Loice Khumalo v Minister of Primary and Secondary Education and Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
CASE NO LC/H/97/23
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 24 JULY, 2024

JUDGMENT NO LC/H//2024

CASE NO LC/H/97/23

AND 25 JANUARY, 2025

LOICE KHUMALO	APPLICANT

AND

MINISTER OF PRIMARYAND SECONDARY	1ST RESPONDENT EDUCATION

AND

PUBLIC SERVICE COMMISSION	2ND RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant	-

For Respondent	-

Mr. Kadirire (Legal Practitioner)

Mr. P. Chibanda (Civil Division)

REASONS

CHIVIZHE, J:

The court on 24th July, 2024 rendered an order dismissing the present matter with costs. TheAppellant having written asking for reasons the following are the reasons. Mymost sincere apologies to the litigants for the delay.

The matter was placed before me as an appeal against the determination and penalty of dismissal imposed by the Respondents’ DisciplinaryAuthority dated 28th of December, 2022. The appeal was opposed.

BACKGROUND FACTS

TheAppellant was employed as a senior teacher by the 2nd Respondent. She was at the material time based at the Samaringa Primary School. Charges of misconduct were levelled against her on 7th August 2019. She was charged with a misconduct in terms of section 44

(2)(a) of the Public Service Regulations of 2000 as amended and as read with paragraph 13 “Corruption or dishonesty, including (a) any contravention of the Prevention of Corruption Act [Chapter 9:16].” The Appellant was invited to respond to the charges and she did file her response to the charges on 22 August 2019. She subsequently appeared before a Disciplinary Committee on 5 September 2022. Following a fully-fledged hearing which included evidence of several witnesses the Disciplinary Authority found her guilty of the charge. A penalty of discharge from service was consequently imposed upon her. The Appellant dissatisfied then noted her appeal with this court. The appeal was noted on the basis of 2 grounds of appeal.

On the date of hearing before this court both parties were present. The Appellant, through Counsel, then proceeded to raise a preliminarypoint. The Respondents Counsel having objected to the taking of the preliminary point by the Appellant as being unprocedural, Appellant Counsel proceeded to address only on the merits.

APPELLANTS CASE

Appellants Counsel submitted that, in view of the disciplinary proceedings having been convened outside the prescribed period under the Public Service Regulations, Statutory Instrument 1 of 2000 in particular section 45(1) thereof, the disciplinary proceedings amounted to incompetent proceedings. For that reason, therefore, the court had to grant a permanent stay of proceedings.

Counsel for Appellant in elaboration highlighted that section 45(1) provides the timelines within which all pleadings have to be filed and served under the PSC Regulations section 45(1) provides;

‘(1)	Within seven days of receiving the documents referred to in paragraph (d) of

subsection (3) or paragraph (d) of subsection (4) of section 44, the disciplinary committee shall give not less than seven days’ notice to the member concerned of the time, date and place of the hearing of the allegation of misconduct against him’

Counsel submitted that in casu, Appellant filed her response to the charges on the 22nd of August, 2021. The notice of first hearing was only then provided on the 26th of November 2021. A closer look at the PSC Regulations would reveal that the provision in section 45 was cast in mandatory terms through the use of ‘shall’. If the court were to calculate the days in this case, ‘94 days’ had elapsed before the Appellant received the notification. This was not in tandem with the provisions of the law as witnessed in the PSC Regulations. The Appellants position was that the Respondent was supposed to have complied with the statutory provisions

that notification had to be given within seven days of receipt of the notice of response. It was Counsel’s submission that the PSC Regulations are clearly binding on the Respondent, they ought to have been followed to the letter therefore by the Respondent. Counsel referred, in support of his submissions, to the decision by Honourable Bhunu J.A in Econet Wireless (Private) Limited vs PSC SC31/16 where he underlined the need for litigants to comply with subsisting laws as the laws are considered as lawful and binding until such a time as they have been lawfully abrogated. It was Appellants contention that Respondent ought to have therefore strictly complied with the provisions in the PSC Regulations as they are clearly binding and arecast in peremptorynorms. Appellants Counsel also referred to CarRental Services Private Limited vs Touch Customs Excise 1988 (1) ZLR 402 (S) where the Supreme Court said that effect must always be given to the provisions in an enactment.

