Melver Muringani V Minister OF Primary AND Secondary Education AND CIVIL Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/778/2016
HARARE, 06 JULY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE    JUDGEMENT NO. LC/H/778/2016

HARARE, 06 JULY 2015                                         CASE NO. LC/H/141/15

AND 2 DECEMBER 2016

In the matter between:

MELVER MURINGANI						Appellant

And

MINISTER OF PRIMARY AND SECONDARY		Respondent

EDUCATION

And

CIVIL SERVICE COMMISSION					2nd Respondent

Before the Honourable B.T Chivizhe: Judge

For Appellant:	 Mr E. Matika (Legal Practitioner)

For Respondent:	 Mr H. Magadure (Civil Division)

CHIVIZHE, J:

This is an appeal against a determination issued by the Disciplinary Authority on the 8th of July 2014 which determination upheld an earlier determination by the Disciplinary Committee to discharge appellant from service with effect from after duty on the 11th of July 2014. The appeal is opposed.

The material background facts to the matter are as follows. The Appellant was employed as a School Accountant stationed at Shiriyedenga Primary School. She was charged on the 14th August 2013 for contranvening the Public Service Regulations, Statutory Instrument 1 of 2000 in particular paragraphs 3, 8, and 24 of the First Schedule to the same Regulations. The allegations on which the charges were levelled were that:

(1)	She had failed to issue receipts on collected money for report books.

(2)	She had failed to issue receipts for money received for School trip.

(3)	She had failed to bank money within stipulated time.

(4)	She had failed to take care of a cash box resulting in it being stolen.

The Appellant appeared before a Disciplinary Committee on the22nd October 2013 and was found guilty on all the three charges. The Disciplinary Committee recommended a penalty of discharge from service to the Disciplinary Authority. The Disciplinary Authority on the 8th of July 2014 found the Appellant guilty as charged and imposed a penalty of discharge from service with effect from after duty on the 11th of July 2014.

The Appellant was aggrieved and noted an appeal against the determination. The Appeal has been noted on the basis of the following grounds:

1)	The disciplinary authority erred at law in finding the Appellant guilty of failure to issue receipts and failure to bank ignoring the fact that an admission to the actus reus does not necessarily entail admission to the mens rea.

2)	The disciplinary authority grossly erred in relying on evidence that was not adduced in the hearing thus wrongly finding the Appellant guilty of failure to issue receipts.

3)	The disciplinary authority also erred at law in finding the Appellant guilty of negligence failing to take account that the security system at the school was not tight and the keys were kept at a public place.

4)	The disciplinary authority erred at law in coming up with a penalty of discharge from the service ignoring the gravity of the offence and the circumstances of the misconduct alleged.

The first ground attacks the findings by the Disciplinary Authority on the basis that the body erred at law in finding Appellant guilty on the charges where no mens rea or proof of intention had been established.

The Appellant submission on that point is that the record of proceedings discloses that the Disciplinary Authority found the Appellant guilty on the basis of her purported admission to the charges to Disciplinary Committee that body, however failed to establish mens rea on the part of Appellant to commit the alleged charge. This was more especially as Appellant presented a defence to each of the charges. The Disciplinary Authority had however failed to consider or weigh these defences as presented.

The Appellant counsel gave the example of the charge of failing to issue receipts for money received for report books. The Appellant submission is that she had before the Disciplinary Committee proffered a defence that she did not issue receipts on the basis of a directive of her superior in the form of the Headmaster of the school. In respect of the second allegation of failing to issue receipts for moneys received for trips she again had tendered a defence that the money she received came from teachers who had not requested for receipts. In respect of the charge for failing to bank within stipulated time she submitted that before banking there is a prior process of mastering which has to be done by the Headmaster. In this case the mastering had not been done so her submission was there was therefore no mens rea to commit the act of misconduct.

The Respondent’s submission on the ground of appeal is that the offences /acts of misconduct levelled against Appellant did not require proof of intention. In any event she admitted to the charges. She did not give defences to the charges as suggested.

The submission by the Appellant on this point is clearly misplaced. It is trite at law that in criminal proceedings the state has to prove beyond reasonable doubt that an accused is guilty of an offence. The state is therefore obligated to prove actus reus as well as mens rea to commit the offence on the part of the accused person. However in civil cases the position is that the party bearing the onus to prove its case has to do so on a balance of probabilities.  The standard simply means that the version by the party who bears the onus (In this case the employer) must be more probable than the version of the other party (the employee). The issue therefore before the Disciplinary Committee was whether the employer had discharged the onus on it to prove on a balance of probabilities that the Appellant had committed the acts of misconduct levelled against her.

It is also important to note that even if the Appellant raised the defences she claim to have raised before the Disciplinary Committee that would only have had the effect of shifting the onus from  her employer to the employee. So for an example where she claimed on the last charge that it was the Headmaster who had failed to do mastering the burden would now rest on her to prove that the Headmaster had indeed failed to do mastering so she had failed to bank at the stipulated time. The record of proceedings clearly does not show that she was able to prove these submissions made in her defence to the charge. The Appellant having failed to discharge the evidentiary burden on her the Disciplinary Authority properly found her guilty on the charges.

In the second ground of appeal Appellant takes issue with the findings by the Disciplinary Authority on the basis that the body found her guilty in the absence of crucial evidence. The Appellant refers specifically to the finding made that she was guilty of receiving money for trips where the Disciplinary Authority then stated “A parent confirmed that you did not give him receipts.”  The submission by Appellant is no such evidence was adduced before the Disciplinary Committee. The Respondent position on the ground is that Appellant is merely making a bare denial she must however be put to the strictest proof on her averments.

The ground of appeal is again without merit. Whilst it is indeed correct as alluded that no evidence was adduced from any of the parents of children who paid for the school trip the record however clearly shows that the Appellant failed to issue receipts when she received the money from the teachers. In response to a question on page 20 of the record she replied as follows;

Member:	“I asked the teachers to wait for receipts but they refused vachiti vanga vaneta nekumira. I did not give them receipts I know I erred I should have given them receipts and gone to the Head for mastering.”

The Appellant clearly admitted to failure to issue receipts.

Admittedly she qualified her response by stating that the teachers refused to wait for the receipts. That however was a flimsy defence to the charge. She was employed as an accountant. She was aware of the proper procedure to follow upon receipts of money. She however clearly failed to issue receipts as required under those procedures. The Appellant clearly cannot be exonerated on the basis of the error made in the findings by the Disciplinary Committee where they refer to non- existing evidence. Notwithstanding that error the Appellant was properly found guilty on the charge for failing to issue receipts after receiving money.

The record of proceedings also clearly shows that she sought to provide an alibi to the charge of failing to bank the money that the Headmaster had refused to grant her permission to go for banking (page 5). She also at page 9 sought to argue that the Headmaster should have first done the mastering. She stated as follows;

“Ivo Headmater does mastering while I do banking. Ini banking ndaita, hapana pandakaita over banking asi apa handizive kuti chii chakandibata kuti ndisaende kubank.”

The Appellant presented no defence to the charge of failing to bank the money as required under the procedures. She tried unsuccessfully to put the blame on the Headmaster for failing to do the mastering. She failed however to discharge evidentiary burden on her to prove that point. The Disciplinary Committee in the circumstances did not err in finding that the employer had discharged its overall onus of proving the charge of failing to bank money as required.

In the next ground Appellant argues that she was wrongly found guilty for failing to take reasonable care of the cash box resulting in the cash box stolen. Her defence before the Disciplinary Committee and before this court is that the office she was using was a shared office and the keys to the office were generally accessible as they were stored on a board. Other persons in that office such as the Head, Deputy Head or Teacher In Charge could have access to them. Her defence is due to the laxity in the security system she should not have been held responsible for the theft of the cash box.

The charge levelled against the Appellant is akin to a charge of negligence. The employer in my view was able to establish before the Disciplinary Committee that the Appellant having been engaged as an Accountant knew that the cash box was a security item which was supposed to be kept in a safe place; she was aware of the lax security system in the office; she however against that background had left the cash box under her table and hanged the keys on a board in circumstances where both cash box and keys were accessible to anyone entering the office. The Appellant was also clearly aware of standard procedure of storing security items as she ought to have done. This  is evidenced by her reply to a question posed on page 20 where she replied as follows:

“D.C. Security items dzinochengetwa sei?

Answer; Ndaifanira kuisa cash box musafe and lock the office and then go for break.”

The Appellant was in the circumstances properly found guilty for failing to take reasonable steps or proper care of the cash box.

The last ground is that the penalty of discharge imposed was excessive in the circumstances. It is a trite principle that penalty is within the employer’s discretion. An Appellate Court cannot just interfere with the exercise of discretion by an employer unless there has been a clear misdirection or gross unreasonableness. The facts and evidence indicate that Appellant committed very serious offences. The Disciplinary Authority on the basis of section 50(1) of the Regulations had a wide discretion including imposing of penalty of dismissal, demotion, transfer e.t.c. They felt however, that dismissal penalty was appropriate in the circumstances. The discretion was in my view properly exercised by the body. The Appellant has not established before me any basis for this court to interfere with the penalty so imposed.

The appeal is accordingly dismissed with costs.

Munyaradzi Gwisai & Partners, Appellant’s legal practitioners