Isaac V Chakadonha v The Secretary for Home Affairs & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/510/2016
HARARE, 19 MAY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/1038/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/510/2016

HARARE, 19 MAY 2016 &					       CASE NO LC/H/1038/2015

9 SEPTEMBER 2016

In the matter between

ISAAC V CHAKADONHA						      APPELLANT

Versus

THE SECRETARY FOR HOME AFFAIRS			    1st RESPONDENT

And

PUBLIC SERVICE COMMISSION				    2nd RESPONDENT

Before the Honourable Hove J

For the Appellant	T Mutonhori  (Legal Practitioner)

For the Respondent     C Chopamba (Legal Practitioner)

HOVE J:

The appellant was employed as a processing officer. He joined the department on 4 March 1991.

On 2 June 2015 he was charged with misconduct. He was found guilty and discharged from service.

These proceedings are his appeal against the said conviction and dismissal.

The appellant basically challenges the decision to find him guilty on the basis that the disciplinary authority grossly erred in its assessment of the evidence placed before it. The following are his lengthy grounds of appeal:

The first respondent’s disciplinary authority erred and misdirected itself in finding the appellant guilty of misconduct as charged for contravening paragraph 24 of S I 2000, that is:

“Any act or omission which is inconsistent with or prejudicial to the discharge of official duties, including the abuse of authority.”

The disciplinary authority grossly erred in failing to put into consideration the fact that Hunyani Farm, the purported birth place does not have any legal owner, the farm had been turned into a resettlement area therefore a letter confirming the birth of the child could not be produced from the owner of the farm as provided for in the Birth and Death Act 5:02.

The disciplinary authority erred in failing to put into consideration the fact that in terms of the procedure manual, for the Birth and Death Registration, the position of providing a healthy-card as a pre-requisite for issuing a birth certificate is silent. A birth certificate can be issued out in the absence of the health card.

The disciplinary committee grossly erred in failing to consider the fact that all particulars of the informant were produced as envisaged on the BDI Form.

The disciplinary committee also misdirected itself in failing to consider both aggravating and mitigatory factors before arriving at the decision that the appellant be dismissed In terms of SI 15/2006 (7)(1) disciplinary action should be in the first instance, be educational and then corrective. Punitive action should be only taken when the said earlier steps have proven ineffective.

The disciplinary authority erred in failing to consider the weight of the crime and the penalty imposed. The prejudice suffered was in the amount of US$50-00.

The appellant in his heads of arguments argued that the respondent failed to discharge the burden of proof as is required in disciplinary proceeding. It was submitted that the respondent ought to have proved the allegations against the appellant beyond a reasonable doubt. Authority for this proposition was placed in the case of Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 365 (S).

That this is not the correct position is beyond doubt. The burden of proof in all civil matters is always one on a balance of probabilities.

In the case of ZESA v Dera SC 79-98 it was stated that it is common cause that in labour cases the burden of proof is on a balance of probabilities and not proof beyond reasonable doubt.

The argument therefore that in this case the allegations ought to have been proved beyond a reasonable doubt is baseless.

The evidence before the respondent was considered by the respondent to be overwhelming. The appellant knew that there was a requirement to prove a birth before issuing a birth certificate. Even though Hunyani Farm had been turned into a resettlement, a responsible person in that resettlement area could have authenticated the birth. The appellant was a senior officer and ought to have known the importance of authenticating births before one could issue a birth certificate. A health card, the farm owner’s confirmation could have served to confirm the alleged birth and this was the normal practice within the Registrar General’s Office.

In the event that there was no farm owner and the requirement was incapable of being met, the appellant could have consulted and sought guidance from his superiors before taking it upon himself to dispense with a requirement of the Birth and Death Registration Act [Chapter 5:02]. The fact that he dispensed with this requirements shows how lightly he considered the need to authenticate birth records. He failed to do the requisite verification that was expected of him.

The appellant failed to verify that all the required documents had been filed and that all the requirements had been met. He admitted that he had failed to verify the documents. By his own admission he was guilty of the charges laid against him.

The appellant, during the disciplinary proceedings said that he had failed to verify that all required processes had been met. This is part of the record and the appellant did not dispute that he had made the admissions. The appellant was well aware of the requirements as he had served the department for a period of twenty-one years.

The grounds of appeal numbers 1, 2, 3 and 4 are without merit. It cannot be true that all the particulars as envisaged by the BDI forms had been produced as alleged in ground of appeal number 4 as it would not have been necessary for him to admit as he did, that he failed to check as he assumed that the official who had processed the BDI forms had done all that was required.

The appellant had a duty to check and ensure that all the documents had been produced. He does not deny this.

As regards the issue of penalty.

The respondent was of the opinion that the aggravatory factors far outweighed the mitigatory factors. An official of 21years experience who did not see the need to verify births before issuing birth certificates is so grossly negligent in the performance of his duties. His attitude would seriously compromise the authenticity of the records of births at the Registrar General’s Office.

The respondent was of the view that this was a serious offence and it had the discretion to impose the penalty of dismissal.

This court has no basis to interfere with the penalty imposed as it is clear that the misconduct was serious and went to the root of the contract of employment.

See in this regard the case of Toyota Zimbabwe v Pasi SC 55-07.

In the circumstances, I’m of the view that the appeal is one without merit in all respects and dismiss it with costs.

Pundu & Company, appellant’s legal practitioners

Thondhlanga & Associates, respondents’ legal practitioners