Naume Makombe v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/653/2013
HARARE, 31 OCTOBER 2013
CASE NO. LC/H/653/2013
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/653/2013

HARARE,  31 OCTOBER 2013	    		     	     CASE NO. LC/H/781/12

AND 22 NOVEMBER 2013

In the matter between:-

NAUME MAKOMBE					Appellant

And

HEALTH SERVICE BOARD				Respondents

Before The Honourable P. Muzofa, Judge

For Appellant 		-	In person

For Respondent		-	Mr M. Bamu

MUZOFA J:

This is an appeal against the Respondent’s decision to dismiss the Appellant.

The Appellant was a nurse aide at Murehwa District Hospital.  On the 5th of August 2011 she travelled to her rural home in Karoi.  On the way there was a roadblock manned by the Zimbabwe Republic Police.  Her bag was searched and she was found in possession of drugs and surgicals.  The police suspected that the property had been stolen and they detained the Appellant.  Subsequently the Appellant signed an admission of guilt form and paid a fine for theft of the said items from Murehwa District Hospital.

Pursuant to this event the Respondent charged the Appellant under the Health Service Regulations 2006.  She was found liable and dismissed from employment.  Appellant then approached this court on appeal.

The Appellant was a self actor.  The grounds of appeal were not clearly articulated.  It seems from the document attached to the notice of appeal the Appellant challenges the Respondent’s decision on the following basis:

That the Respondent attached too much weight to the admission of guilt,

she admitted to the police to avoid inconvenience rather than that she stole.

That there was nothing missing from Murehwa District Hospital Pharmacy.

That she was given the items by a relative.

I will deal with the grounds of appeal in turn.

The Appellant submitted that when she was arrested by the Police she was harassed and eventually admitted that she stole from Murehwa District Hospital.  According to her the truth of the matter is that she did not steal the drugs and surgicals.  She blamed the Respondent for attaching too much weight to the admission of guilt which was made for convenience.   On behalf of the Respondent it was submitted that the admission of guilt by the Appellant was enough proof that Appellant had stolen the said items. Generally criminal proceedings and civil proceedings are distinct from each other.

The court is alive to the provisions of section 31 (3)(a) of the Civil Evidence Act [Chapter 8:01] which provides,

“Where it is proved in any civil proceedings that a person has been convicted of a criminal offence, it shall be presumed unless the contrary is shown

that he did all acts necessary to constitute the offence”

This section provides a presumption once there is proof that one has been convicted of a criminal offence.  However it has a proviso that “unless the contrary is shown” to my mind the Appellant’s explanation is a basis on which the contrary can be shown.  This is one case I believe the presumption in the said section can not apply.

I will now deal with the second ground of appeal.  That there was no report of any missing items from the Hospital Pharmacy.  The Respondent in its Heads of Argument conceded that from the Hospital Pharmacy nothing was missing.  Respondent alleged that the items were stolen from the wards.   The operating system was that nurses request for drugs and any medical supplies they needed for use in the wards from the pharmacy.  When the items were issued they were kept in an unlocked locker in the ward.  According to Respondent Appellant could have stolen the items from the ward locker.  Respondent could not specifically state what was missing from the ward. The Appellant’s version was that she was given the drugs by her nephew one Maxern.  From the record of proceedings it seems the Respondent attempted to get in touch with Maxern but it was indicated he was not comfortable to discuss Appellant’s issue.  Maxern did not give evidence before the hearing committee.

When the matter came before this court.  Appellant requested the court to allow her to call this witness.  The court granted this request and proceeded in terms of R28 (6)(b-e) of this Court’s rules.  Respondent did not object to this.  The court granted this request after Appellant showed that she was not given an opportunity to call the witness.  The notice to attend a hearing indicated that the hearing was to be held on the 16th of December 2011 yet it was held on 15 December 2011.  She was misled by Respondent.  The witness gave evidence that she gave all the allegedly stolen items to the Appellant.  He produced a document with a list of the items and their batch numbers.  The document was not on letter head.  He was cross examined by the Respondent and it appeared there were issues that Respondent’s  representative was unaware of.  Respondent claimed that the batch numbers for the soft gloves, neo gloves, 3 x 500 ml betedine neo ject and needles matched the batch numbers of items at the Hospital.  The connecting evidence was therefore the batch numbers.  The Respondent’s representative did not know where Respondent sourced its medical supplies.  So it was unclear whether the goods that Appellant was in possession of came from the Hospital or from Hunters Collection.  The Respondent’s representative conceded that it was unclear what the real position is and would prefer the matter to be reconsidered after considering the evidence from the witness.

The concession on behalf of the Respondent is important.  The court could not ably make a decision considering that Respondent also needed to verify the authenticity of the document produced by the Appellant’s witness.  I believe the justice of this matter can be met by remitting this case back to Respondent to consider the new evidence.  This is particularly so because Respondent does not know where the medical supplies were stolen from and there’s no accountability at the wards where it suspects the items were stolen from.

Accordingly the following order is made.

The appeal be and is hereby upheld the matter is referred back to the Respondent for a trial de novo.

The Appellant remains dismissed until the matter is finalized by the Respondent.

Each party to bear its own costs.