Willard Damiso v Minister of Primary and Secondary Education & Anor

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17TH
JUDGMENT NO. LC/H/87/24
CASE NO LC/H/636/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 17TH JANUARY 2024 AND 29 FEBRUARY 2024

In the matter between

WILLARD DAMISO

And

MINISTER OF PRIMARY AND SECONDARY EDUCATION

JUDGMENT NO. LC/H/87/24 CASE NO LC/H/636/23

APPELLANT

1ST RESPONDENT

PUBLIC SERVICE COMMISSION	2ND RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPELLANT : MS. C MAHLANGU (LEGAL PRACTITIONER) FOR BOTH RESPONDENTS : MR. C. CHIBIDI (CIVIL DIVION) MAKAMURE J:

The appellant was employed by the 1st respondent as a teacher. He was stationed at Chigwida Primary School in Mazoe District in Mashonaland Central Province. Allegations of misconduct associated with improper association with a minor girl child were raised against him. Disciplinary proceedings were conducted against him. He was found guilty and was penalized with dismissal. Aggrieved by the outcome he has noted the present appeal.

The appellant and the minor child’s family resided within the school premises. Further the step-mother/mother of the minor child was a teacher at the same school with the appellant.

For the purposes of this judgment the identity of the minor children involved will be

protected. The main witness/complainant will be referred to as “X” . Her young sister will be referred to as “Y” and her friend will be referred to as “F”.

The appellant, was charged along the following lines:

“ Following receipt of a report alleging misconduct on your part, I have to inform you that a charge of misconduct should be preferred against you.

Accordingly , you Mr Damiso Willard a member of the Public service are charged with a misconduct in terms of section 44(2) of the Public Service Regulations , 2000 as amended and as read with paragraph 7 of the first schedule (section 2) to these regulation (sic) which reads ‘…improper association with a minor at any time or place in any manner or circumstances likely to bring the Public Service or any part thereof into disrespect or disrepute…’

The grounds on which this charge is based on are that;

You proposed love to (X) in 2021 and she accepted when she was in grade 6 and you continued with the love affair until this year 2022.

On the 25th of July 2022 you went into X’s room and you had sexual intercourse with her .

When her parents arrived and you covered yourself with a blanket and later sneaked out through the window (sic).’

In his response to the charges he totally denied any such improper association suggesting that the allegations were malicious. He pointed out that similar allegations from the same family were in 2017 levelled against him involving a different girl child and that he was acquitted by the Regional Court

As indicated above disciplinary proceedings were conducted against him. He was convicted and penalized with dismissal. He was aggrieved by that outcome and appeals to this Court on the following grounds:

‘ The Disciplinary Authority grossly erred and seriously misdirected himself in finding the Appellant guilty on a misconduct of improper association with a minor child (X) whereas there was no evidence on a balance of probabilities to sustain a guilty verdict in that :

There was no evidence supporting the existence on record of the alleged relationship between the Appellant and the minor child.

The minor child’s evidence at the hearing was inconsistent and as such , it was unsafe to rely on it without corroborative evidence.

The evidence of the minor child was not corroborated by that of the other witnesses hence the absence of safe assurance that indeed the Appellant proposed love to, and had sexual intercourse with the minor child.’

When the all the grounds of appeal are considered, what comes out is that the appellant is saying that there was no sufficient evidence against him. So, in essence there is only one ground of appeal.

The allegations came to light after X’s father , Mr Mugunje, observed some behavioral changes on his child. These included not coming back home during break times. The father also observed that the window to the child’s room had been broken. Thereafter he persistently sent X to his sister for her (the sister) to investigate what was going on with the child. Reports were compiled resulting in the appellant being identified as having improperly associated himself with X.

The complainant’s father ‘s report was to the effect that one night he heard the door to X’s room open and close .He sent his wife to check on the child but nothing significant was found. When he asked X about this, she denied either opening the door or going outside. This made Mr Mugunje suspicious. Mr Mugunje referred X to his sister. She went to the sister (her paternal aunt).X did not disclose anything to her aunt. On 23th July Mr Mugunje and his wife went to attend his mother’s funeral. Upon their return on the night of the25th July, they found the light in X’s room on but as soon as they had arrived and placed their bags down, the light was switched off. X did not come to welcome them. The following morning Mr Mugunje discovered that the window pane of X’s room was broken . The broken glass was both outside and inside the house. When X was asked about it, she did not respond. Mr Mugunje once again sent her to his sister.

