Henry Tapfira v Ministry of Home Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/693/2016
HARARE, 17 NOVEMBER 2015
CASE NO. LC/MC/65/12
JUDGMENT NO. LC/H/693/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/693/2016

HARARE, 17 NOVEMBER 2015			  CASE NO. LC/MC/65/12

AND 4 NOVEMBER 2016

In the matter between:-

HENRY TAPFIRA							Appellant

And

MINISTRY OF HOME AFFAIRS					Respondent

Before Honourable L. Kudya, Judge

For Appellant		Advocate E.T. Matinenga

For Respondent		Mr C. Chopamba (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which dismissed appellant from employment following allegations of dishonesty including falsifying any document with fraudulent intent in contravention of the Public Services Regulations SI 1 of 2000 as amended.

Facts of the matter are that on 30 July 2012 appellant appeared before a disciplinary committee to answer the above stated charges.  He was said to have authorised death entries and issued burial orders for Rejoice Mahonyo, Kiven Marira and Rejoice Marira without following procedure and it turned out that the said persons had not died but were alive.  As a result of the fraudulent documents First Mutual Life Assurance got prejudiced by paying out on the purported deaths yet in truth and on faith the allegedly dead persons were alive.  The disciplinary committee heard evidence on the matter and concluded that appellant was guilty.  It thus went on to recommend that he be discharged from service on account of the proven allegations.  The disciplinary authority consequently gave a verdict of guilt and penalised him by discharging him from the service.  He was irked by the dismissal and decided to appeal to the labour court which appeal is the subject of this judgment.

The appeal grounds were styled as follows:-

Disciplinary authority erred by stating that appellant did not attend the hearing yet he did so.

Disciplinary committee failed to record the minutes of the disciplinary proceedings by capturing the names of the persons attending incorrectly as well as ill recording the appellant’s defence stating that he did not attend the hearing.

Disciplinary authority erred by charging appellant for contravening the 2004 manual yet he was using the 2010 manual where the 2004 peremptorily required authorisation by a supervisor yet the 2010 one did not have such a mandatory provision.

Disciplinary authority erred by not realizing that appellant as a supervisor was allowed to authorise the forms as per the 2010 manual.

Disciplinary Authority erred by not deciding that appellant was supplied with false information by informants who applied for the documents and there were letters from village heads confirming the deaths.

Disciplinary authority erred to conclude that Mvere village did not exist yet headmen Mvere gave evidence at criminal court which confirmed its existence yet he was not called for the disciplinary hearing.

Disciplinary authority erred on points of law when it decided that appellant was supposed to have insisted on the presence of the headmen and 2 witnesses yet the 2010 manual provided that only a confirmation letter from the village head and 2 witnesses sufficed. Same were brought in the case at hand and the witnesses came requesting the documents.

Disciplinary authority erred by basing its decision on there was a fact that pending criminal case against the appellant yet he by then had already been found not guilty and acquitted.

In the result the appellant prayed that the decision to discharge him from the service be set aside.

In response to the appeal the respondent maintained that:-

Disciplinary Authority letter of 22 November 2012 advising appellant of the outcome of his matter had a typographic error where it omitted to record that appellant had been present yet he was. Such an error was corrected in the finalisation of the misconduct letter dated 3 December 2015.  Appellant refused to sign both letters but disciplinary authority was guided by record of proceedings which showing that appellant had indeed attended the hearing.

The recording of proceedings was done properly save for the ill recording of Rejoices name as Matenga instead of Mahonya as appeared on the notice of birth completed by appellant.  Appellant’s responses were recorded accurately and he does not indicate what it is that he says was committal in the record of proceedings.

Appellant breached 2004 manual and it is what was in force and being used by appellant.  Respondent is not aware of the 2010 manual referred to by appellant.  Appellant was working alone on the day of the offence yet he supervised others during normal working hours. He was also subject to supervising from the District Registrar so he could not supervise his own work and cannot argue that he was not subject to supervision.  The forms which he completed should have been authorised by the District Registrar.

Appellant had no authority to act as he did.  He cannot claim that his work was not subject to further verification and approval.  He was not the final authority as was the District Registrar.  The 2004 manual in force is what he violated.  He cannot refer to a non existent 2010 manual.

Appellant did not follow the correct procedure when he issued the burial orders in question.  He was not supposed to authorise the forms which he had completed.  The checks and balance system required that the completing officer does not authorise but his senior does so.  Registrar had to authorise.  Headman had to be present and death registration of people without medical records of their illnesses to establish circumstances leading to their death had to be referred to the police. Letter from headman did not have headman’s identity numbers as required.

Disciplinary authority found that Tambudzai Village was under Chief Mutasa yet it was cited as the place intended for the burial not Mvere village as alleged by the appellant.

The 2004 manual is the one in force and was issued in 2004 so appellant cannot continue to refer to a non existent manual.  Confirmation letter from the village head did not beer the village head’s national identity registration number as required.

Disciplinary authority merely observed that appellant had a pending criminal case.  It was not made aware of his acquittal at the time of determing his disciplinary case.

In the result the respondent prayed that the appeal be dismissed with costs for lack of merit.

The test for appeals on point of - fact is settled.  See case of Nyahondo v Hokonya and Others 1997 (2) ZLR 475 (SC). Applying the principles laid out in the above cited case each of the appeal grounds will be dealt with below.

Grounds 1 and 2

These two grounds are dealt with at the same time since they deal with the same complaint.  In fact at the outset the query is more of a procedural query best brought up by way of review instead of appeal as it questions the method used to arrive at the decision on the matter at hand.  Being that as it may the critical question is whether the arguments contained in those 2 grounds have merit or not.  As indicated by the respondent and as is apparent from the record of proceedings the errors complained of are typographical errors.  Further to that nowhere in the recommendation of the disciplinary committee is it stated that appellant’s guilt was founded on his “supposed” absence.  The law is clear that where there is a procedural error complained of it should also be demonstrated that the one raising it was prejudiced by same.  See case of Nyahuma v Barclays Bank (Pvt) Ltd 2000 (2) ZLR 445 (S).  There is no evidence on record or in all the submissions made by the parties both oral and written where it can be demonstrated that the said typo errors prejudiced appellant.  The two grounds therefore being without merit should fail.

Grounds 3 and 4

These 2 are also dealt with simultaneously as they raise the same argument.  The record is replete with evidence that appellant was supposed to conduct his business as set out in the 2004 manual and the court was not provided with the alleged 2010 manual.  It would thus not be irregular for the court to find nothing remiss about the disciplinary committee concluding that appellant breached the 2004 manual.  It is also a fallacy for the appellant to argue that due to his supervisory role he was supposed to complete the forms and authorise the same without the involvement of his superior.  He fell foul of the provisions of the manual and defeated the checks and balances intended to be addressed by having more than one person scrutinise the process in question.  The grounds are also without merit and should fail.

Grounds 5 and 6

These 2 grounds speak to the sufficiency of evidence on the matter to found the appellant’s guilt.  It is noteworthy that the appellate court can only substitute its discretion for that of the tribunal below it if it is clearly demonstrated that the factual findings in question were so outrageous as to be in defiance of logic and common sense. The court fails to envisage how the disciplinary committee should have concluded that appellant was fed with irregular information yet it was clear that for his point he clearly breached the check and balance system in place.

It would therefore not be remiss for the disciplinary committee to infer common purpose with the persons who applied for the “False” documents.  The niceties about Mvere village’s existence or non existence are neither here nor there.  It is clear that the disciplinary committee had a sound basis for concluding that the evidence tendered on the matter sufficiently set out appellant’s guilt.  These grounds should also fail for lack of merit.

Ground 7

Arguments raised in ground 5 and 6 and analysis on the same applies to this ground with equal force.  No purpose is served by repeating the same reasons.  The ground should of necessity fail.

Ground 8

The law is clear that criminal proceedings are independent of disciplinary proceedings and the 2 are concluded using different tests of standard of proof.  See ZESA V Dera 1998 (1) ZLR 500.

In any event the record does not confirm appellant’s argument that his guilt in the disciplinary proceedings was founded on the criminal proceedings.  There is therefore no basis for this court to found as appellant would want it to that disciplinary authority concluded the matter based on the criminal case.  The record does not lend credence to that argument.  In the ultimate it is clear that all appeal grounds are not merited and they should fail.

IT IS ORDERED THAT

Appeal being devoid or merit in its entirety it be and is hereby dismissed with costs.

Advocate Matinenga, appellant’s legal practitioners

Thondhlanga & Associates, respondent’s legal practitioners