Madubaa Taurai v Ministry of Primary and Secondary Education N.O and Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/12/2022
HARARE, 25 OCTOBER, 2021
CASE NO. LC/H/123/19
AND 28 JANUARY, 2022
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IN THE LABOUR COURT OF ZIMBABWE 	               JUDGMENT NO. LC/H/12 /2022

HARARE, 25 OCTOBER, 2021  				     CASE NO. LC/H/123/19

AND  28 JANUARY,  2022

In the matter between:

MADUBA TAURAI						             APPELLANT

versus

MINISTRY OF PRIMARY AND SECONDARY

EDUCATION N.O 					                       1ST  RESPONDENT

And

CIVIL SERVICE COMMISSION		                                 2ND RESPONDENT

Before The Honourable Kachambwa J

For the Appellant			: 	C Mahlangu (Legal Practitioner)

For the 1st Respondent	          :        C Chitekuteku (Legal Practitioner)

KACHAMBWA J:

The Appeal

1.	This is an appeal by a teacher.  It is against the decision of the Civil Service

Commission of Zimbabwe wherein it found the appellant guilty of the misconduct of improper association with a pupil and imposed a penalty of dismissal.  The appeal is against both conviction and the penalty.

The Grounds of Appeal

2. 	The short and long of the grounds of appeal is simply that

1.  the evidence led does not support the conviction more particularly in view of the   unexplained contradictions by the complainant pupil and her friend.

2.  the disciplinary authority erred  by imposing a penalty without giving the appellant an opportunity to address in mitigation.

The appellant also raised grounds of appeal on the issue of proposing love to the complainant.  There was no such charge.  There was no evidence led on that charge and there was no finding on that charge.  This is probably just a sign of the venom with which the appellant is pursuing his case.

The Background

3.	 The appellant was employed as a teacher by the Civil Service Commission of

Zimbabwe.  He was stationed at Chimbumu Secondary School in Guruve District, a district of Mashonaland Centre Province.  A complaint was raised by a pupil, Pamela Masiya, who was in Form 2,that the appellant had, on the 6th of June 2018 between 9:45 am and 10:20 am, forcibly fondled the said Pamela on the breasts.  One hand fondled the breasts while the other hand closed the girl’s mouth.  This was said to have taken place in the appellant’s office after the appellant had assigned Pamela and her friend to carry books to that office.  The complainant could not immediately report to any teacher because there were none in the staffroom and, she could not locate her preferred teacher anyway.

4.	A hearing was held where the complainant literally disowned her personally written statement.  Her evidence was contradicting with itself and with that of other witnesses.

5.	The appellant gave notice that he would not address in mitigation before the                    outcome of the hearing.  He was not invited to address in mitigation before the penalty was decided.

6.	The appellant was found guilty without any specific analysis on the contradictory evidence.  There was no specific analysis either of the appellant’s evidence.

The Response To The Appeal

7.	The 1st respondent filed a response while the 2nd respondent did not.  It said that                                                         the appellant failed to challenge the complainant’s evidence.  On the issue of mitigation it said that it is not a ground of appeal and further it made no difference as the misconduct went to the root of the employment contract such that there was only the penalty of dismissal.

The Question(s) For Determination

8.	There are two questions to be determined. The first question is the, sufficiency    of the evidence.  The second question is the effect of failure to allow the appellant to address in mitigation.  The first question is an issue of fact while the second is an issue of the law.

9.	The sufficiency of the evidence is attacked on the contradiction of the complainant’s evidence.  The contradiction is admitted to the extent that the complainant herself denies her written evidence.  In such a situation the witness has a duty to explain the discrepancy.  If the explanation is satisfactory then her/ his new evidence is acceptable.  The Court also has a duty to explain why it accepts one version against the other version of the evidence.  If the two are not done the evidence is left contradicting.  It will not have proved the charge because there is more than one version of the evidence.  It is accepted that proof is on a balance of probabilities.  However where there is more than one version the Court must explain why it has accepted one of the versions from the same witness.