Y, X’s young sister also submitted a report. Her report was to the effect that the appellant sent her to call X on three occasions. Part of her short report reads: ‘ … I saw that these people were in love , but I was scared to talk.’

X’s friend F submitted a report to the following effect and I quote: ’I ‘m a friend to X and she told me that there is a teacher who likes her and I told her that you can like him also but also know how to like him; the other day he came 2litres drink and some choice biscuits and we ate but the teacher liked her (sic).’

I will now refer to the report submitted by X herself. It reads as follows: d

‘With Mr Damiso we started dating when I was in grade 6 term 2. He proposed to me and I said no, the following day in the morning he proposed again , and I said No. Sir Masecho went out and Mr Damiso came in our class, and he drew a Chess game on my book and when Mr Masecho came back we started to his work(sic).

The following morning Mr Damiso I accepted Mr Damiso’s proposal, when he was proposing me he gave me a packet of zapnax and saying that I should bear a child for her. We used to see each other during school hours, coming from home to school and during lunch hour.

The other day my father went to the mountains for his prayers and Mr Damiso came to our house , and we slept together, my father came back the following day on Saturday .

The other day my father went Harare, and he came back on the 25th of July and Mr Damiso was in the house and when they came back Mr Damiso woke up.”

When disciplinary proceedings were conducted witnesses were called tom testify. These included the appellant himself, X, Y, F, her father , stepmother and paternal aunt. These are the same people who had submitted reports.

The appellant denied the charges. He told the Disciplinary Committee (the Committee) that similar charges were levelled against him in 2017 but he was acquitted of those charges by the criminal courts . He stated further that Mr Magunje, the father of X and himself used to be the best of friends but that had since changed. He also stated that X’s step mother influenced grade 7 class to implicate him. He denied the alleged incident of 25th July where it is alleged that he slept at the complainant’s house and later sneaked out of the house through a window. He indicated that he knew X in her capacity as a student and in that capacity assisted her together with other girls and that the girls used to come to him in groups.

The complainant told the Committee that she knew the appellant. She addressed him as Willard Damiso and not as Mr /Sir. The following is part of the exchange which took place between the Committee and X:

C : Why address him as Willard Damiso is he not your teacher. X:Whose teacher , he proposed love to me when I was grade 6. C: Does he not teach you ?

X: No he was teaching my young sister who was in grade 5.

C: You are looking angry you must be free so that you tell us the truth of what transpired you seem to have hated him that much to an extent of not even want to look at him (sic).

X: I do not want to talk to him.

C: Can you tell us about an issue which happened between you and Mr Damiso? X: He proposed love to me when I was in grade 6 term 2

C: How did it start?

X: He used to come to our class when our teacher was not in. He came to my desk and told me that he loved me. I told F who said if you agree your father will beat you .The second and third days again I did not agree F kept on saying your father will beat you.

C: Who is F?

X: She is a local girl , we were in the same class. C:Can you go further with your explanation?

X: On the fourth day my teacher went out of the class, Mr Damiso came to our class proposed me again and this time I accepted his proposal. The next day he came again when our teacher was out, he asked me to give him my exercise book. He drew a draft he asked me to play draft with him which I did . When Sir came back, he saw the draft on my exercise book he asked who drew it I told him that it was Mr Damiso…’

X proceeded to tell the Committee how the Appellant later sent Y , her young sister to call her and she (X) went to him. She said the appellant told him not to tell anyone that there was a love affair between them. He allegedly sent Y with some chips. On yet another day he came to the complainant’s class when her teacher was not there and gave them work as a class. Appellant allegedly collected the books for marking and when the books were returned, US5 Dollars (five USD) had been placed inside her book. The appellant allegedly used to send Y to buy chips at break times. He would go to the complainant’s house on

Thursdays and sleep .X continued as follows : ‘.. Another day he asked me if my father was there I told him he went to Harare and he came in the evening and got into my room we slept together , that day my father came back whilst we were sleeping together , and the light was on . Mr Damiso told me to put off the light which I did. He covered himself with a blanket and later told me to break the window and he escaped through the window.’ X continued to narrate that the appellant used to visit her at her house in the evenings ; that she never told

