Tapedza Zhou v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 NOVEMBER 2023 & 31
JUDGMENT NO LC/H/31/2024 CASE NO LC/H/20/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 23 NOVEMBER 2023 & 31

JANUARY  2024

JUDGMENT NO LC/H/31/2024 CASE NO LC/H/20/23

In the matter between:-

TAPEDZA ZHOU	APPLICANT

MINISTER OF PRIMARY AND SECONDARY	1st RESPONDENT EDUCATION

PUBLIC SERVICE COMMISSION	2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant	T. Goro (Legal Practitioner)

For the Respondent	Civil Division KUDYA, J:

This is an appeal against part of the decision of the respondents disciplinary authority which found appellant teacher guilty of act of misconduct of being absent from duty without excuse and for refusing to invigilate public examinations that were taking place at his school. Appellant was penalised by a fine of ZWL $45 000, transfer from Highfield School to Simbaredenga School and a reprimand. Appellant is unhappy with the guilty verdict emanating from his alleged refusal to invigilate Public examinations. He is also of the view that the penalties meted on him were harsh.

In response the respondent is adamant that as a teacher appellant was obliged to invigilate public examinations and his refusal to do so culminated in an act of failure to obey a lawful instruction. It also reasons that the penalty meted out was regular taking into account

that there had been verbal exchanges between appellant and the Highfield School head so he could not be let to continue teaching at Highfield.

It is appellant’s case that the intention of the legislature when it enunciated the ZIMSEC regulations pertaining to public examinations was that such be the sole responsibility of ZIMSEC to ensure such administration albeit through delegation to headmasters who in turn were to appoint invigilators.	He reasons that the literal interpretation of the ZIMSEC regulations is that before one could invigilate he has to be formally appointed by the head who then communicates such appointment to ZIMSEC which then approves the appointment before one can proceed to invigilate. He reasons that in his case no such steps were followed to the extent that he felt not obliged to invigilate. He says his duties restricted him to invigilation and marking of internal exams and not public exams. He elaborates that such is in sync with the fact that not all teachers are eligible for marking exams and also that ZIMSEC can nullify results where it is of the view that such were not conducted by properly appointed invigilators. On the other hand the respondents reason that the interpretation given to the ZIMSEC regulations by appellant is too narrow and would lead to an absurd result. It reasons that the rationale behind ZIMSEC bestowing the functions of appointing invigilators on school heads was to avoid a situation where each single head would have to go to ZIMTEC with names of appointed invigilators to seek approval. It reasons further that such a scenario would create chaos in the administration of examination. It therefore reasoned that a wide interpretation of the regulations is what would accord with the requirements that by virtue of office teachers be called upon to invigilate without the rigours of formal appointment and confirmed by ZIMSEC.

The respondents therefore pray that the appeal be set aside as it is not merited. It is settled that appellate powers are invoked in cases of gross irrationality in the exercise of trier of fact’s discretion. See Nyahondo v Hokonya and others 1997 (2) ZLR 457(S). Stemming from the principles in Nyahondo (Supra) the question here is whether it can be said that the wide interpretation of the law given by the respondent is grossly irregular. The court is persuaded that it is not grossly irregular. As noted by the respondent if appellant views that there is absurdity emanating from the fact that the regulations sets out structures of appointment and confirmation whereas on the ground the circulars just endorse the invigilation duty within existing structures such would a good case for taking up as a Constitutional issue to strike down what is the allegedly absurd legislation bit. In the court’s view no good case for appeal has been made out by the appellant as the wide interpretation given by the respondents in the court’s view is equally in sync with the law.

PENALTY

It is settled that such is the discretion of the employer. See Nyawasha v Circle Cement SC-60-

03. Nothing has been set out to establish that the penalty meted was not proper. The court therefore has no basis to fault the penalty.

In the ultimate the appeal is devoid of merit in its entirety and should accordingly fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed. Each party bears own costs.

Mbizvo, Muchadehama and Makoni, Applicant’s Legal Practitioners