10.	It will be noted that the complainant said that she wanted to report to Patience Chimbufe but could not find her.  When Chimbufe gave her evidence she said that she never left her classroom even at lunch time.  That is another piece of evidence that needed to be explained.  This is also in light of the formular of the witnesses’ written statements that the appellant questioned and the witnesses denied being told how to write the statements. Such a style cannot be coincidental.  One of the statements is even in the plural.  The salutation and the use of the word “harassing” is remarkable.  This justified the appellant’s questioning of whether the statements were independently made.  Such a coincidency, if it is, needs an explanation.  There is none.

11.	The law on findings of fact is clear that an appeal court must be slow in interfering with the lower Court’s decision on such issues.  The case of Hama v National Railway of Zimbabwe 1996 (1) ZLR 664 is probably the classical case on this point.  Therein Korsah J, at page 670 says that-

“--- an appeal Court will not interfere with a decision of a trial Court based purely on a finding of fact, unless it is satisfied that, having regard to the evidence placed before the trial Court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a decision.”

Thus we ask ourselves whether it was sensible to arrive at the decision of guilty.  Unless the contradictory evidence is explained and the choreographed statements are explained it does not look safe to convict.  While we accept the need to protect the pupils from misguided teachers we should also be careful not to destroy the livelihoods of the innocent.  This appears to be a case for interference with the findings of fact of the trial court and accordingly the verdict of guilty will be upset.

Denial To Address In Mitigation

12.	Once the Court accepts that the finding of guilty is wrong the question of penalty falls out.  However in principle a person found guilty has the right to address in mitigation before a penalty is imposed.  Failure to allow him/her to do so is a procedural flaw the result of which is to set aside the penalty and either refer the matter back for such address and sentencing or for the appeal Court to take  a robust approach and deal with the mitigation and penalty.  In other words it should not lead to reinstatement of the appellant as such.  Further, this issue is more of a procedural issue which should come by way of review unless one is attacking the penalty without the issue of denial of the chance to address in mitigation.

13.	It was argued that addressing in mitigation is irrelevant because the penalty is invariably one of dismissal.  That may be the penalty but the right to address in mitigation may not be denied.  Such denial would tend to prove that the penalty was preconceived.  The right may not be arbitraril denied.  After all the penalty is not cast in stone.  The two cases of Chairman PSC and Anor v Marumahoko 1992 (!) ZLR 304 (5) and Marumahoko v Chairman PSC and Anor 1991 (1) ZLR 27 (4) are very much to the point.  The later case says

“As for the contention that a fair hearing would have made no difference.  Lord Wright in General Medical Council V Spackman [1943] AC 627 at 644-5; [1943] 2 All ER 337 (HL) at 345 disposed of this most admirably when he said:

“If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice.  The decision must be declared to be no decision.”

Again, in John v Rees [1970] Ch 345 at 402; [1969] 2 All ER 274 at 309 Megarry J forcefully observed:

“It may be that there are some who would decry the importance which courts attach to observance of the rules of natural justice.  ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?  The result is obvious from the start.’  Those who take this view do not, I think, do themselves justice.  As everybody who has anything to do with the law well knows, the path of law is strewn with example of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.  Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

At the same time the Supreme Court case says –

“ .. It will be impossible to determine what penalty is appropriate without further information …. the commission may be forced to hold an inquiry even when the guilt of the accused is established in order to determine the extent of that guilt and thus to assess the appropriate penalty.  Otherwise it was the risk of imposing an irrational penalty “

From these two decisions the right to address in mitigation is reinforced.

14.	In the result of this case it is the Court’s finding that it was not safe to convict.  Accordingly the appeal must succeed.  It is ordered that-

1.	The appeal be and is hereby upheld.

2.	The decision of the disciplinary authority be and is hereby set aside.

3.	The respondents be and are hereby ordered to reinstate the appellant            without loss of salary and benefits from the date such salary and benefits were stopped.

4.	If reinstatement is no longer possible the respondents shall pay damages in lieu thereof the quantum of which may be agreed between the parties failing which agreement either party may approach the Court for quantification.

5.	the respondents pay the costs.