Raymond Dzingai v Minister of Justice, Legal and Parliamentary Affairs

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/582/2016
HARARE, 19 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/582/2016

HARARE, 19 JULY 2016  	  		         	 CASE NO. LC/H/185/16

AND 23 SEPTEMBER 2016

In the matter between:-

RAYMOND DZINGAI						Appellant

And

MINISTER OF JUSTICE, LEGAL AND				Respondent

PARLIAMENTARY AFFAIRS

Before Honourable P. Muzofa, Judge

For Appellant		T. Nyamucherera (Legal Parctitioner)

For Respondent		Ms Chihuri (Civil Division)

MUZOFA, J:

This is an appeal from a decision of the respondent, to dismiss the appellant from employment.

The appellant was employed as an accounts clerk in the Ministry of Justice, Legal and Parliamentary Affairs.  He performed his duties at the Deeds Registry.  His duties included calculating stamp duty receipting the monies received and filing documents for registration of title deeds.

Following allegations of fraud in that appellant under receipted public funds received he was charged in terms of the Public Service Regulations, 2000.  Five charges were initially preferred against the appellant.

He was found liable and dismissed from employment on 10 March 2014.  He appealed against the decision to this Court.  According to the appellant, which point was not disputed by the respondent, the Court ordered that the disciplinary proceedings be heard de novo in that there was no proper record of proceedings before the court.

The respondent complied and the matter was heard again in February 2016.  The disciplinary authority found the appellant liable on three charges and a penalty of dismissal was effected.

The appellant then approached this court on appeal.  It is not in dispute that the appellant filed the notice of appeal in the absence of a full record of the disciplinary proceedings. On the date of hearing of the matter a point was taken for the appellant that the record of the disciplinary proceedings was incomplete and was not a true reflection of what transpired.  It was pointed out that some witness evidence was not recorded.

The court postponed the matter sine die for the respondent to file a complete record of proceedings.

It seems the appellant failed to secure a proper transcript of the proceedings.  The matter was set down with the incomplete record.

When parties appeared before the court, respondent applied for the matter to be referred back to respondent for a trial de novo citing that ‘technology had failed respondent’. In short respondent had failed to make a complete transcription of the disciplinary proceedings.

The application was opposed.  The primary reason being that respondent was given an opportunity to re-hear the matter and it failed to produce a proper record.  In essence granting the application would mean a third disciplinary hearing on the same charges.  This would be prejudicial to the appellant who was suspended in November 2013.

I dismissed the application for a trial de novo and indicated that the reasons shall be incorporated in this judgment.  These are they:

It is a settled principle that there should be finality to litigation see Ndebele v Ncube 1992 (1) ZLR 288 (SC) at 290C.

In casu the appellant was suspended in 2013.  To date 2016 his case remains hanging by reason of the respondent.  The respondent as the employer is expected to keep a proper record of the disciplinary proceedings.

The respondent has on two occasions failed to produce an intelligible record of the disciplinary proceedings.

It is an acceptable point that an appeal is based on the record.  It undoubtedly follows that a proper record be furnished to the court.

Respondent has already been given an opportunity to correct its mistakes but has failed to utilise it.  Granting the application would certainly occasion an injustice on the appellant.

As indicated there should be an end to the trials de novo and the matter should be finalised.  The court will therefore rely on the record of proceedings furnished by respondent albeit with its glaring gaps.  The court certainly finds itself in a difficulty but allowing a trial de novo would be unfair on the appellant.

In terms of the Notice of appeal Form LC3 the following documents are to be attached to the notice if available to the appellant.

the record of any charge against or allegation of misconduct on the part of the appellant that was served on the appellant if any,

the minutes or record of any proceedings or hearing undertaken to inquire into any charge against or allegation of misconduct on the part of the appellant.

a minute or record of any decision of the respondent was filed.

For some unknown reasons the Registrar set down the matter in the absence of the documents as set out.  The court had to request for the record of proceedings to be furnished by the respondent, which it did.

Even the documents setting out the charges were not filed of record.  The record was just a skeletal reflection of what transpired at the workplace.  This is undesirable, the court has to be furnished with all relevant documents for proper determinations to be made on the merits.

That as it maybe, having set out the background which is just skeletal the court has to make use of what is before it.

The appellant set out four grounds of appeal in the notice of appeal which to my mind raise one issue that there was no evidence to prove the charges preferred.  Before this court the appellant also raised issue that, in view of the inadequate record of proceedings the disciplinary authority erred in concluding as it did that the appellant was guilty and dismissing him from employment.

I will address the issues in turn.

It was submitted for the appellant that the standard of proof in such cases is on a balance of probabilities.

The evidence before the disciplinary committee fell short of the said standard in the following aspects.  Firstly that there was a thorough examination of documents by examiners before a deed of transfer is registered, the under receipting could have been detected.

Secondly the receipts in question has senseless amounts in words for instance ‘one thousand and thirty six zero dollars’ any examiner could have queried that.

Thirdly that although the appellant indeed used the receipt books, the evidence showed that the receipts were tampered with after he had completed his part. Someone could have tampered with the receipts.

It was also submitted that the documents used by the appellant to calculate stamp duty were not produced to prove that his calculations were incorrect.

For the respondent it was submitted that there was adequate evidence to found a verdict of guilt and a penalty of dismissal.  According to respondent appellant conceded that he was the custodian and user of the receipt book from which the three fraudulent transactions emanated.

There was evidence that on 2 March 2011 he under receipted stamp duty for a deed of transfer 1056/2011.  The original receipt No. 660919 HH had an amount of $1 360 and the duplicate copy had an amount of $136.

On 16 March 2011 it was alleged that in respect of deed of transfer 868/2011 on receipt number 6580552 HH he receipted $1 870 on the original receipt and $187 on the duplicate copy.

On 16 March 2011 again it was alleged that for deed of transfer 124/2011 he receipted receipt number 6664721 HH. The original receipt reflected $4 770 whilst the duplicate copy reflected $477.

These anomalies were unearthed after an audit.  To that extent he prejudiced the respondent a total sum of $7 200.

As correctly stated by the appellant, the standard of proof in such matters is on a balance of probabilities Zesa v Dera 1998 (1) ZLR 500 (S).  Even where the charges are of a criminal nature the standard of proof remains the same.  What is required in my view is to prove the essential elements of such a charge on a balance of probabilities.  It is also a relevant principle in this case that he who alleges must prove the case.

Bearing in mind the said principles I will assess the evidence that was before the disciplinary committee.

As stated before I did not have the benefit of the charge sheet.  I will therefore confine myself to the facts as set out in respondent’s heads of argument filed of record.  I did not hear the appellant challenge that part of the submissions.

The record of proceedings commences with cross-examination of an unidentified witness.  The receipts were not availed to the court.

What is evident from the record is as follows.  Mrs Nygura gave evidence.  She was appellant’s supervisor.  She explained the procedure in the registration of a deed of transfer.

She said a deed of transfer is drafted by a conveyancer. The draft deed of transfer is filed with the accounts section.  Stamp duty is calculated atthis office using the market value or documents filed.

The documents together with the original receipt are referred to the principal examiner.  The principle I examiner distributes the deed of transfers to various examiners.

The examiner on receipt of the files verifies the fees payable and endorse the fees as receipted on the original receipt and then endorse the receipt number and the amount paid on the deed of transfer.  After verifying compliance with applicable legislation and if satisfied the deed of transfer is allocated a number and date of registration.

The information is entered into a database.  The deed of transfer is referred to the registrar.  There are three of them who are principal examiners.  The document is re-examined and if everything is in order the registrar appends his or her signature.

The appellant’s duty as an accounting assistant was to receive documents, calculate the amount payable, receipt the money and retain the receipts, both original and duplicates.  One receipt was attached to the file and the other two remained in the receipt book which remained with the accounting assistant.

She said all receipt books were procured from Printflow and kept by the administration officer.  Each accounting officer was allocated a receipt book and these were security items.

She also said officers had individually allocated stamps and appellant was allocated stamp number 05 for receipting deed documents.

On page 50 of the record, Mrs Nyagura speaks to counts 1, 3 and 4 on which appellant was found liable.  The witness did not give evidence to establish the allegations as set out in the respondent’s heads of argument.

On that page it is unclear who spoke to the issue that a zero was added on the original receipt.

Gwendolyn Zikhali an examiner also gave evidence she set out her duties as an examiner which was primarily to check for compliance with legislation and compute stamp duty just to confirm if the accounts assistant made a proper assessment.

She did not give any direct evidence in respect of counts one, three and four.

She did not know if it was the appellant who authored the original receipts with figures in words that did not make sense.

She also said where a variance is noted examiners do not alter receipts but refer queries.  Another witness was Mr Kaswa from the administration department.  His evidence was that he issued stationery.  He kept a register of security items.  He then was asked about receipt number 490094 which is not part of the counts in issue.

His evidence did not take respondent’s case further in respect of the counts in issue.

The evidence from the three witnesses confirms that the original receipts had a higher figure than the duplicate copies.  The examiners indeed checked the documentation for compliance.  However the file submitted to the examiners had one receipt, the original according to Mrs Nyagura.

That evidence therefore renders appellant’s submission that the thorough process by examiners should have unearthed the anomalies.  The examiners did not have access to the duplicate receipts therefore there is no way they could detect the under receipting.

It was also submitted for the appellant that the original receipt had glaring anomalies.  For instance the amount in figures in one receipt was “one thousand and thirty six zero dollars”.  That was meaningless examiners would not have let that pass without raising a query.  To that extent it was argued that the original receipt could have been tempered after the appellant had receipted the monies.

Appellant did not state at what stage this tempering could have happened.  It was not explained why anyone would temper with the receipt after the money had been receipted.  In my view no benefit would result from that tempering.  The balance of probabilities favour the respondent’s version that the appellant was the author of the original receipt. He was the only person who could benefit from an original receipt with a figure higher than what was reflected on the duplicate receipt.  He was the receiver of the money.

I am not swayed by the intelligible amount in words.  The example highlighted does not take the appellant’s issue very far.  If the amount in figures was $1 360 and the words are ‘one thousand and thirty six zero dollars’ that does not exonerate the appellant.  The amount in words can be easily interpreted to be the amount in figures.  Nothing turns on this argument.

It was not in dispute that the original receipts in the three counts were from a receipt book issued to the appellant.  It was also undisputed that his stamp 05 was used. The coincidence is just too much.

In my view there was evidence on a balance of probabilities that the appellant committed the alleged misconduct.

The second issue is on the appropriateness of the findings in that the authority did not have the requisite document to make a finding.  Section 45 (6) of the Public Service Regulations provides;

“At the conclusion of the hearing or as soon as thereafter as possible, the chairman of the disciplinary committee shall submit to the disciplinary authority –

a notification in writing of its findings and recommendations thereon, including a recommendation as to the penalty to be imposed upon the member where it finds the member guilty of misconduct and

the record of the evidence led at the hearing.”

It was submitted that there was no proper record of proceedings for the authority to make a proper decision.

It is not in dispute that a record of proceedings was available, despite the fact that it is inundated by anomalies.  I did not hear the appellant clam that the notification of findings and recommendations was not submitted.  Clearly the two documents required for the authority to make a decision were available.

The submission has no merit and is therefore dismissed.

From the foregoing the appeal has no merit and the following order is made.

The appeal is dismissed with no order as to costs.

The appellant’s dismissal is hereby upheld.

Lawman Chimuriwo Attorneys, appellant’s legal practitioners