Murevegwi Hwaire V THE Minister OF Education & CIVIL Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/30/16
HELD AT HARARE 5TH OCTOBER 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/30/16

HELD AT HARARE 5TH OCTOBER 2015			CASE NO LC/H/320/15

& 22nd JANUARY, 2016

In the matter between:

MUREVEGWI HWAIRE					Applicant

And

THE MINISTER OF EDUCATION &			Respondent

CIVIL SERVICE COMMISSION

Before The Honourable R F Manyangadze, Judge

For Applicant			Mr T Muchineripi (Legal Practitioner)

For Respondent		Ms R Hove (Legal Practitioner)

MANYANGADZE, J:

This is an application for review of the disciplinary proceedings conducted by the respondent’s Disciplinary Authority on 3 February 2015, which resulted in the applicant being found guilty of misconduct and being discharged from employment as a consequence thereof.

The background to the matter reveals protracted disciplinary litigation dating back to 2012.  The applicant was employed by the respondent as a teacher, and was stationed at Chinyika Secondary School, in the 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, paragraphs 1, 7 and 24 of the First Schedule to the Public Service Regulations. (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 applicant made sexual advances to Natasha and two other Form 2 pupils, twin sisters Tariro Shato and Tendai Shato.  He allegedly patted them on their cheeks and forehead .

On 26 August 2013, the respondent’s Disciplinary Committee found the applicant 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 applicant appealed to the Labour Court, which set aside the dismissal on procedural grounds.  In its judgment of 26 September 2014, the Labour Court set aside the dismissal, and ordered that the matter be heard de novo.

In compliance with the Labour Court judgment, the respondent convened another disciplinary hearing on 3 February 2015.  In a determination handed down on 24 March 2015, the Disciplinary Authority found the applicant guilty of misconduct on the charges relating to Tariro and Tendai Shato.  It found him not guilty on the charges relating to Natasha as she did not attend the hearing.

Aggrieved by this determination, the applicant noted an appeal with this court.  Simultaneously, he filed an application for review.

At the hearing of the matter, it was agreed that the application for review be dealt with first.

The grounds for review are basically two, prescription and bias.  In an endeavour to elaborate the allegation of bias, the applicant made numerous factual allegations, making it appear as if there are several grounds for review.  These grounds, numbered 2 to 5, in essence constitute details of the alleged bias.

In the first ground for review, it is averred that the dispute is prescribed.   It arose in 2012, and was dealt with in 2015, when the determination dismissing applicant from employment was handed down by the respondent’s Disciplinary Authority. The applicant relied on section 94 of the Labour Act [Chapter 28:01] (the Act) which prescribes a period of two years within which a dispute must be entertained.

Section 94 of the Act deals with labour disputes referred to a “labour officer”, in terms of the Labour Act.  I do not see how it has been cited in relation to disciplinary matters conducted in terms of the Public Service Act , [Chapter 16:04].  Section 31 of the Public Service Act empowers the Public Service to make regulations governing, among other things, the discipline of members of the Public Service Commission.  Nowhere in these regulations is reference made to labour officers, who operate within the provisions of the Labour Act.  In the circumstances, I agree with the respondent’s submission that the prescription provision cited does not apply to members of the Public Service Commission, whose disciplinary issues are dealt with in terms of the Public Service Regulations.

Further to that, when the disciplinary hearing in question was conducted on 3 February 2015, it was pursuant to a court order issued on 26 September 2014, 5 months earlier.  The court ordered that a hearing be held de novo.  To raise the issue of prescription, computed from 2012, would be to render that court order a nullity.  The hearing of 21 March 2013, the order for a hearing de novo of 21 September 2014, the re-hearing of 3 February 2015, all had the effect of interrupting prescription, even if it was held to be applicable.

There is no prescription to talk about in this matter.  This ground for review is completely devoid of merit and cannot be upheld.

The second ground for review alleges bias.  In particular, it alleges that the record of disciplinary proceedings was doctored.

