Killerman Maburutse v Minister of Primary and Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/824/16
HELD AT HARARE ON 26TH OCTOBER, 2016
CASE NO. LC/H/314/16
AND 30 DECEMBER, 2016
JUDGMENT NO. LC/H/824/16
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/824/16

HELD AT HARARE ON 26TH OCTOBER, 2016    CASE NO. LC/H/314/16

AND 30 DECEMBER, 2016

In the matter between:-

KILLERMAN MABURUTSE						Appellant

AND

MINISTER OF PRIMARY AND SECONDARY

EDUCATION								Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mrs C. Mahlangu  (Legal Practitioner)

For Respondents	:	Ms T. R. Mutendi   (Civil Division of Attorney

General’s Office)

MHURI J.

Appellant was charged with misconduct in terms of section 44(2)(a) as read with paragraphs 8, 9 and 24 of the first schedule of the Public Service Regulations 2000 Statutory Instrument 1/2000.

Paragraph 8 speaks to:-

theft or failure to take reasonable care of or to account for, or making improper or unauthorised use of, public moneys or the moneys of any statutory fund or local authority.

Paragraph 9 speaks to:-

Theft of, or failure to take reasonable care of, or making improper or unauthorised use of, state property or the property of any  statutory body, statutory fund or local authority, including motor vehicles, or the failure to take adequate steps to ensure that reasonable care is taken of any such property or, failure to report at the earliest opportunity any loss thereof or damage thereto.

and

paragraph 24 speaks to:-

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

The grounds upon which the acts of misconduct were based are that on divers occasions, Appellant under banked moneys which he had earlier receipted thereby causing a shortfall of $67-00.

It was alleged that he embezzled the said money.

Appellant was found guilty and discharged from the service.

On two main grounds, Appellant noted this appeal against both conviction and penalty.

These are the grounds:-

that the Disciplinary Authority erred and seriously misdirected itself in finding him guilty of under banking funds by $67-00.

that the Disciplinary Authority erred at law in dismissing him without considering his mitigation.

The facts which are generally common cause are that;

at the relevant times Appellant was acting Deputy Head at Chamatutu Primary School.

Amongst his duties at the time, he, together with another member of staff (Madembo) was responsible for receipting monies.

The money receipted by Madembo would be handed over to Appellant the end of the day.

He kept the money in the cash box, in the strong room.

He kept all the keys to the strong room and the cash box.

Appellant was also responsible for preparing the bank deposits.

The Head was responsible for banking the money.

An audit was carried out which revealed that on;

11 June 2014, Appellant receipted $72-00 but the amount banked was $52-00 giving a shortfall of $20-00.

3 July 2014, Appellant receipted $28-00, the amount banked was $15-00 giving a shortfall of $13-00.

23 June 2014, Appellant receipted $70-00 but banked $60-00, thus causing a shortfall of $10-00.

On 21 July 2014, Appellant receipted $199-00 but banked $190-00, thus causing a shortfall of $9-00.

(e)    On 23 July 2014, Appellant receipted $15-00, but banked $10-00,

thus causing a shortfall of $5-00.

The total shortfall was $67-00.

During the disciplinary hearing, the record shows that Appellant accepted responsibility of some of the shortfalls. Examples of this are seen in the question and answer session between the committee and the Appellant. At page 15-16 the following is shown:-

Committee:	What about allegation (c) that you caused a shortfall of $10-00?

Member:	I receipted it alone.

Committee:	What actually happened?

Member:	I miscalculated it and I am the one who is responsible.

Committee:	On allegation (d) did you cause a shortfall of $9-00?

Member:	I receipted it on my own so I am responsible for the error.

Committee:	What about allegation (e) did you cause a shortfall of $10-00?

Member:	I did it alone.

These shortfalls were not accounted for. Appellant was the sole custodian of the keys to both the cash box and strong room. It is to him that the cash receipted by Madembo was handed. It is him who prepared the deposit slips for purposes of banking the money by the Head.

In view of the above, I am satisfied that Appellant was properly found guilty of under banking school funds by $67-00.

The record shows that after his evidence in chief and cross examination by members of the committee, Appellant was asked to mitigate in the event that he was found guilty. He stated, “If I am to be found guilty, I plead for leniency since I handled the office without knowledge. I am a bread winner and am really sorry about this case”.

Although this request could have been properly made after the pronouncement of a guilty verdict, I find that this irregularity is not so fatal as to affect the penalty imposed. There was in my view substantial compliance with the requirement to mitigate.

It has been stated time without number by the Courts that imposition of a penalty is solely the discretion of the employer and where such has been exercised, the Appellate Court should not interfere unless it is shown that the discretion was not judiciously exercised.

INNSCOR AFRICA PRIAVE LIMITED

V

LETRON CHIMOTO SC 6/12

MALIMANJI

V

CENTRAL AFRICA BUILDING SOCIETY 2007 (2) ZLR

77 (S)

In casu, money was involved. The Disciplinary Committee made the finding that the school was defrauded a cumulative amount of $107, $67 of which was by Appellant. Under banking of money involves an element of dishonesty.

The under banks were not a one off incident but done over a period of time.

Under the circumstances the employer cannot be faulted for taking the serious view it did and imposed a dismissal penalty.

I find therefore that there is no legal basis for me to interfere with the penalty imposed.

In the result, the appeal is dismissed in its entirety.

Munyaradzi Gwisai & Partners	-  Appellant’s Legal Practitioners

Civil Division of the Attorney General’s Office - Respondent’s legal Practitioners