Rangarirayi Jejenge v Minister of Education (Public Service Commission)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/44/2013
HELD AT HARARE ON FEBRUARY 13, 2013
CASE NO.LC/H/103/2012
In the matter between:
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO.LC/H/44/2013

HELD AT HARARE ON FEBRUARY 13, 2013   	CASE NO.LC/H/103/2012

In the matter between:

RANGARIRAYI JEJENGE 				Appellant

And

MINISTER OF EDUCATION			  	Respondent

(PUBLIC SERVICE COMMISSION)

Before The Honourable E. Makamure, President

For Appellant : Mr F. Rudolph (Legal Practitioner)

For Respondent: Ms R. Hove (Legal Practitioner)

MAKAMURE E,

The appellant was employed by the respondent as a school teacher.  He was dismissed from employment following disciplinary proceedings on charges of improper association with a 14 year old minor who was also one of his students.  In order to protect the privacy of the minor, the minor will be referred to as ‘X’.

The appellant appealed to this Court on the following grounds:

“1.	The disciplinary Tribunal failed to comply with the Regulations regarding time frames within which the hearing ought to have been conducted thereby causing prejudice to the Appellant.

2.	The Disciplinary Tribunal erred and misdirected itself in finding that the appellant had sexually molested a minor namely ‘X’ who was a student at Mavuradonha Secondary School.

3.	The Disciplinary Tribunal erred and misdirected itself in finding that the appellant had improperly associated with a minor as alleged or at all.

4.	The Disciplinary Tribunal erred and misdirected itself in the penalty imposed namely discharge from service.

5.	The Disciplinary Tribunal erred and misdirected itself in that it did not consider mitigatory factors.”

The allegations against the appellant are contained in a minute to him from his employer in a minute dated 23 November 2010 which reads as follows in part:

“Accordingly, you Rangarirayi Jejenge, a member in the Public Service, are charged in terms of Section 44(2)(a) as read with paragraph 4, 6, 7 and 24 of the First Schedule (section 2) of the Public Service Regulations amended by Public Service (Amendments) Regulations 2001 (No. 1).

Improper association with a minor ‘X’ aged 14 years and is in form one.  Between September and November 2010 you proceeded to sexually molest her on a number of occasions in your departmental office.

On 12 November in the morning you called ‘X’ into your office under the pretext that she was to help in the recording of mathematics records.  You then proceeded to touch her breasts and private parts.

In the afternoon of the same day you called ‘X’ from the bursar’s office to your office where again you proceeded to sexually molest her.”

A hearing was conducted.  Evidence was led from the ‘X’, her friend and Mrs Mpofu (who is a teacher and Senior Lady at the school) and the school Head.

There are also reports which were written by the minor girl child and some members of the teaching staff.

The evidence of the complainant is that the appellant used to call her to his office.  He would then fondle her breasts, caress her and kiss her.  He once exposed his private parts to her.  She told her friend about these molestations. The friend corroborated all the material respects of the complainant’s evidence.  Apart from telling her friend, she also told the Senior Lady and the Senior Teacher at the school. Their evidence also materially corroborated the child’s story.  The child further stated that the appellant was her teacher and as such, she could not refuse going to his office wherever he called her.

The appellant called the evidence of a student Brilliant Nyamayaro (Brilliant).  Brilliant’s evidence actually discredited the appellant’s case in that while both the girl child in question and the appellant agreed that there was an incident in which he got or bought some freezits, Brilliant could not recall any such incident.  The evidence against the appellant before the earlier tribunal was overwhelming.

