Peter Claver Madzimure v Minister of Primary and Secondary Education N.O. and Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/05/2021
HARARE, 27 JULY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/05/2021

HARARE, 27 JULY 2020			                        CASE NO. LC/H/34/20

AND 19 FEBRUARY 2021

In the matter between:-

PETER CLAVER MADZIMURE                                          Appellant

And

MINISTER OF PRIMARY AND        				1st Respondent SECONDARY EDUCATION N.0.

And

PUBLIC SERVICE COMMISSION                                  	2nd Respondent

Before Honourable B.T. Chivizhe, Judge

For Appellant 	 	Mrs C. Mahlangu

For Respondents	 	Ms M. Makuvire (Civil Division of the AG’s Office)

CHIVIZHE, J:

This is an appeal against the decision of the Respondent Disciplinary Authority which decision resulted in the dismissal of Appellant from employment with effect from after duty on the 6th of December, 2019. The appeal is opposed.

The factual circumstances of this matter are largely common cause. The Appellant was employed by the Respondent as a teacher. He was at the material time stationed at Museredzi Secondary School in Muzarabani District, Mashonaland Central. On the 10th of May 2019 the Appellant was suspended and a charge of misconduct in terms of Paragraph 4, 7 and 9 of the First schedule (Section 2) to the Public Service Regulations 2000 as amended was levelled against him. The allegations surrounding the charge were that the Appellant, had, on the 27th of April 2019 at around 21.00hrs been caught naked sleeping with a 16 year old form three student from the same school, one, Mercy Diza. The allegation was that this incident took place in Mushore Village at Mercy Diza’s home in her bedroom.

Following an investigation by a team and a report produced on the 28th of May, 2019 recommending disciplinary measures, the Appellant was arraigned for a disciplinary hearing on the 12th of September 2019. The Appellant appeared in his personal capacity. He pleaded not guilty to the charge. The Respondent then led evidence from witnesses who included Muparamhadzi Henry (Head-Machaya School), Mildred Mupemheza , Mrs Chiremba (co-teacher), Nelson (a student), Mr Chadiwa (the Headteacher), Itai Chiwasa (Complainant’s mother). Upon consideration of the evidence led before it the Disciplinary Committee recommended that the Appellant be given the benefit of doubt. The Disciplinary Authority, acting on the basis of powers granted him under Section 46(1)(b) of the Public Service Regulations, 2000 however found the Appellant guilty of the act of misconduct. The Disciplinary Authority consequently imposed a penalty of Discharge from service with effect from after duty on the 6th December, 2019.

THE APPEAL

The Appellant was aggrieved by the determination and penalty imposed by the Disciplinary Authority. He then approached this court with an appeal based on the grounds as outlined below;

The Disciplinary Authority erred and seriously misdirected itself in finding the Appellant guilty on a misconduct of improper association with minors which charge could not be sustained from the evidence adduced during the Disciplinary Hearing.

The Disciplinary Authority erred and seriously misdirected itself at law in,                  without any justification, altering findings and recommendations made by the Disciplinary Committee.

The Disciplinary Authority erred and seriously misdirected itself on the facts and law in making findings which could not be supported by evidence in the record.

The Disciplinary Authority erred and seriously misdirected itself at law and on the facts in ordering the dismissal or discharge of the Appellant without allowing the Appellant a chance to make submissions in mitigation.

In relief the Appellant prays for the determination to be set aside and for reinstatement to his original position without any loss of salary and benefits with effect from the date of unlawful discharge from service. Should reinstatement be no longer tenable, the Appellant prays in the alternative for damages for loss of employment, the quantum of which should be agreed to by the parties, failing which this court can then determine the same.

The appeal is opposed by the Respondents. In their Notice of Response, the Respondents, through the Affidavit of Tumisang Thabela, the Permanent Secretary in the Ministry of Primary and Secondary Education, aver that the Appellant was properly convicted on the charge. There was evidence in the record of proceedings that he had paid the complainant’s mother two beasts; he had also signed minutes indicating that he had been caught naked with the complainant who is a minor; he had admitted the same to the Head Mr Chadiwa who was summoned by the mother on the night in question around 11pm. The Respondents urge the court to disregard as suspicious the Appellant and Complainant’s mother oral evidence led during the hearing before the Disciplinary Committee. The Respondents also dispute that the Appellant was denied an opportunity to make submissions in mitigation. The submission is made that the Appellant was granted the opportunity but he spurned it. The Respondent’s prayer on this basis is that the appeal ought to be dismissed with costs. The court should in its determination hold that Appellant was properly found guilty of the charge of improper association with a minor child.

I turn to address the grounds of appeal seriatim.

WHETHER THERE WAS SUFFICIENT EVIDENCE TO WARRANT CONVICTION ON THE CHARGE.

The Appellant submission on this point is that the Disciplinary Authority erred and misdirected itself in finding him guilty on a charge of improper association with a minor where the evidence led did not support the charge. He further submits that the Disciplinary Authority disregarded the evidence adduced by the Complainant where she alleged that there was undue pressure exerted on her when she wrote her initial report on 27th of April 2019. The Disciplinary Committee is said to have neglected on its duty to also establish whether undue pressure had indeed been exerted on Complainant’s mother- Itai Chiwasa in her written report.

Mrs Mahlangu, for the Appellant, in her oral submissions emphasized that the Appellant had disputed from the beginning that he had been found sleeping with the complainant. The Complainant and her mother both corroborated Appellant’s submission before the Disciplinary Committee that he was found outside the house talking to Complainant. Mrs Mahlangu also stressed that Appellant explained before the Disciplinary Committee why he had paid two beasts of cattle to Complainant’s mother. He explained that the beasts were handed to her in payment of a previous amount owing for use of her field. This position had been corroborated by Complainant’s mother in the hearing. Mrs Mahlangu further submitted that against this background the Disciplinary Committee was correct in their findings and recommendation. The Disciplinary Authority therefore erred and misdirected itself in altering the findings of the Disciplinary Committee where no evidence had been led to justify the conviction on the charge.

It is a trite position of the law that where evidence does not support the charge preferred by the employer the accused employee is entitled  to a acquittal it not being the responsibility of the Disciplinary Authority or court to formulate charges – see Zimasco (Pvt) Ltd vs Chizeman 2007(2)ZLR 314(5)

The charge that was levelled against the Appellant was of improper association with a minor child. The allegations were that the Appellant had been found on the 27th April, 2019 at 21.00hrs naked sleeping with a 26 year old Mercy Diza from Museredzi Secondary School.

The Disciplinary Committee in this case had before them written evidence in the form of written statements by the Appellant, the Complainant Mercy Diza and her mother Itai Chiwasa . They also had the report compiled by the investigation team which had been set up by the Head. They also heard oral evidence from the various witnesses as indicated above. In their final observation the Disciplinary Committee noted that the Appellant denied the allegation that he was found in bed with Mercy. They also noted that Mercy and her mother before the Disciplinary Committee had altered their previous written statements that Appellant was caught sleeping with Mercy; the Appellant had explained that he was a friend of the complainant’s family and that he owed the complainant’s mother the bags of fertilizer. The Appellant had also admitted to paying 2 beasts to Complainant’s mother. It is on the basis of this evidence presented before them the Disciplinary Committee recommended that the Appellant be given the benefit of doubt. Although they did not specifically state so in their concluding remarks the Disciplinary Committee had established that the Respondent had led insufficient evidence to find a conviction on the charge. They consequently gave the Appellant the benefit of doubt.

The record clearly shows that complainant Mercy Diza gave contradicting, inconsistent statements between her written and oral submissions before the Disciplinary Committee. Whereas in her written statement she had admitted to being found naked in bed with Appellant before the Disciplinary Committee on page 6 of minutes, she made an about turn and denied sleeping with Appellant. She instead stated that she had been found talking to Appellant at the door. This statement was also confirmed by her mother. She stated as follows;

“Committee: 	we have a report which is saying that your mother caught you in bed with Mr Madzimure in your bedroom on the 27th of April 2019, what is your comment?

Mercy : 	Nothing like that happened, my mother caught me talking to Sir on that day. I was at the door and sir was outside. My Mother shouted and this attracted the whole village to come and see.”

When asked as to why there was deviation from her written report she alleged that she was told to write that by the Head, Mr Chadiwa. She claimed that the head ignored her own report in which she had written the correct version of events.

The next key witness was her mother. She just as her daughter deviated from her initial written report. Whereas in the written report she had stated that she found Appellant naked in bed with Mercy in her oral testimony she now contradicted that statement. She was now saying that she found Appellant talking to Mercy outside the house. She also mentioned for the first time the bad blood between Appellant family and her family emanating from Appellant failure to pay rentals for her field he had used prior to. She alleged that she had written the first statement in order to fix him. In regards the two beasts she received from Appellant she indicated that it was Appellant payment towards usage of her fields. She denied that it could have been payment for Appellant misdemeanour in being found in bed with her daughter. She stated as follows on page 11 of the minutes;

“Committee:	Can you read your letter dated 28 April 2018 (Mrs Chiwasa was given to read). Are the one who wrote it?

Chiwasa: 	Yes.

Committee: 	So why did you write that?

Chiwasa: 	I wanted to fix him because there is bad blood between us. I had an outstanding issue with Mr. Madzimure of using my field for quite a long time without paying me with fertilizers. So in order to fix him I had to write something with value and gravity.

Committee: 	So which story should we take?

Chiwasa: 	The one I am saying, the one written in the report is false.

Committee: 	When you come back what was the time?

Chiwasa: 	Around 10pm.

Committee: 	Where was Mr Madzimure standing?

Chiwasa: 	At the door.

Committee: 	Where was Mercy?

Chiwasa: 	They were standing together.

Committee: 	Whose house were they standing?

Chiwasa: 	My house.

Committee: 	When you saw that someone was at your house what did you do?

Chiwasa: 	I screamed to draw the attention of my neighbours.

Committee: 	You charged him 2 cows for what?

Chiwasa: 	I wanted him to pay the 2 beasts equivalent for using my fields for too long without giving me my fertilizers.

Committee: 	Were the cows a penalty for seeing Mr Madzimure talking to your daughter?

Chiwasa: 	No, but that I thought of using he chance to fix him especially for not paying the use of my fields and other issues of not in good relations with the community.

Committee: 	Were they standing together?

Chiwasa: 	The other was standing at the door and the other outside.”

It is also clear that on the basis of unclear and unsatisfactory evidence of Mercy the Disciplinary Committee was correct in finding that the evidence did not warrant any findings of guilty. There were blatant contradictions and inconsistencies in her evidence as the key witness. The evidence of her mother was also contradictory in a material aspect. She also admitted to fabricating a case against the Appellant. The Disciplinary Committee, when faced with allegations of undue influence brought to bear on the key witness by the Head, on its part failed to pursue and establish whether indeed the key witness had written the statement under duress.

It is clear that in the light of the contradictory inconsistent evidence of the two witnesses i.e. Mercy Diza and her mother the Disciplinary Committee were only left with the evidence of the other witnesses which evidence largely amounted to hearsay evidence in relation to the material issue as to whether or not the Appellant was found in bed with Mercy. Having weighted the evidence both written and oral evidence the Disciplinary Committee was unable to conclude that the Appellant, on a balance of probabilities, did commit the act of misconduct levelled against him. Their finding/recommendation was, in the court’s view, not unreasonable.

