Hlulani Obert Halimani v Secretary for Higher Education, Innovation Science and Technology

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 JANUARY 2024
JUDGMENT NO LC/H/91/2024
CASE NO LC/H/815/23
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 JANUARY 2024

JUDGMENT NO LC/H/91/2024 CASE NO LC/H/815/23

In the matter between:-

HLULANI OBERT HALIMANI	APPELLANT

SECRETARY FOR HIGHER EDUCATION	RESPONDENT AND INNOVATION SCIENCE AND

TECHNOLOGY

Before the Honourable Kudya J

For the Appellant	D. Halimani and T. Nyamayaro (Legal Practitioners) For the Respondent	C. Gumbo (Legal Officer)

KUDYA, J:

This is an appeal against part of the determination of the Secretary for Higher Education where the appellant employee was found guilty of corruption and dishonesty.

The appeal is premised on the following 6 grounds

Standard of proof used to convict should have been proof beyond reasonable doubt as opposed to proof on a balance of probabilities since the charge was of a criminal nature.

Conviction was based on insufficient evidence. There was no evidence to prove the motive for receiving bribery money from the complainant.

Conviction of corruption and dishonesty was without all the essential elements of the offence.

Disciplinary authority erred to rely on manifestly unreliable evidence of a single witness hence it could not safely act on that.

The call of 3 June 2022 had little probative value as it was a failed entrapment after the report to the principal on 30 May 2022.

The dismissal penalty was manifestly harsh and excessive and induced a sense of shock in the circumstances of the matter.

In the result the appellant prayed that the appeal succeeds, that the determination finding him guilty be set aside and be substituted with an order finding him not guilty of the charge of demanding USD5 from Cynthia Jere for her to pass catering studies.

In response to the appeal the respondent maintained that

The Disciplinary authority was correct to find the employee guilty on the basis of proof on a balance of probability as that is the set standard for disciplinary proceedings.

Appellants defence that the WhatsApp communication was a joke was not justified. In that communication he insisted on being given money. He could not explain what the money was for and why Jere had to give him money. The Principal had warned against such unethical practices. The issue was not to judge the motive but the conduct of the appellant which conduct was unprofessional and unethical.

Sufficient evidence was led from the WhatsApp conversation and minutes of the hearing showing that witness concluded that appellant was guilty of abuse of authority. He persistently asked for money in which exams were involved and principal from the Harare Polytechnic also testified.

The disciplinary authority could safely rely on the single witness evidence as it was corroborated by the WhatsApp conversation and phone call in which appellant was a participant.

The disciplinary authority did not solely rely on the call but from the evidence of the witness and WhatsApp messages and evidence from the principal given during the hearing.

The disciplinary authority had the discretion to impose an appropriate penalty in view of the appellant’s conduct.

In the result the respondent prayed that the appeal be dismissed with costs.

It is settled that the appeal court will not lightly interfere with the decision of a trier of fact unless if the facts of a matter point to a gross misdirection in the exercise of discretion by the trier of fact. See Nyahondo v Hokonya and others 19971) ZLR 457 (S).

Applying this test to the facts of the matter at hand the court concluded as below on each of the issues raised by the appeal.

Ground 1

On this ground it is the appellant’s view that the disciplinary authority should have used the standard of proof beyond a reasonable doubt since the allegations had criminal connotation. In that regard he relies on the case of Astra v Chamburuka SC 12-12. Sadly a reading of Chamburuka (supra) does not support his view. As was observed in the case of Nyarumbu v Sandvik SC-31-13 such a view emanates from a misreading of Chamburuka. The law is still settled that proof in disciplinary proceedings is proof on a balance of probabilities as opposed to proof beyond reasonable doubt. In the premises ground 1 being without legal foundation should accordingly fail.

