Kudakwashe Jazi v Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/342/16
HELD AT HARARE 29 MARCH 2016
CASE NO
JUDGMENT NO LC/H/342/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/342/16

HELD AT HARARE 29 MARCH 2016				CASE NO LC/H/1066/15

& 27 MAY 2016

In the matter between:

KUDAKWASHE JAZI				Appellant

And

CIVIL SERVICE COMMISSION			Respondent

Before The Honourable B S Chidziva, Judge

For Appellant			Mr I Chingarande  (Legal Practitioner)

For Respondent		Ms T R Mutendi (Civil Division)

CHIDZIVA, J:

The appellant in the case was charged with contravening paragraph 24 of the 1st Schedule of the Public Service Regulations 2000.  It is alleged that he left his place of work at the Passport Centre and went to Makombe Building where he was caught by an investigating officer whilst assisting a member of the public to apply for a passport and that was inconstant with the discharge of his official duties and it was also in violation of the Registrar General’s Circular No 1 of 2005.

The appellant’s case was heard by the Disciplinary Committee.  He was eventually dismissed from service by the Public Service Commission.

The applicant has applied for review of the Disciplinary Committee and Civil Service Commission’s proceedings.

The grounds for review are as follows

The applicant was charged and convicted of an offence which was inconsistent with the facts and was never proven and the respondent erred in confirming the conviction.

The Disciplinary Committee acted with bias towards the applicant.

The Disciplinary Committee erred by failure to consider the applicant’s mitigation and the Commission’s failure to make a decision on the submitted factors in  mitigation constituted a serious error.

The respondent acted unreasonably that no person in its circumstances would have arrived at a decision that it arrived at.

The respondent in response

denied any bias by the committee and asked appellant to prove it

stated that appellant’s lawyer told the committee that mitigatory factors would be included in closing submissions but the submissions did not contain any mitigatory factors.

The committee’s findings were not outrageous.

The applicant did not raise grounds of review but grounds of appeal in that he is challenging issues of evidence rather than procedural irregularities.

This court will start by dealing with the point in limine

Section 92 E of the Labour Act states that

“appeal in terms of this Act may address the merit of the determination or decision appealed against”.”

The grounds for review that have been raised by the respondent is about the substantive correctness of the decision of the committee and the commission.  If the decision was based on hearsay evidence and speculation it means that the merits of the case were not addressed in this case.

The appellant has also stated that the committee was biased but no evidence was adduced to that effect.  The case of Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 described bias as follows

“Such a question may arise in a wide variety of circumstances.  These included but are by no means limited to, cases in which a member of the tribunal has an interest in the outcome of the proceedings which falls short of direct pecuniary interest.  Such interest may vary widely in their nature, in their effect and in their relevance to the subject matter of the proceedings and there is no rule, as there is in the case of a pecuniary interest, that the possession of such an interest automatically disqualifies the member of the tribunal from sitting.  Each case falls to be considered on its own facts.”

Appellant has not shown that any one of the members of the tribunal had interest in the outcome of the matter.  Appellant left his work place during working hours.  He only returned when he was found assisting a member of the public who had given him $470.00.  The money was for processing a birth certificate, national identity and a passport.  Mr Mazarure later abandoned his pursuit to demand his money back.

Appellant also violated the Registrar General’s Circular 1 of 2005 which forbade members of staff from assisting anyone who is not a close family member.

The appellant has also told the court that mitigation was never considered.  The respondent however stated that appellant’s lawyer had submitted that mitigation would be submitted in closing submissions.  However the closing submissions by appellant dated 11 May 2015 from Mugiya Macharaga Law Chambers did not submit any mitigation on behalf of the applicant.

In my view the committee and commission did not act in any unreasonable manner in the proceedings.

To that end therefore this court finds that the application lacks merit.

Accordingly it is ordered that

The application for review be and is hereby dismissed with costs.

Matizanadzo & Warhurst, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners