Linmary Manyika v Judicial Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MS/07/2016
MASVINGO, 21 MARCH 2016 &
CASE NO LC/MS/01/2016
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MS/07/2016

MASVINGO, 21 MARCH 2016 &			                    CASE NO LC/MS/01/2016

13 MAY 2016

In the matter between

LINMARY MANYIKA							APPELLANT

Versus

JUDICIAL SERVICE COMMISSION					RESPONDENT

Before the Honourable D L Hove J

For the Appellant      J Mpoperi  (Legal Practitioner)

For the Respondent   E Mukucha (Legal Officer)

HOVE J:

The appellant in this case was charged with an act of misconduct by her employer, the respondent.

She was found guilty and the employer imposed the following penalty:

“that she should not be promoted to the next grade for the next five (5) years.”

She was aggrieved with both the conviction and the penalty and she noted this appeal.

The facts of the matter are common cause. These are they.

The appellant was employed by the Judicial Service Commission as a magistrate at Masvingo Magistrates Court.

She presided over a criminal matter and passed a sentence which raised an outcry from the complainants and as a result the employer investigated the matter and preferred charges against her. The facts of the criminal matter were as follows:

An accused person, one Muneyi Mbonya, was a member of a pastors’ organisation. The pastors from different and various Christian churches had organised themselves for purposes of providing its members with a platform to meet, share and discuss issues of common interest and to see how they could better their lot.

It was noted that of major concern to the pastors was the need for accommodation. Some of the pastors resided in official accommodation but upon retiring they had to vacate the properties to make way for new pastors and most of the time they would not have personal residential properties and would then be left homeless or alternatively in cases where they die in office, their families would also be required to vacate the official houses and they too, would find themselves homeless. Others who had no official residence would be required to rent, a situation that they found demeaning depending on the circumstances most of them found themselves in.

They purposed to approach the city fathers and request that they be allocated residential stands. In this pursuit, they tasked one of their members, Pastor Muneyi Mbonya to do all the necessary follow ups in this matter. This was in June 2012.

The city fathers allocated to them the residential stands they had asked for. But, unfortunately the pastor, Pastor Mbonya kept the communication and good news to himself. All his colleagues did not know that stands had been allocated. In February 2013, the Pastors again approached the city fathers with a request for stands. It is then that they were told that 104 stands had been allocated to them.

In the meantime Pastor Mbonya had sold 97 of the stands to members of the public.

His colleagues had noted that he had become affluent and because he now resided in the low density suburbs, they presumed that he had now bought a house for himself when they sought to investigate the fate of the stands, allocated to them, he became increasingly hostile and they were left with no option but to report the matter to the police.

The Pastor pleaded guilty to fraud in that he converted the ninety-seven stands to his own use and sold them to members of the public. He was found guilty on his own plea of guilty and sentenced to pay a fine of $200-00 in default of payment sixty days imprisonment. In addition eight months imprisonment wholly suspended for five years on condition the pastor would not, within those years, commit any offence involving dishonesty and for which upon conviction, he would be sentenced to imprisonment without the option of a fine.

The intended beneficiaries immediately suspected that the magistrate and the prosecutor had been bribed. A complaint was made to the respondent who instituted investigations. There was no evidence to sustain most of the allegations from the intended beneficiaries of the stands but the employer felt that the appellant had not performed her duties to the required standard and charged her with failure to perform the duties:

“related to one’s work or improper or negligent, inefficient or incompetent performance of duties”.

The basis of this charge was that the sentence was too lenient.

The appellant denied the allegations. She raised a preliminary point that the respondent had failed to conduct the proceedings in a procedurally correct manner. The court does not intend to detain itself on this point. The law is clear and it is that the court will not interfere with the decision of a quasi-judicial tribunal were there has been an irregularity. If satisfied that the complaining party has suffered no prejudice. See in this regard Rajah v Ventersdorp 1961 (4) SA 40C AD and Tichawana Nyahuma v Barclays Bank SC 67-05. In the Nyahuma case supra the learned judge stated that:

“It is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party complaining was prejudiced by the irregularity.”

See also Jockey Club of SA & Ors v Feldman 1942 AD 340.

In casu it was not alleged, neither was it shown that the appellant was prejudiced by the procedural irregularity. Proceedings can thus not be vitiated.

The appellant also argued that the charge preferred against her was vague. I have perused the entire record and it appeared that the appellant understood and was able to defend herself inspite of the way the charges against her had been framed. It was clear that the allegations centred on the sentence that she passed which was considered too lenient.

The charge was that the appellant had failed to perform her duties or had performed her duties negligently or inefficiently or incompetently, “in that on 31 December, 2013 and at Masvingo Magistrates’ Court you presided over the case of the State v Muneyi Mbonya CRB No MS 2636/13 in which he was facing a charge of fraud involving ninety-seven residential stands offered to the Masvingo Minister’s Fraternal. In that case you went on to pass a sentence of $200-00 fine in default of payment sixty days imprisonment. In addition eight months imprisonment wholly suspended for five years on condition accused does not within that period commit any offence involving dishonesty and for which upon conviction will be sentenced to imprisonment without the option of a fine … the reviewing judge withheld his confirmation of the proceedings stating that the proceedings were not in accordance with real and substantial justice”.