Ground 2

Under this ground appellant reasons that the disciplinary authority found him guilty without ascertaining the motive for the alleged infraction of bribery. In the main appellant contends that he was found guilty on the basis of insufficient evidence. It need be noted that respondent correctly observed that the WhatsApp messages between appellant and Cynthia repeatedly referred to him asking Cynthia to give him money though the record is silent what the money was for. Cynthia says it was bribe money from her to be granted a favour by appellant so that she could pass the catering exam which she was failing repeatedly. The major problem with the facts as posited by Cynthia is what nexus did appellant have with her catering exam since it was common cause that appellant did not teach her that subject neither was he the marker of the same. In fact when evidence was led from the institution no clear nexus was given between the alleged money that was said to have passed hands between Cynthia and appellant and the exams which Cynthia repeatedly failed. All that the court can surmise from the telephone conversation between Cynthia and appellant is that if any money passed hands it was because appellant could influence the marking of Cynthia’s examinations. This is so because in the telephone conversation he states that he was joking with Cynthia and that he had nothing to do with the Catering subject. Apart from that mere conjunctive there is nothing tangible for the court to rely on to conclude that indeed the motive for the infraction was established. Whilst the motive was not the overriding factor it would have cleared the air on the issued of the nexus between the money issue and the exams. Since it did not do so the court can not fault appellants view that he was found guilty on dearth of evidence The ground being merited should succeed.

Ground 3

The appellant submitted that all the essential elements of the charge were not met hence the guilty verdict should not be made to stand. The infraction of corruption essentially entails extending a favour materially or otherwise to another who is in a position to influence a potential outcome which in the ordinary cause of his duty he/she should merely execute without such a favour See Section 174 Criminal Conduct and refer Act chapter 9.23. Placing this in the context of the facts of the case at hand it was the employer’s case that Cynthia extended to appellant $5 cash so that he could influence the outcome of her catering exam. Sadly from all the evidence led there was no nexus that was established between the passage of money between the two and the catering exam outcome. To that extent the conclusion arrived at was not backed by evidence to the extent that appellant can not be faulted to reason that the essential elements of the infraction were not proved. The appeal ground being with merit should also succeed.

Ground 4

On the issue of reliance on single witness evidence the employer stated that such was corroborated by the principal’s evidence and the WhatsApp messages as well as the phone call between Cynthia and appellant. The fact that Cynthia was the key witness admits of no doubt as well as the fact that there was a discussion on money between Cynthia and appellant on the WhatsApp platform. Sadly that is only as far as the evidence goes.

It does not go further to demonstrate the link of the money discussion and the catering exam, its marking and Cynthia’s failure. The evidence of the principal only emphasised the fact that he had warned lecturers to desist from conduct that compromised their positions vis a vis their relationship with the students. It could not set out clearly that if there was any communication between Cynthia and appellant about such was in relation to exams and that appellant had control over such. On account of the absence of such a link the evidence on the matter thus remains murky. Marking. In the result the conclusion that the guilt could not be birthed primarily by Cynthia’s evidence can not be faulted. The ground also being well founded should succeed.

Ground 5

The telephone call between Cynthia and appellant to a great extent showed that the appellant lamented that Cynthia had failed again. It however does not at all say that appellant had a hand

in the failure. To that extent there was little value on the phone call to the extent that even the suggestion that it was a failed entrapment could hold given that Cynthia in that conversation does not at all say to appellant “why did I fail again yet I gave you money.” Everything is left for conjecture thus making it difficult for one to conclude that appellant erred as alleged. The ground also being well founded should succeed.

Ground 6

It is settled that penalty is the prerogative of the employer See Nyawasha v Circle Cement SC-10-03. That being as it may the question of penalty would have been relevant had appellant’s guilt been correctly birthed. From the aforegoing it is clear that there was no evidence to show that appellant had powers that could call for his receipt of the money to influence the marking of Cynthia’s exam. In the absence of such crucial evidence the court is at large to conclude that the trier of fact exercised its discretion unreasonably and to that extent the guilty verdict has to be vacated. On account of that vacation of the guilty verdict the discussion on penalty is rendered academic. No meaningful purpose would be served by engaging in such an academic exercise. In the result the appeal should succeed in the main.

IT IS ORDERED THAT

Appeal ground 1 being without merit it be and is hereby dismissed. Appeal grounds 2 and 6 being well founded they be and hereby succeed.

The decision of the disciplinary authority is set aside and substituted with an order reinstating appellant to his original position without loss of salary and benefits or that he be paid damages in place of reinstatement if reinstatement is no longer feasible.

Each party to bear own costs.

Wintertons, Appellant’s Legal Practitioners