellant who was now stationed at Assisi High School on 12 September, 2003, charging him for giving false evidence under oath in terms of the Public Service Regulations.  A hearing was conducted on 26 October, 2004.  During the hearing, the Appellant admitted signing the agreement with the pupil’s aunt and he also admitted writing the letters to the pupil.  The Appellant was found guilty and discharged from the service.  He challenged the decision internally, without success and now he has appealed to the Labour Court.

The Appellant’s grounds of appeal are as follows:

The Commission erred by upholding the decision of the Ministry of Education when such Ministry sought to review the decision of the Masvingo Magistrates Court without following the necessary procedures.  The Ministry if aggrieved by the decision of the Magistrates Court should have sought for a review or should have appealed against the decision and before the hearing should have applied to lead fresh evidence that was not available before the Magistrates Court.

The Ministry sought to impugn the evidence of the witnesses before the Magistrate Court without recalling them to give evidence.

The Appellant suffered double jeopardy by being tried twice for the same offence.

As far as ground of appeal one is concerned, the Appellant must have accepted the Respondent’s assertion in the Heads of Argument that the Commission acted properly in terms of Section 51 of the Public Service Regulations Statutory Instrument 1 of 2000 which allows it to review decisions of Disciplinary Authorities under the Commission if there is an application for the review because the Appellant never addressed this issue during oral submissions.  Indeed the Commission did not err in any way.  The Appellant applied for a review and on review the Commission upheld the Ministry of Education’s decision to discharge the Appellant from service.

As regards ground two of the appeal, Appellant’s counsel later conceded that there was no need to recall any witnesses because the issue was whether the Appellant had given false evidence at the 1998 inquiry or not.  The Appellant admitted the new evidence in the form of an agreement with the pupil’s aunt that he had seduced the pupil and was willing to pay $5 000 as damages.  That admission in the agreement was sufficient to show that the evidence which the Appellant gave in the 1998 inquiry denying any improper association with the girl was false.  In addition, the Appellant made an affidavit in which he confirms the improper association with the pupil and says he shall never do that again.  He sent the affidavit and a letter to the Public Service Commission asking to be pardoned.  This again confirms that the evidence which he gave at the 1998 inquiry was false, therefore he has been properly found guilty of giving false evidence under oath.

Ground Number three said the Appellant suffered double jeopardy by being tried twice for the same offence.  This is incorrect.  The 1998 charge was for an improper association with a school pupil of 16 years of age.  The facts were that the Appellant, being a school teacher, had engaged in an improper relationship with one of the school pupils aged 16 in 1997.  The 2003 charge was for giving false evidence under oath.  The facts were that during an inquiry in 1998 the Appellant, being a witness in the inquiry, lied under oath and gave false evidence to the Inquiry committee.  So when you look at the essential facts and elements of the matter, it is clear that the 1998 case and the 2003 case are different cases for different offences.

During the appeal hearing Appellant’s counsel initially submitted that there was a delay in raising the  2003 charge and this was a contravention of Section 18 (a) of the Constitution of Zimbabwe which provides for hearing within a reasonable time.  However, it was pointed out that in such cases, the counting of time starts from the period when the aggrieved Authority got to know that false evidence had been given.  Appellant’s counsel later conceded that there was no delay if we take into account that the relevant authority became aware of the new evidence in 2003 and immediately started the disciplinary process thereafter.

Wherefore the appeal is dismissed for lack of merit.

Each party to pay its own cost.

E.F. NDEWERE

PRESIDENT

E. MANGEZI, J. MAMBARA AND PARTNERS - APPELLANT’S REPRESENTANTIVES

CIVIL DIVISION ATTORNEY GENERAL’S OFFICE – RESPONDENT’S REPRESENTATIVES