A perusal of the minutes of the disciplinary hearing conducted on 3 February 2015, does not in my view reveal that there was bias in the conduct of the proceedings.  The record shows that the applicant was accorded a chance to explain his response to the charges.  It also shows that the witnesses called were cross-examined by the applicant’s legal practitioner. The chairman does not assume undue prominence in the proceedings. He asked what may properly be viewed as appropriate questions.  For example, at page 36 of the court record, he asked

Q	“It’s being alleged that the Head trumped up the charges against you.”

The applicant’s response was;

“I was not in good books with the SDC, he always call me that I am not doing what the SDC like.  When we held the AGM the Head instructed us to vote in favour of Mr Marimbizhike and also the Head saw me at the Provincial Office in the PED’s office.  Taisawirirana naHead because takaramba kuenda kumeeting (we were not in good books with the Head because we refused to attend the meeting) he then warned me and Mr Sigauke.”

The applicant, it appears, was given ample opportunity to explain his case.  The witnesses were called upon to give their versions of what happened.  They were subjected to what appears to be uninterrupted cross-examination.

In the light of this, it is difficult to sustain the allegation of bias or doctoring of the minutes of the hearing.  Ex facie the record, there is no evidence of bias or doctoring of such record.

The respondent submitted, correctly in my view, that there is no specificity in the serious allegations made by the applicant.  He has not shown in what way the record was doctored.  It is a serious matter if a disciplinary committee were to sit and connive to come up with a false record of the proceedings it presided over.  Any allegation that it did so must be satisfactorily substantiated.

The applicant made reference to some portions of the record, alleging that the questions were improper and of a leading nature.  The excerpts are in paragraph 6.5.1 of applicant’s heads of argument; which reads:

“i)	In leading Tariro Shato

“Tariro Shato:		……………….. we were then called by the parents…”

“Mr Chiparaushe:  	How many times did this happen?...

ii)	“Chairperson:	Are you aware of the incident which happened on Friday 28th of September 2012 …. (in leading Tariro Shato)”

iii)	In leading Mrs Muganhu:

“”Chairperson:	You assisted in gathering information on the issue of Natasha, Tendai and Tariro can you describe what really transpired and what you discovered…”

It is difficult to appreciate on what basis these questions can be said to be of a leading and inappropriate nature.  The Disciplinary Committee is prompting the witnesses to state what they knew about the facts in issue.  It is not supplying the information. The information is coming from the witnesses themselves.

The applicant also avers that the charges were improperly lumped.  Three separate charges emanated from the same facts.

The respondent explained that the employer is not restricted to one count in a charge of misconduct.  The paragraphs under which the applicant was charged show separate offences with which he could be competently charged.  It was up to the employer to prefer those charges.

The respondent further contented that the applicant seems to be importing rules of criminal proceedings into disciplinary proceedings.  The Disciplinary Authority was guided by section 45 (2) of the regulations which provides that:

“The hearing shall be conducted without the need to observe the rules of procedures and evidence ordinarily applicable in criminal or civil proceedings, provided, however, that the member concerned is afforded the opportunity to respond to every allegation of misconduct and that substantial justice is done.”

As already indicated, the applicant was afforded the opportunity to respond to all the allegations he was facing.  It cannot be said that he was prejudiced in his response to the charges in question, and the particulars thereof.

On the allegation that reference was made to a charge dating back to 2007, the respondent explained, in its Notice of Response, paragraph (6), that the Disciplinary Committee never made reference to the 2007 charge during the hearing.  Whilst it was improper to mention this in the charge sheet, the issue was however not canvassed in the hearing.  The impropriety of its mention in the charge sheet does not go to the extent of rendering the entire proceedings a nullity.  The charges he was facing were put to him.  He responded accordingly. He was acquitted where the Disciplinary Committee felt there was no evidence, and was convicted where the Committee was of the view that there was evidence.  At the end of the day, improper reference to the 2007 charge was rendered irrelevant.  There is nothing to show that it influenced the Committee’s deliberations and findings.

Another averment, which the applicant placed quite a lot of emphasis on, was that Mr J Guri improperly acted as the Disciplinary Authority.  He should not have done so when he was involved in the disciplinary hearing of 3 February 2015 as alternate Chairman.