WHETHER THE DISCIPLINARY AUTHORITY ERRED AND MISDIRECTED ITSELF IN DISREGARDING THE FINDINGS AND RECOMMENDATION BY DISCIPLINARY COMMITTEE

The second and third grounds of appeal are addressed under this head. The Appellant has under this head launched a two –pronged attack on the findings by the Disciplinary Authority. He contends on one hand that the Disciplinary Authority, erred in the exercise of its powers, by finding Appellant guilty on the act of misconduct, which finding is contrary to the findings/recommendation by the Disciplinary Committee in circumstances where justifications is made for the alteration of the findings. The second submission is that the Disciplinary Authority in any event erred and misdirected itself in making those findings in the absence of evidence in the record supporting the conviction.

The Appellant’s first submission is that the Disciplinary Authority erred and misdirected itself in altering the findings| recommendations by the Disciplinary Committee in the absence of justification for that alteration. The powers of the Disciplinary Authority are laid out in section 46(3) and 50(1) of the Public Service Regulations, Statutory Instrument I of 2000. The section reads in part as follows;

“46. Determination of allegation of misconduct.

(3) Where the disciplinary authority determines that a member is guilty of misconduct, the disciplinary authority shall—

a) proceed to determine the penalty to be imposed upon the member; and

(b) notify the member and, where the disciplinary authority is not the Commission—

(i) the head of Ministry, in the case where the disciplinary authority is a head of department; or

(ii) the Commission, in the case where the disciplinary authority is a head of Ministry; of its determination and the penalty imposed upon the member; and

(c) take such consequential measures as may be necessary in the circumstances.

50. Imposition of penalty by disciplinary authority

(1) Where a disciplinary authority determines that a member is guilty of misconduct the disciplinary authority may impose any one or more of the following penalties—

(a) discharge the member from the Public Service;

(b) call upon the member to resign with effect from a specified date, failing which the member shall be deemed to have been discharged as from that date;

(c) …”

It is clear on the basis of section 46(3) and 50(1) the Disciplinary Authority is given powers to hand down its determination in the disciplinary matter and impose an appropriate penalty. The imposition of the penalty is solely discretionary on the Disciplinary Authority.

The record of proceedings indicates on page 10 that Disciplinary Authority found the Appellant guilty of the charge and more specifically the allegations that he had been found naked sleeping with the minor child, Mercy Diza. In justification of his finding the Disciplinary Authority stated as follows;

“The Disciplinary Authority noted that it was not in dispute that you met Mercy Diza on 27 April 2019 at Mercy’s homestead. The Disciplinary Authority also noted that it was not in dispute that Mercy’s mother screamed when she saw you and Mercy together during this odd time. It was further noted that it was not in dispute that you paid 2 beasts to Mercy’s mother. However, you claimed that you paid the 2 beasts because you did not want the case to spread into the community. Mr Chadiwa testified that you paid a fine of 2 beasts for being caught naked with Mercy as being evidenced by the minutes of the meeting which you signed. The Disciplinary Authority noted that Mercy’s mother changed her statement in the hearing because she had received 2 beasts you offered.”

The Disciplinary Authority was sitting as the determining body. He had to arrive at a determination on the basis of the record of proceedings before the Disciplinary Committee. He had to analyse the evidence presented and the arguments presented by the parties. He had to also consider the findings of fact made by the Disciplinary Committee and the probabilities. Whilst the Disciplinary Authority did attempt to justify his findings there were however glaring contradictions| inconsistencies| gaps in the evidence led before the Disciplinary Committee. There was the aspect of the contradictory evidence of the key witness-Mercy Diza. Her written statement was contradictory and materially different from her oral evidence during the hearing. In her written statement she had admitted to being caught in bed with Appellant. During the hearing she made an about turn and said they were found outside the hut by her mother. The same witness had also alleged that duress had been exerted upon her by the Head Mr Chadiwa. The Disciplinary Committee as well as the Disciplinary Authority clearly did not address this crucial point.  The Disciplinary Authority appeared to have accepted wholly the evidence of the Head Mr Chadiwa without indicating why he found that witness to be more credible than Mercy Diza and her mother. The record however clearly shows the headmaster appeared to prevaricate from one point to the other. On page 5 of the minutes he indicated that when he arrived at the house he questioned the Appellant whether he had been found naked with Mercy and Appellant had confirmed that it was true that he was found talking to her daughter. Upon being quizzed by the committee as to what Appellant had confirmed as ‘true’ the witness stated that he was caught with Mercy Diza. It is not clear from this statement what Appellant was caught doing, was it ‘talking’ or ‘sleeping naked in bed’. The Disciplinary Committee did not pursue the issue to its logical conclusion. The Disciplinary Authority could not have reached his conclusion based on the inconclusive report by the Disciplinary Committee.