Appellants Counsel also submitted that the Respondent through it's action had also breached constitutional provisions, in particular section 44 which provides for the duty of the state and all institutions and government agencies to respect, protect and promote the rights and freedoms in that chapter, section 69(1) which guarantees the right of every person accused of an offence the right to a fair and public trial within a reasonable time before an independent tribunal or court. Counsel further submitted that the Respondent had also breached the provisions in section 3 of the Administrative Justice Act. Section 3 in particular promotes that an administrative authority must take an administrative action which may affect the rights, common interests, legitimate expectations of a person in a lawfullyreasonable and fair manner. It must act within the relevant period as prescribed by any specific law as pertains to the administrative authority. In this respect, so it was submitted, Respondent had already acted outside the prescribed period, provided, a point conceded to by Respondent itself. It was Appellants view that once this concession had been made it had to follow that the disciplinary proceedings were deemed a nullity. The present proceedings therefore had to be set aside as they were based on a nullity.

Appellant Counsel also referred to circular A\ 126\ 3C in the Public Service Regulations as being in support of Appellant’s position. The circular provided for the period of 60 days as being the ultimate period during which a matter must be completed within the public service. The period of 60 days was calculated from the date of investigation up to the date of the determination of the matter. Counsel submitted that the circular was introduced under the auspices of PSC Regulations. There was a specific case in which proceedings had been held outside the period as provided in section 45 of the PSC Regulations and the Labour Court had, in the appeal, set aside those particular proceedings. Counsel submitted that in that

case the period of delay was seven months which was in tandem with the present matter. On this basis his prayer was that the court also find that the disciplinary proceedings, in this case, having had been convened outside the time frame provided were a nullity.

Counsel also addressed the court on the second ground of appeal which is based on the penalty. He submitted that the penalty imposed of discharge from service was too harsh in the circumstances of the case as to induce shock. It was clear from the record that Appellant had paid the fee after she had been approached by 1, Mr. Mapeka requesting for a processing fee. She had acted with genuine belief that the said Mr. Mapeka was a member of the Ministry of Primary and Secondary Education. Counsel submitted that even the findings made by the Disciplinary Committee confirmed that she acted in genuine belief. Counsel also submitted that although it is indeed a trite position of law that the penalty is within the discretion of the employer, an appellate court such as the Labour Court, can alter the penalty so imposed on the basis of certain principles outlined in case authorities. Counsel did not make specific reference to any authority. He however urged the court to find that in view of the circumstances in this case the penalty imposed was too harsh, it did not take into account the circumstances under which Appellant paid the fee, that she was not completely aware of the process involed for transfer under PSC. She acted out of ignorance of the law. The Disciplinary Committee seemed to have played lip service to the guilty plea tendered by her instead of considering that this was a sign of remorse or confirmation on her part. On this basis the Appellant’s prayer was for the penalty to be set aside and substituted with a fine plus a reprimand.

RESPONDENT’S CASE

The 1st and 2nd Respondent through their papers filed opposed the appeal. The submission was made that the matter could not be heard during the COVID-19 period when face to face interactions were suspended. The Appellant had been advised and she agreed to the stated reason for the delay. She had allowed the hearing to proceed on page 2 of the hearing minutes.

1st and 2nd Respondent contended that there was no deliberate intention to delay the matter. The matter was delayed due to circumstances beyond the control of the employer. In regard to ground number 2, the 1st and 2nd Respondent contended that the matter was heard before the end of 12 months after the relaxation of COVID-19 rules which had also resulted in suspension of face to face interviews. There had been a long backlog of cases that were suspended over the same period which the employer had to hear after the COVID-19 restrictions were uplifted.

