Hopewell Chikosha v Minister of Home Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/55/2023
HARARE, 24 JANUARY 2023
CASE NO LC/H/1063/22
23 FEBRUARY 2023
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO LC/H/55/2023

HARARE, 24 JANUARY 2023                                            CASE NO LC/H/1063/22

23 FEBRUARY 2023

HOPEWELL CHIKOSHA				           APPELLANT

MINISTER OF HOME AFFAIRS			           RESPONDENT

Before the Honourable Musariri  Judge:

For  Applicant	       - Mr W. Magaya,  Attorney

For Respondent     - Ms RB. Madiro, Officer

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent.  The appeal is provided for by the Public Service Regulations S.I. 01/2000 in its section 51 (1) a&b.  Respondent opposed the appeal.

The grounds of appeal were nine-fold.  However some of the grounds raise reviewable issues which cannot be dealt with in this appeal.  The remaining grounds of appeal basically challenge the main finding by the  disciplinary authority that appellant committed the act of misconduct as charged.  The charge  laid by the respondent’s letter dated 20th May 2020 was “ Improper and Incompetent  performance of duties.”  The matter was heard by a disciplinary committee which noted their findings as follows,

Findings

“4,1  Ms Chibvongodze denied vehemently that she was handed over Visa Book

Number 9346 as  the signature appended by the receiver was not hers.

4.2  Ms Chibvongodze maintained that the Visa sticker book number 9397 was requested

for and handed over to Mr Chikosha as signified by his signature.

4.3  Ms Chibvongodze indicated that she did not take back the book as she left for home

after handover takeover.  She went on to indicate that in any case she wanted the Visa

book they would have done another handover takeover.

4.4  Mr Chikosha told the Committee that when Ms Chibvongodze took book number

9397 she then gave Mr Chikosha Visa book number 9399 which Mr Chikosha took

believing it was same Visa book which had initially been collected by Mrs

Chibvongodze.

4.5  Mr Chikosha did not put across the issue of swooping of Visa books 9399 and 9397 to

Ms Chibvongodze during cross-examination and only brought it forward to the

Committee when he told his side of the story.

4.6  Mr Chikosha indicated that he regarded Visa books as security   items which represent

cash.

4.7 The supervision of the handover takeover process was weak.

4.8  Mr Chikosha’s action or performance was unprocedural.  He showed gross incompetence

even under little or no supervision.

4.9  Supervisors did not adhere to circulars and Memorandums from the Officer in Charge but

this cannot exonerate Mr Chikosha from the charge by virtue of receiving responsibility.”

( The underlining is for emphasis)

It is common cause that 2 Visa books ref 9346 and 9397 went missing.  Both books are regarded as security items.  Appellant took possession of these books albeit on divers occasions.  As for the book 9346 he claimed to have handed it over to a colleague Mrs Chibvongodze.  He relied on the signature in the handover register which he claimed was Chibvongodze’s signature.  However Chibvongodze disowned the signature and denied that she received the book from appellant.

As regards book 9397 Chibvongodze handed it over to appellant.  That is borne out by appellant’s signature upon his take-over of the book.  Appellant claimed he then returned the book to Chibvongodze upon her request.  He further claimed that Chibvongodze purported to return the book to him but returned a different book.  His claim is not backed up by a handover takeover.

Furthermore he failed to examine Chibvongodze on this point during the hearing.  Chidvongodze denied that she requested or took back the book.

In this Court appellant argued that for the charge of incompetence to stick it must be shown that there were standard operating procedures which appellant was trained for but failed to apply.  Appellant pointed to an instruction by Officer in Charge regarding the handover takeover of the books.  The instruction was directed to Supervisors and not to Officers like appellant. He sought to argue that he was not properly trained.  I consider the argument as disingenuous.  What was in issue was simply the handover takeover of Visa books which appellant himself admitted were valuable security items. There was a proper handover takeover procedure shown by the extract from the handover takeover register.  Appellant relied on the register to prove his innocence.  The disciplinary authority believed Chibvongodze’s version of the handover takeovers in question.    Appellant handed over the first book to a person whose signature could not be identified.  He could not give a reasonable explanation as to how he disposed of the second book.  The evidence showed that appellant knew what was expected of him.  He simply failed to execute his duties properly and competently.

The disciplinary authority’s verdict was consonant and consistent with the proved facts.  I consider that there was nothing irrational about the verdict to warrant interference by this Court sitting as an appellate body.  See Hama V NRZ 1996 (1) Z2R 664(S) where Korsah JA at p 670C laid down the law thus

“The general rule of law, as regards irrationality, is that an appellate court will not

interfere with a decision of a trial court based purely on a finding of fact unless it

satisfied that having regard to the evidence placed before the trial court, the finding

complained of is so outrageous in its defiance of logic or of accepted moral

standards that no sensible person who had applied his mind to the question to be

decided could have arrived at such a conclusion.”

In all the circumstances it is concluded that the appeal in casu lacks merit and ought to be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed, and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E