The Disciplinary Authority also reached the conclusion that the 2 beasts had been paid to complainant’s mother on the basis of Appellant’s admission of the charge as reflected in the minutes of the meeting which he signed before the Head. He however did not clearly indicate why the complainant’s mother’s version of events were considered less probable.

The Disciplinary Authority’s brief was to determine on the basis on the evidence whether or not a case had been proved against the Appellant. It is the position at law that he who alleges must prove such an allegation.   The Respondent, in casu, failed to prove on the basis of the evidence presented that the Appellant had committed the act of misconduct alleged of having being found naked in bed with the minor child. The Disciplinary Authority sitting as the determining body failed to outline in his determination on which evidence from the record he relied upon to reach his findings.

WHETHER THE APPELLANT WAS GRANTED AN OPPORTUNITY TO MAKE SUBMISSIONS IN MITIGATION.

The Appellant in his last ground of appeal submits that the Disciplinary Authority erred and misdirected himself in imposing a penalty of discharge from service without allowing the Appellant an opportunity to make submissions in mitigation. The Appellant further submits that the in Section 69 guarantees every person the right to a fair hearing which encompasses the right to mitigate before penalty is imposed. Where this right is denied it renders the termination unlawful and entitles one to be reinstated as a primary remedy. It is Appellant contention that having been denied the opportunity to mitigate in this case his discharge was both procedurally and substantively fair. The Respondent submission is that the record of proceedings clearly shows mitigation factors were requested from the Appellant. He however had indicated that he had none. On this basis the Respondent submits that the ground of appeal ought to fail.

It is common cause the Public Service Regulations, 2000 as amended do not make provision for mitigatory factors to be submitted upon a guilty conviction being pronounced. Even though there are no clear provisions in the Public Service Regulations it is the position under common law that an employee has to be granted an opportunity to mitigate penalty upon conviction on a charge of misconduct.

The record of proceedings on page 24 shows that the Appellant was requested by the Disciplinary Committee to mitigate. He refused to mitigate. He stated as follows;

“Member: 	I don’t have anything to say at the moment but i will see when the outcome comes.”

It was certainly within the Appellant’s rights to refuse to mitigate in the circumstances of this case.  The duty of the Disciplinary Committee as per the Regulations only is to make recommendations.  The Disciplinary Committee had not arrived at a conviction as at that stage. The Disciplinary Authority, on its part, after finding Appellant guilty did not call for mitigatory factors from the Appellant. By so doing the Disciplinary Authority did commit an irregularity which ordinarily would result in the setting aside of the penalty and remittal of the matter to the same body to reconsider the aspect of the penalty upon consideration of mitigatory/aggravatory factors, presented before it. In this case however the court having come to a conclusion that the Disciplinary Authority erred and misdirected itself in substituting the findings| recommendations by the Disciplinary Committee in the absence of evidence to support the conviction and also in the absence of proper reasons for altering the findings there will be no need for a remittal to the Disciplinary Authority.

In the result the court makes the following order;

The appeal be and is hereby allowed with costs.

The decision of the Respondents Disciplinary Authority handed down on 29 August 2019 be and is hereby set aside.

The appellant shall be reinstated to his original position without any loss of salary or benefits with effect from the date of unlawful dismissal. In the event that reinstatement is no longer tenable the Respondent shall pay the Appellant such damages for loss of employment as agreed to by the parties and if the parties fail to agree the damages shall be determined by this court.

Civil Division of the Attorney General’s Office, respondents’ legal practitioners