Murevegw Hwaire v The Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/460/2016
HARARE, 16 MARCH 2016
CASE NO. LC/H/320/15
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/460/2016

HARARE, 16 MARCH 2016				  CASE NO. LC/H/320/15

AND 22 JULY 2016

In the matter between:-

MUREVEGWI HWAIRE						Appellant

And

THE MINISTER OF PRIMARY AND				1st Respondent

SECONDARY EDUCATION

And

THE CIVIL SERVICE COMMISSION				2nd Respondent

Before Honourable R.F. Manyangadze, J

For Appellant		Mr T. Muchineripi (Legal Practitioner)

For Respondents		Ms V. Munyoro (Civil Division)

MANYANGADZE, J

This is an appeal against the determination of the respondent’s disciplinary authority, which found the appellant guilty of misconduct and discharged him from the Public Service.

The appellant was employed by the respondent as a teacher, and was based at Chinyika Secondary School, Goromonzi District, Mashonaland East Province.  In October 2012, he was charged with misconduct, in terms of the Public Service Regulations Statutory Instrument 1 of 2000, paragraph 1, 7 and 24 of the First Schedule (the Regulations).

The factual particulars of the misconduct were that the appellant improperly associated with minors, who were pupils at the school where he was stationed.  He made inappropriate remarks to Natasha Ngarura, a form 2 pupil, to the effect that she was beautiful and had sexy breasts.  He allegedly asked to take her out for a picnic.  It was also alleged he made her pick up papers during lesson time.

Further to that, it was alleged that the appellant made sexual advances to Natasha and two other form 2 pupils, twin sisters Tariro and Tendai Shato.  He allegedly patted them on their cheeks and forehead.

On 26 August 2013, the respondent’s Disciplinary Authority found the appellant guilty of misconduct.  It found him guilty of all the charges except the one relating to abusing Natasha by making her pick up papers during lesson time.

The appellant appealed to the Labour Court, which set aside the dismissal on procedural grounds.  It did not determine the matter on the merits but set aside the dismissal on procedural grounds, and ordered that the matter be heard de novo.

In compliance with the Labour Court judgement, the respondent convened another disciplinary hearing on 3 February 2015.

In a determination handed down on 24 March 2015, the Disciplinary Authority found the appellant guilty of misconduct on the charges relating to Tariro and Tendai Shato.  It found him not guilty of the charges relating to Natasha as she did not attend the hearing.

Aggrieved by this determination, the appellant noted an appeal with this court.  He also filed an application for review, which this court dismissed in a judgement handed down on 22 January 2016.  The grounds of appeal are stated as follows

“1st Ground of Appeal

1.	The Disciplinary authority and the disciplinary committee erred and misdirected themselves in law by wrongly finding and recommending the appellant’s guilty respectively in respect of making sexual advances to Tendai and Tariro Shato on the 28 September 2012, notwithstanding that there was no evidence to prove the said allegations on a balance and/or preponderance of probabilities, moreso as they were faced with appellant’s intact and consistent version against the incoherent and inconsistent versions of the witnesses, and in breach of section 45 (2) of S.I. 1 of 2000, which demands that substantial justice ought to be done in matters of this nature):

Which finding is not supported by the evidence on record as the appellant denied the allegations throughout the hearing to the extent that there was no basis to disbelieve him and opting to believe is accusers.

As such the Disciplinary Committee unlawfully recommended his conviction whilst the disciplinary authority unlawfully found appellant guilty, which vitiates the conviction and the dismissal penalty imposed herein, rendering same liable to be quashed as prayed for herein.

Appellant ought to have been found not guilty in the manner the disciplinary authority correctly found in respect of allegations in relation to Natasha Ngarura where the appellant was given the benefit of doubt.

2nd Ground of appeal

2.	The Disciplinary authority further erred and misdirected itself in law by finding the appellant guilty of 3 separate charges lumped together on the same facts (i.e. paragraphs 4, 7 and 24 to the first schedule of S.I 1 of 2000 preferred herein which were not in the alternative, as they all stood as stand alone charges, but on the same facts, throughout.