It is not true therefore that the charge was not clear. It outlined that the charges arose from the fact that the appellant had dealt with a matter and passed a sentence that the reviewing judge refused to confirm as not being in accordance with real and substantial justice. Further the disciplinary authority clarified during the hearing that the charge related to the sentence imposed.

Further and in any event, the appellant has not alleged that she suffered any prejudice. In the case of Dalyn Mine v Musa Banda SC 39-99. The court held that labour matters are not to be decided on the basis of technical issues.

Standards of quasi-judicial tribunals are not to be equated to the standards in criminal cases. In disciplinary proceedings, the proceedings need not be handled according to the rigorous standards of a court of law. The rules of natural justice require no more than that a domestic tribunal acts according to common sense precepts of fairness. In casu there was a hearing, the appellant was given sufficient time to prepare. The charge letter of 21 September 2015 clearly stated that the basis of the charge was the sentence she had passed which was not in accordance with real and substantial justice according to the reviewing judge.

It cannot be argued that common sense precepts of fairness were not met. See the case of Smith Chataira v Zesa SC 83-01.

Vis a vis the merits of the matter, the appellant raised the following issues:

That the reviewing judge did not set aside the sentence.

That she could not have ordered restitution when the state had not applied for it.

That the sentence she imposed was appropriate since it was not set aside by the scrutiny magistrate.

And finally that the penalty was too harsh.

The issues for determination are:

Whether the sentence passed by the appellant was justifiable in the circumstances.

Whether there ought to have been an order for restitution.

Whether the appellant was negligent or incompetent, or inefficient, or whether she improperly conducted her duties, and

Whether the penalty imposed was too harsh.

I believe the respondent did manage to show that the sentence imposed was inappropriate. It induces a sense of shock. This was not a petty criminal offence. The accused person faced a serious charge of fraud involving ninety-seven residential stands which he unlawfully sold for personal gain.

He was a pastor and by virtue of that position he ought to have conducted himself in a manner that was trustworthy. He abused the trust that was vested in him. A judicial officer ought to have realized that the amount involved was not a paltry sum as it involved 97 residential stands in an urban area. I agree with the employer that the appellant was grossly negligent. I believe that for the magistrate, in considering the sentence, ought to have taken in to consideration the value of the stands but she did not.

The appellant ought to have interrogated the facts further to enable herself to understand the value as this would have informed the nature of the penalty to impose.

The magistrate was also not a junior magistrate. She was an acting regional magistrate and ought to have given the matter more serious consideration. I agree with the disciplinary authority that she took an armchair approach.

The disciplinary authority found as follows:

“… the sentence imposed did not meet the justice of the case. For an accused who is a pastor and who benefited ninety-seven stands at the expense of other pastors and who was also put in a position of trust …, it (the sentence) induces a sense of shock. This sentence is a moving signal to the community that crime pays.”

I agree with these findings. The magistrate seriously neglected her duties. She failed to give weight to the aggravatory factors that she found, that the offence was very prevalent, that the accused was a pastor who ought to have led by example. She also failed to impose a “hefty” fine as indicated by herself on the record and imposed a mere $200-00 fine. This was highly improper. Her actions reveal recklessness and failure to exercise the standard of care expected of a person of her position and experience. She dealt with the matter incompetently.

Whether or not she ought to have ordered restitution

She ought to have complied with the duty placed upon her by statute i.e. section 368 (2) of the criminal procedure and evidence act [Chapter   ] which reads as follows:

“A court shall ensure, where appropriate and practicable, that any injured party as acquitted with his right to apply for an award or order in terms of this part.”

The record shows that she never applied her mind to the need to consider that the complainants were advised of their rights. She was negligent in this regard. She however could not have ordered restitution where it had not been applied for.

Having however found that she acted negligently, improperly and incompetently, it matters not that the scrutinizing magistrate or the reviewing judge did not set aside the sentence. It was sufficient for the respondent to show that the appellant failed to act competently and properly and that she was negligent.

I am satisfied that the disciplinary committee did not misdirect itself in finding her guilty.

Was Penalty too harsh?

It is my considered view that the penalty was not too harsh. The appellant was grossly negligent and she incompetently handled the matter. Her lack of diligence cannot be excused in a magistrate of her position and experience. Her explanation on page 88 of the record that:

“The complainants did not suffer any monetary loss for them to have expected to be resituated by the complainant. No one amongst the complainants had paid any monies, to the accused person”.

Shows how improperly she approached the whole issue. She never sought to properly bring up the issues that were pertinent. Loss was suffered and the monetary values could have been established had the magistrate acted more diligently.

I am satisfied in the premises that there is no merit what so ever in the appeal against the penalty imposed.

The appeal is accordingly dismissed with costs.

Saratoga Makausi Law Chambers, appellant’s legal practitioners

Civil Division of the AG’s Office, respondent’s legal practitioners