With regard ground 2, it was also 1st and 2nd Respondents contention that Appellant had not taken heed of the district schools instructions that teachers were not supposed to pay anything to obtain a service The Appellant notwithstanding had proceeded to pay Mr. Kapeto in order for her to be transferred and for her daughter to be employed. First Respondent contended that corruption was a serious offence which ought not to be tolerated. The penalty imposed was therefore clearly justifiable. The 1st and 2nd Respondent disputed the contention that the Disciplinary Committee only paid up service to the mitigation given by the Appellant. The Disciplinary Committee was instead guided by the fact that she had been convicted of a veryserious charge, she was also a longserving employee who ought to have known the correct procedures. A penalty of discharge from service was found to be appropriate. The 1st and 2nd Respondent finally contended that there was a need to ensure the correct message was sent within the Public Service itself and to the nation at large that corruption would not be tolerated and those who perpetrate it would be relieved from the service.

In oral submissions, Counsel for Respondent indicated he was abiding with the papers as filed. He however placed reliance on a South African Constitutional Court determination which said that delay on its own cannot be a basis for vitiation of disciplinary proceedings. Counsel undertook to upload the decision after the proceedings.

Counsel further submitted that the provisions in the PSC are there to ensure that sufficient notice is given to a member facing disciplinary proceedings. The court needed to appreciate however, that in this case, there was a delay but no material prejudice had been established by the Appellant. There was an embargo imposed at the time for the conduct of all disciplinary hearings at the material time due to COVID 19 epidermic. The Appellant, at the hearing was asked if she was happywith proceeding and she said yes. She therefore technically waived her right to challenge the same provisions. There was also at the same time, criminal proceedings where theAppellant had to testify as a witness. This had also resulted in the delay in conducting disciplinary proceedings.

On the issue of penalty, it was Respondent’s position that it was indeed the position of law that the penalty is in the discretion of the employer. In this particular case, the member was facing a charge of corruption and the issue of corruption ordinarily goes to the root of the contract. Counsel further submitted that the Appellant had been employed in civil service for over 20 years she was a senior employee. She simply could not have been duped as suggested byher. Her explanation was thereforeunreasonable and the Disciplinarycommittee was correct in finding her guilty of the charge and imposing a dismissal penalty. In his reply, Counsel for Appellant submitted that the notification of hearing was promulgated on 7 January and 24

February 2022 this was before the COVID-19 regulations were in effect. There has been no explanation from the Respondent for the delay. Section 45 of PSC Regulations is couched in peremptory norms. It was clearly not complied with. His prayer was that the appeal had to be allowed.

EVALUATION

MERITS

Under the first ground the question that the court was seized with was whether or not the disciplinary proceedings carried out by the Respondent were valid in light of them having been conducted outside the prescribed period. The general position of the law in terms of section 18 (3) of the Labour Act [Cap 28:01] specifically provides that the employer, shall within a reasonable time, proceed with the disciplinary proceedings…This implies that any delays beyond a reasonable time may be considered unfair. There is indeed no doubt that the period from when the Appellant was charged up until the period when the hearing was carried out was a very long period. However, the Respondent submitted that it was alive to the issue of the delay and had stated its reason for such a delay was that there was an embargo on the holding of disciplinary proceedings by Public Service Commission due to the Covid-19 Regulations which hindered them from carrying out hearings. This position had been communicated to the Appellant and she had agreed to the postponement. The provision relied on by the Appellant being section 45 (1) of the PSC Regulations, however does not speak to the issue of prescription of time. It only states that within 7 days of receiving the documents referred to in paragraph (d) of subsection (3) or paragraph (d) of subsection (4) of section 44, the disciplinary committee shall give not less than 7 days’ notice to the member concerned of the time, date and place of the hearing of the allegation of misconduct against him.