The record shows that Guri was not part of the Disciplinary Committee of 3 February 2015, which  heard the matter de novo.  This committee comprised the following officials:

Mr P Chisindi – Acting Provincial Education Director (Chairperson)

Mr C Chiparaushe – Education Inspector (Member)

Mr S Tsindikidzo – Education Inspector (Member)

This is the Disciplinary Committee that heard applicant’s case, and made its recommendation to Mr Guri, in his capacity as the Disciplinary Authority.

It is not clear where the applicant got the information that Guri participated in the hearing.  Even the record of 21 March 2013, the initial hearing, does not show that Mr Guri participated.  Minutes of the hearing of 21 March 2013 show that the following officials constituted the Disciplinary Committee:

Mr P Chambeni – A/D Provincial Education Director (Chairperson)

Ms N Sengwayo – Human Resources Officer (Member)

Mr T Moyana – Human Resources Officer (Member)

This committee made its recommendations to Mr S Matchaka, the Provincial Education Director, in his capacity as the Disciplinary Authority.

The issue of Mr Guri’s involvement in previous hearings is not borne out by the  record.

There is, in the record, a letter dated 16 January 2015, notifying the applicant of the hearing of 3 February 2015.  This letter was signed by Mr Guri and he is cited as Chairperson Disciplinary Committee.  The letter cites Mr Chiparaushe and Mr Nyaguto as members of the Disciplinary Committee.   It also cites Mr Chisindi, Mr R T Matimbe, Mr Makoni and Mr Tsindikidzo as a reserve committee.  The committee that heard applicant’s case was eventually made up of Mr Chisindi as chairperson, and Mr Chiparaushe and Mr Tsindikidzo as members.  Mr Guri was out of the picture.  It appears his participation was only in writing a notification of hearing to the applicant.   He was not part of the hearing himself.

In the circumstances, there is no basis for imputing bias to Mr Guri, as the Disciplinary Authority.  In that capacity, he acted on the recommendations of the Disciplinary Committee, which he was not part of.  I therefore find no impropriety in the discharge of his duties as the Disciplinary Authority.

The applicant has also raised the issue of dirty hands.  His averment is that the employer could not proceed with the re-hearing before paying him his back pay and benefits.  Failure to do so vitiates the disciplinary proceedings and renders them a nullity.

The respondent pointed out that the Public Service Commission informed the applicant that his back pay and allowances would be dealt with at the finalisation of the matter.  This communication is in the Public Service Commission’s letter of 18 November 2014 to the applicant.  The applicant’s dismissal was set aside, in compliance with the Labour Court order of 26 September 2014.  However, the applicant was immediately placed on suspension, pending fresh disciplinary proceedings.  In other words he reverted to his status as a suspended employee.

Further to that, a reading of the court order of 26 September 2014 shows that the obligation to reinstate the applicant arises upon failure to institute a hearing de novo.  The order reads, inter alia.

“… the  authority is mandated to have the matter heard de novo within 6 months from the date of receipt of this judgment failing which the appellant would be deemed to have been reinstated with full pay and benefits…”

(underlining added)

In the circumstances, the dirty hands contention cannot be upheld.

As already indicated, the main thrust of the applicant’s submissions was to show that there was bias on the part of the  respondent’s Disciplinary Committee and Disciplinary Authority.

In Dominic Mubaiwa v Zimbabwe Mining Development Corporation LC/H/10/14, HOVE J stated that:

“The law provides that in cases where bias and malice are alleged you need not prove actual bias, the test is whether the person challenged has associated himself with one of the two opposing views that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.

See the case of City & Suburban Transport (Pvt) Ltd v  Local Road Transportation, Johannesburg 1932 WLD 100.

In order to establish bias, the onus rests on the person alleging bias to show that;

The bias was clearly or actually displayed.

That in the circumstances there was a real possibility of bias.”

In casu, taking into consideration the totality of applicant’s submissions, I am of the

view that bias has not been established.

In the circumstances, the application for review cannot succeed.

It has been pointed out that what was before the court was an application for review and an appeal.  This matter has disposed of the application for review.  The merits of the matter would have to be disposed of after the appeal hearing.

It is accordingly ordered that;

The application for review be and is hereby dismissed.

The Registrar shall set down the appeal filed under Case No LC/H/320/15 at the next available date.

Each part bears its own costs.

Muchineripi & Associates, applicant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners