Venganyi Bvudzijena v Minister of Primary and Secondary Education & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//23
HELD AT HARARE 27 September 2023
AND 3 OCTOBER 2023
CASE NO. LC/H/396/23
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HE LABOUR COURT OF ZIMBABWE				JUDGMENT NO. LC/H//23

HELD AT HARARE 27 September 2023

AND 3 OCTOBER 2023					CASE NO. LC/H/396/23

IN THE MATTER BETWEEN:-

VENGANYI BVUDZIJENA					APPLICANT

AND

MINISTER OF PRIMARY AND

SECONDARY EDUCATION					FIRST RESPONDENT

PUBLIC SERVICE COMMISSION					SECOND RESPONDENT

BEFORE Honourable Mr. Justice L.M. Murasi

For Applicant			Ms C. Mashura

For Respondents			Ms N. Mpande

MURASI J:,

Applicant is employed by as a clerk at Dzivaresekwa 5 Primary School. He was charged with misconduct after it was alleged that he had been involved in what was termed ‘unbecoming and indecorous behaviour’ at the school. He was brought before a Disciplinary Committee which found him guilty. The following penalty was meted out by the Disciplinary Authority:

“a. FINED ZWL $10 000.00 (ten thousand dollars) which amount shall be recovered from your salary in two months instalments.

b. REPRIMANDED. Be warned that any further act of misconduct against you may result in a harsher penalty being imposed on you.”

Applicant has approached this Court on review. Applicant’s grounds for review are formulated as follows:

The Disciplinary Committee was biased against the Applicant in that in noting down the evidence during the hearing, crucial questions asked by Applicant were not recorded and the inspection to the staff quarters was not accurately recorded. The minutes of the hearing were paraphrased incorrectly and not recorded verbatim and were not signed by the Applicant as customary. This had the cumulative effect of painting Applicant as having been aggressive and Mr. Panganai as having been a saint.

The disciplinary committee showed malice and bias by preferring, sanitizing and accepting the evidence of Mr. Panganai without question and discounting Applicant’s version without cause.

At the commencement of the oral submissions, Ms Mpande stated that she had preliminary issues which she wanted to raise. She stated that Applicant had not exhausted the domestic remedies available as the statute provided that Applicant needed to make an application for review to the Public Service Commission before approaching the Labour Court. She argued that the Applicant was therefore improperly before the Court. In response, Ms Mashura submitted that the section referred to by Respondents’ representative was not couched in peremptory terms and this meant that the Applicant was at liberty either to approach the employer or file the review with the Court. She further submitted that Applicant was not complaining about the penalty but the procedure which led to the decision in question.

It is the Court’s view that the grounds for review are in compliance with the provisions of section 92EE of the Labour Act and that the Applicant would be entitled to approach the Court in those circumstances. The preliminary point is accordingly dismissed.

On the merits of the case, Ms. Mashura stated that she was going to abide by the documents filed of record. She stated that there was a deliberate omission of recording of points made by the Applicant by the Disciplinary Committee. She further submitted that the witness, Panganai was not answering questions put to him by the Applicant’s legal practitioner but this was not recorded in the minutes of the proceedings. Ms Mashura further pointed out that the inspection of the staff quarters was not recorded and this only surfaced in the findings by the Disciplinary Committee. The Court pointed out that this was not contained in the Founding Affidavit and Ms Mashura’s response was as follows:

“I agree that we have not submitted the evidence in respect of the allegations made.”

As far as the issue of bias was concerned, Ms Mashura submitted that the Disciplinary Committee was accepting Mr. Panganai’s evidence without question whilst discrediting that of the Applicant. She also averred that the Applicant had filed a separate appeal and that the record of proceedings to be used in that appeal would adversely affect Applicant’s chances were they to be taken as they were.

In response, Ms Mpande stated that she was also going to abide by the documents filed of record. She further stated that the present legal practitioner acting for the Applicant was also part of the proceedings before the Disciplinary Committee and was there to ensure that everything was being done properly. She pointed out that the Inspection Report was compiled by a different team from the Disciplinary Committee even though the latter Committee visited the premises in order to familiarize itself with the surroundings. Ms. Mpande further submitted that the Founding Affidavit left a lot of issues unclarified. She argued that precedent had also pointed to the fact that not all procedural irregularities would vitiate proceedings. She also stated that as far as bias was concerned, no prejudice had been alluded to by the Applicant. Ms. Mpande further submitted that the evidence adduced before the Disciplinary Committee showed that witnesses had corroborated each to the effect that Mr. Panganai’s clothes were blood-stained and that he had visible injuries as a result of the assault and the Disciplinary Committee could not have ignored such evidence. She argued that there was nothing wrong procedurally and the application ought to be dismissed in the circumstances.

ANALYSIS

In Stevenson v Minister of Local Government and Others 2002 (1) ZLR 498 (S), it was stated as follows:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it.”

Elsewhere in this judgment I referred to the concession made by Ms Mashura in respect of the dearth of information in the Founding Affidavit. What emerges from a reading of the documents filed by the Applicant is that the averments made in the grounds for review are not supported by any evidence facts in the Founding Affidavit. The two are completely divorced from each other. What therefore remains are mere averments which do not assist the Court in making a determination as to whether what is alleged in the grounds for view indeed transpired. It is a truism that a Court can only make a finding in favour of an averment where the facts and evidence support such averments. In casu, that cannot be said to be case. Applicant has alleged that omissions were made in the minutes but no indication has been made in the Founding Affidavit as to what issues were omitted. Ms Mashura attempted to ‘fill in’ the missing issues during oral submissions. Alas, these remain submissions and do not amount to evidence.

In Mupandasekwa vs Green Motor Services (Pvt) Ltd SC 30/15 it was held as follows:

“The likelihood of bias can only, logically, be raised before or perhaps during the proceedings in question. In such cases an affected party would normally be expected to request that the person suspected of such bias recuse him or herself from participation in the proceedings in question. There is no record that in casu such a request was made by the appellant in respect of the chairperson of the disciplinary proceedings. Consequently proceedings continued to finality. The appellant could only, after that, have relied on demonstrated bias to request that the proceedings be set aside. The court a quo found that he had failed to do so.”

Applicant’s legal practitioner did not raise any issues about the potential bias of the Disciplinary Committee before the hearing and during the hearing. Ms. Mashura has been unable to point out the ‘demonstrated bias’ in respect of the Disciplinary Committee when one has regard to the both the record of proceedings and the Founding Affidavit. In fact the record shows the following conversation between the Disciplinary Committee and the Applicant:

“D.C.:	Do you have any complaint on how the hearing was conducted?

Mr. Bvudzijena:	No, it was good.”

The Applicant was satisfied with the proceedings. It therefore boggles the mind when he made up his mind that the Disciplinary Committee was biased against him and tended to favor Mr. Panganai.

It is my considered view that the Applicant has been unable to establish a reviewable case against the hearing by Respondents’ Disciplinary Committee.

In the result, the application for review is hereby dismissed with costs.

Pundu and Company- 				Applicant’s legal practitioners

Civil Division of the Attorney General’s Office-	Respondents’ legal practitioners.