2.1	Consequently, the conviction is bad I law as one cannot be guilty of 3 separate charges all at once and on the same facts in the manner done herein as the dismissal letter of 24th March 2015 (annexure “G”) does not state he was acquitted of any of the 3 (para 4, 7 and 24) and found guilty of which one of the 3 charges but simply says you are found guilty meaning of all the 3 preferred separate charge contained in the charge letter of the 28/08/12 and ought to be quashed, as a legal nullity.

2.2.	It ought to have stated you are found guilty of paragraph …. (but without conceding to the fact that he ought to have been found guilty of any of the 3) and acquitted of the other paragraphs.

PENALTY

3rd Ground of Appeal

3.	In the alternative, and unlikely event that the conviction be upheld, then it will be argued that the appellant was wrongly, inappropriately and unlawfully sentenced to a too harsh a penalty which induces shock and revulsion in total disregard of the provisions of section 50(1) (c), (d), (e), (f), (i), (j) and (m) (2) of S.I 1 of 200 as amended, to the extent that no reasonable tribunal which had applied its mind to the facts of this matter would have arrived at that decision in its defiance of logic, substantial justice, equity and fairness, in breach of section 45(2) of S.I 1 of 2000 (which demands that in matters of this nature substantial justice be done), moreso disciplinary action ought to be educational, corrective in the 1st instance and then punitive as a last resort and for repeat offenders where there are no other optional penalties and not to be punitive at the first instance of the appellant being charged as a first offender which was vindictively done in casu.

4th Ground of Appeal

4.	The Disciplinary Authority seriously erred and misdirected itself in simply basing its penalty on aggravation features without striking a balance between mitigation and aggravation factors as required at law, which renders the penalty herein capricious, draconian ad vindictive in such proportions which culminated in a serious miscarriage of justice, as a judicious penalty should be predicated on a delicate balancing of both mitigation and aggravation factors and not aggravation only as was the case herein, which prejudiced and appellant, and robbed him of a chance to have substantial justice being done to his case as required by section 45 (2) of S.I 1of 2000."

In the first ground of appeal the essential averment is that there was no evidence of “sexual advances” to Tendai and Tariro.  That the appellant made sexual advances to the two girls, is the gravamen of the charge against him.  That there was no evidence to prove the allegation of sexual advances, is the gravamen of the appeal.

The facts constituting the alleged sexual advances basically came from the girls themselves.

Minutes of the disciplinary hearing record Tariro’s evidence as follows:

“Tariro	Mr Hwaire came to us and greeted us.  Vakati mhori shamwari dzangu. (He said how are you my friends) vakabva vandirova pamatama. (He then patted me on my cheeks) but I was not happy about 1t.  He then patted Tendai on the cheeks.  When she patted Tendai Natasha on the forehead she then frowned her face.

Chairperson	Pane pamakazvinyora pasi.  (Did you write it down)

Tariro	Ehe, takadeedzwa one by one nalady teacher. (Yes, we were called one by one by the lady teacher) we were then called by parents on 12 September 2012.

Mr Chiparaushe	How many times did this happen?

Tariro	To me he did it on that day when we were seated while others were in the Dance show.

Mr Chiparaushe	How did he patt you?

Tariro	He patted me on the fore head and cheeks.

Mr CVhiparaushe	What was that meaning to you?

Tariro	I don’t know but I was not happy about it.”

The minutes record Tendai’s evidence as follows:

“Tendai	Mr Hwaire came and told us to go home and we told him that we are waiting for someone.  He then touched my fore head.”

That is all there was from Tendai as to what happened to her.  It was to the effect that the appellant told them to go home.  There is no mention of a friendly greeting, as stated in Tariro’s evidence.  There is also no mention of the petting on the cheeks.  She only mentions that “he only touched my forehead”.  This was after the appellant told them to go home.  She then had to explain why they were there – that they were waiting for someone.

It is not clear, from the two girls’ versions, which are obviously not consistent with each other, as to exactly what happened.  Tendai’s version creates the impression that the appellant reproached them for being where they were, hence her statement “he told us to go home and we told him we are waiting for someone”.

Their rather terse versions do not describe how they were patted and touched on cheeks and forehead.  The Shona words used by Tariro “vakabva vandirova pamatama” in fact create more confusion as to what the appellant did.  It might have been necessary to clarify whether that expression was properly and accurately translated to “he patted me on my cheeks”.