The Respondent cited the South African Constitutional Court case of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (CCT33/18) [2019] as the leading case in issues of such delays. In this case the court held that a delay of the disciplinary proceedings on its own was not a basis for vitiating the proceedings and a delay on its own is not inherently unfair. To assess the issue of unfairness, the court employed six factors to assess fairness propounded in Sanderson v Attorney General, Eastern Cape [1997], these included that (a) the delay had to be unreasonable; (b) the explanation for the delay must be considered and the employer must provide an explanation that can reasonably serve to excuse the delay; (c) it must be considered whether the employee took steps in the course of the process to assert his or her right to a speedy process; (d) whether

the delay caused any material prejudice to the employee; (e) the nature of the offence committed, whether it justifies a longer period of investigation or not; (f) all the considerations must be applied, not individually but holistically. It is this Courts view that, guided by this test from our sister jurisdiction, it is common cause that this matter stretched from 2019 and was only completed in January 2023 which is an unreasonable period, however the explanation tendered for the delay is plausible being that the Covid-19 pandemic put an embargo on all disciplinary hearings. Furthermore, the employee did not take any steps in the course of the process to assert her right to a speedy process. She sat on her laurels and did not challenge the postponements of her hearing up until an unfavourable decision had been handed down to her. There was no material prejudice established by the Appellant as having resulted from the delayed proceedings.

TheAppellant also contended that part of the delayoccurred beforeCovid 19 pandemic. The Respondent submission was the matter was still under investigation. Under section 4 of the Adminstrative Justice Act [Chap 10:28] which the Appellant herself referred to, where an administrative authority, among other things , has failed to act within a reasonable period, an aggrieved person can apply to the High Court for an order directing the authority to take action. This is the approach the Appellant ought to have taken. See Triangle Ltd and others vs Zimbabwe Sugar Milling Industry Workers Union and others HH-74-16.The nature of the offence in this case was serious being as a char ge of corruption which would justify an extensive investigation period. In the case of Telone (Pvt) Limited v Communications and allied Workers Union LC/H/223/20, this court accepted the employer’s reason for delaying disciplinary proceedings due to Covid-19 lockdown restrictions and the need to prioritize employee safety. This court recognizes Covid-19 pandemic as a legitimate reason for delaying disciplinary hearing proceedings provided that the employer took reasonable steps to mitigate the delay. The reason and explanation tendered by the Respondent do warrant the delay and are therefore acceptable. On this basis, the point in limine is meritless.

ON PENALTY

Concerning the question of whether or not the penaltyimposed bythe Respondent upon the Appellant was too harsh, it is trite than an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. It is also a settled position at law that an appeal court cannot interfere with the exercise of the

discretion by the employer unless there has been a misdirection in the exercise of such discretion. In the case of Malimanjani v Central African Building Society 2007 (2) ZLR 77 (S), at 80B-C, the Supreme Court held that the issue what punishment to impose after an employee is found guilty of an act of misconduct is one of discretion. It is trite that an appeal court does not interfere with the exercise of discretion by a lower tribunal unless it is shown that discretion was improperly exercised. In considering the proceedings of the tribunal aquo, the Appellant made an admission to the fact that she had received and ignored the message from the District School instructing teachers not to make any payments for any services including job transfers and job seeking. The Appellant cited desperation and ignorance of the law in doing so. She admitted to having had no knowledge of the fact that she was indulging in an act of corruption or a violation of the Prevention of CorruptionAct. The legal doctrine ignoratia juris non excusat meaning ‘ignorance of the law is no excuse’ clearly holds that people cannot defend their actions by claiming they did not know the law. The Appellant deliberately violated the law and moreover chose not to take heed of the Districts Schools Inspector’s instruction and proceeded to make payment to the said Mr Kapito. Having been warned not to make payment the Appellant ought to have done due diligence in finding out whether or not Mr Kapito was legitimate in his workings. The Appellant cannot therefore be sympathized with for having gone against a direct instruction from her superiors. The Appellants actions clearly went to the root of the employment contract, given that corruption is a serious offence which cannot be tolerated in the Public Service or any institution. It was therefore this court’s view that the penalty imposed was justifiable. The second ground of appeal was meritless and had therefore to be dismissed.

These are the reasons for the order issued dismissing the appeal with costs.