The Tribunal found as a fact that the appellant had sexually molested a minor girl child.  That is improper association.  What this means is that there is no merit in the 2nd and 3rd grounds of appeal.  In the first ground of appeal the appellant was aggrieved that the matter was not completed within the time frames stipulated by the applicable statute.  Indeed this was so and it was raised during the course of the hearing.  The explanation for the delay was that the respondent was facing a lot of challenges in resources and that those challenges caused the delays.  Obviously, time frames set must always be adhered to as this may cause prejudice, particularly to the employee.  However, the Supreme Court has ruled that a person must escape liability because he or she is innocent and not because there has been a procedural irregularity.  (See Air Zimbabe (Private) Limited v (1) Chiku Mnensa, (2) Mavis Maweye SC 89/04).  Further even if the procedural irregularity were cured, in the present matter, that would not in my view clear the guilt of the appellant (See Tendai Maswera v Standard Chartered Bank SC 80/04).  It is also important to note that the respondent did not ignore the fact that it had failed to keep the requisite time frames.  It explained its constraints.  This is not to condone the delay but to acknowledge that there was an explanation for the delay which explanation could have been reasonable under the circumstances.

In the 4th ground of appeal, the issue of sentence is raised.  It was held in the case of Circle Cement v Chipo Nyawasha SC 60/03 that once an employer takes a serious view of an offence and determines that dismissal is the appropriate penalty, an appeal court should be slow to interfere with that discretion.  The appellant was also aggrieved saying that the mitigatory features were not considered.  The presence of mitigatory features does not necessarily reduce the guilt of the appellant (See Zimbabwe Alloys Limited v Muchochonyi SC 7/06).  The mitigatory features were obviously present but they did not clear the guilt of the appellant.  Appellant in his capacity as a teacher seriously abused his position.  Society is generally concerned about child sexual abuse and efforts are being made to reduce or eliminate it altogether.  In the midst of all these efforts, the appellant, a person who stands as guardian to minor children, took it upon himself to perpetuate that which society is vigorously fighting against.  This is as unfortunate as it is tragic.  The mere fact that this happened makes it unfortunate.  However, it is tragic that a child has been molested by a person who stands in the position of a parent.  Article 16 of the United Nations Convention on the Rights of the Child [CRC] provides as follows:

“1.	No child shall be subjected to arbitrary or

unlawful interference with his or her privacy, family home nor to unlawful attacks on his or her honour and reputation.

2.	The child has the right to the protection of the law against such interference or attacks.”

The same Convention in Article 28 makes it a requirement to recognize the child’s right to education and goes on to provide in Article 28(2) as follows:

“2.	State Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.”

Sexually molesting a child is a clear violation of the child’s privacy and human dignity.  It is arbitrary and an unlawful interference with her honour and dignity.  It is not in the slightest degree related to instilling discipline in a child.  It actually destroys the dignity of the child.  This must be condemned in the strongest possible terms.

Article 34 of the same Convention provides for the protection of a child against sexual exploitation and sexual abuse.  The appellant herein used his privileged position to exploit and abuse a minor child.  In my view strong mitigatory features could not and cannot outweigh the high degree of moral blameworthiness which the appellant exhibited with impunity.

The Children’s Act Chapter 5:06 defines a guardian as “the legal guardian and includes any person who has the custody, charge or care of the child or young person either permanently or temporarily.”

It goes without saying that a school teacher exercises temporary custody of a child while that child is at school.  When parents release their children into the hands of school authorities, they do so in utmost good faith.  They expect the same good faith from teachers who are temporary custodians of their children.  By molesting a child therefore, the appellant breached that good faith and trust reposed in him by parents.  I am sure that the School Head and other teachers at the school expected the appellant to conduct himself in an honourable manner which enhances the relationship between parents and the school.  Unfortunately the appellant chose to do the complete opposite.  As I stated earlier on, this is unfortunate.

The appellant would want this Court to interfere with the findings of the lower tribunal.  However, an appeal Court can only interfere where it has been shown that the employer’s discretion was improperly exercised (See Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012).  I am not able to say that in the present case the employer’s discretion was improperly exercised.

In view of the foregoing, I find that there is no merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Scanlen and Holderness, Legal Practitioners for the Appellant.

Civil Division of The Attorney-General’s Office, Legal Practitioner for the Respondent.