There is a clear and important reason for clarity and particularity on what the appellant did.  The conduct complained of is making sexual advances to the two girls.  In the charge letter, on page 23 of the record, particulars of the misconduct are clearly stated as;

“4.	In term 3 on 28 September 2012 in the afternoon on a dance day, you went to the form 2M classroom block and made some sexual advances to not only Natasha but also to Tariro Shato and her twin sister, Tendai Shato who are also form 2M students.  You patted Tendai on the cheeks and Tariro and Natsha on their foreheads which resulted in the exchange of vulgar words with Natasha.” (emphasis added)

In its determination of 24 March 2015, the disciplinary authority’s verdict of guilty was specific to the allegations of sexual advances.  The relevant portion reads;

“You are found guilty on the allegation that you made sexual advances to Tendai Shato and Tariro Shato who were form 2M students at Chinyika Secondary School on 28 September 2012.” (emphasis added)

Given the terse and unclear versions of Tariro and Tendai, it is difficult to appreciate on what basis this verdict was reached.

The respondent’s heads of argument were not helpful on this critical issue, of whether Tariro and Tendai’s testimonies establish the alleged sexual advances.  It appears the respondent skirted this issue.  Paragraphs 21 to 32 of its heads of argument deal with the appeal.  Of these, only paragraphs 21 to 23 deal with the aspect of conviction.  The rest are devoted to the aspect of penalty.  Of the three paragraphs touching on the question of conviction, paragraphs 22 and 23 deal with the second ground of appeal, on the lumping up of charges.  This leaves only paragraph 21 dealing with the challenge raised in the first ground of appeal – the sufficiency of the evidence on record.  This is all the paragraph states;

“APPEAL

The disciplinary committee did not err at law neither was the factual conclusion leading to the legal conclusion wrong at law.  The proof on a balance of probabilities was adequately laid out. Evidence was there and was suffice enough to have appellant convicted.”

This is all the respondent averred, in response to the attack on the propriety of the conviction vis avis the evidence adduced to support such conviction.  It is a broad and general averment.  It does not demonstrate how the evidence establishes the alleged sexual advances, how the patting on the forehead and the cheeks constituted sexual advances.  The onus was clearly on the respondent to establish the allegations. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S).

The evidence, from Tariro and Tendai was too tenuous to support the alleged sexual advances.  The averments made are clearly different from those relating to Natasha, who did not come to give evidence, resulting in appellant’s acquittal on charges relating to her.  The facts alleged, had they been established by Natasha’s testimony, would undoubtedly have secured a conviction.  They included comments on Natasha’s sexy breasts, and an invitation to a picnic.  The same cannot be said about Tariro and Tendai, given the evidence relating to them.

In this matter, one cannot help getting the unfortunate impression in that the respondent, realising that the appellant got off the hook by virtue of Natasha’s absence, was determined that he should again not be let off the hook, notwithstanding Tariro and Tendai’s tenuous evidence.

There was, in my view, a serious misdirection on the part of the disciplinary authority in finding the appellant “guilty of allegations of making sexual advances to Tariro and Tendai Shato”, when the facts did not support such a finding.  Given this serious misdirection, there is justification for interfering with the verdict.  See Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S).

If the first ground of appeal is upheld, it is not necessary to delve into other grounds.  These relate to the propriety of the charges and the penalty.  If it is held that there was no evidence establishing the alleged sexual advances as particularised in the charge, that in my view disposes of the appeal.  It must be allowed on that basis.

It is accordingly ordered that;

The appeal be and hereby allowed.

The determination of the respondent’s Disciplinary Authority dated 24 March 2015 be and is hereby set aside.

The appellant be and hereby reinstated to his employment with the respondent without loss of salary and benefits with effect from the date of dismissal.

If reinstatement is no longer tenable, the respondent shall pay the appellant damages in lieu of reinstatement.  The quantum of such damages shall be agreed upon by the parties, failing which either party may approach the court for quantification thereof.

The respondent shall pay the appellant’s costs.

Messrs Muchineripi and Associates, appellant’s legal practitioners