anyone because he threatened to kill her if she did; that she disclosed to her aunt because her father insisted that she should tell her aunt what was happening in her life. During the course of the proceedings the Committee observed that X appeared angry or bitter . X confirmed this and said that the reason was because the appellant had stopped talking to her. She also told the Committee that the appellant wanted her to give him another child as he had only one child. Under cross examination she maintained that the appellant proposed love to her ; that he gave her 5USD ; that he used to come to her house mostly on Thursdays and he was intimate with her many times; that she later told her aunt about it because her father insisted on her disclosing exactly what was happening in her life; that her father was angry about the broken window; that he (Appellant) first proposed when she was in grade 6 during term 2.She was cross-examined by the appellant ‘s legal practitioner. She added some detail which she said she had forgotten to write. It also came out during the cross-examination that she had refused to write the report about this matter but that she had told one Madam Chideu what to write. When the report was read to her she confirmed that it was her report. She also indicated that she could not write. X answered questions but at times she did not , she just kept quiet. On further cross- examination she confirmed that the appellant had been to her house many times and was intimate with her. The following is part of the exchange between her and the appellant’s legal practitioner:

‘Q:You said he was coming to sleeping(sic) with you can you make it clear how he slept with you?

A:He was sleeping on top of me

Q: What was he doing on top of you?

A: I am failing to find real words to answer to that.

Q: You can choose any lady here whom you free to tell what real happened (sic).

A: I can tell that one (Mrs Madzvimbo was the one chosen) so X stood up together with Mrs Madzvimbo she whispered to her. Madam Madzvimbo then said she was saying he would force hi penis inside her private part ( having sexual intercourse with her).

Q: Why didn’t you tell anyone?

A: I later on told my aunt , I was afraid because my father was going to beat me if I were to tell him the truth that he had sexual intercourse with me.

Q : So you said it to your aunt because you were afraid of your father? A: Yes.

Q What made your father beat you?

A: The broken window which Mr Damiso persuaded me to break and used to escape on the day my parents came whilst he was sleeping together in my bedroom he went out through that broken window.’ ( Emphasis added).

The complainant’s father testified before the Committee. His testimony was to the effect that X was staying with her grandmother then she indicated that she no longer wanted to stay there. He therefore brought her to learn at the school where the allegations arose . He did not know the reason why she no longer wanted to stay with the grandmother. He noticed that X’s movements were suspicious but could not tell why . He suspected ill-treatment by his wife , X’s step mother . X stopped coming back home for break saying she had work to do. He paid an unexpected visit to the school and on inspecting X’s books discovered that there was nothing written in her books. In other words, she was not doing any work. He asked for another pupil’s books and saw that that pupil had done some work. One day he observed the appellant passing by his home ( complainant’s father’s) and noted that he (appellant)and the complainant greeted each other using slang language. He basically repeated what he submitted in his report with the some more detail which I have tried to highlight. He described his daughter as being dull in school and slow to respond and that she would only divulge information when pressurized to do so.

The complainant’s aunt Kindness Murerwa testified before the Committee. She repeated what she submitted in her report. She told the Committee about how her brother was concerned about the complainant’s behavior and how he impressed upon her that she should get the

truth of what was going on in X’s life. The brother was concerned about the broken window pane to X’s bedroom. It was to this aunt that X confessed about how the appellant had proposed love to her when she was in grade 6 during term 2 of the year 2021 ; that she initially turned him down but that he insisted until she accepted his proposal in 2022; that the appellant used to go and sleep with the complainant at her house usually on Thursdays ; that the appellant used to send Y to buy some food items; that she also asked Y who confirmed the same.

Another witness who testified before the Committee was the complainant’s step mother, Ms Dandadzi. Her evidence was similar in many material respects to that of the father. She heard rumors and later observed the appellant going to the complainant’s class and talked to her.

She said she asked the complainant about it and that the complainant refused. She brought

this to the attention of her husband but her husband told her to’ leave it’. She is the one who was asked by the father to go and check on the complainant the night when the door to the complainant ‘s room sounded to have opened and closed. She also observed that X was no longer coming home during breaks but Dandadzi thought that the complainant was avoiding household chores . Dandadzi adhered to her testimony under cross-examination.

The final witness to testify before the Committee was Mr Kamudzandu the School Head. He received a call from the complainant’s father alleging that his child X was abused. He set in motion the investigations which culminated in the disciplinary proceedings leading to the appeal now under consideration.

When parties appeared before the Court Ms Mahlangu who appeared on behalf of the appellant , in addition to the papers filed of record pointed out that the complainant did not initiate the process. It was argued on behalf of the appellant that the child was interrogated more than four times but she kept denying and came up with different stories. It was argued that the charge zeros in on the 25th of July as the date when the allegations arose and yet the minor child’s parents were away. Ms Mahlangu attacked the evidence of Y where she said that she was given some oranges by the appellant and yet there was no evidence in support of that statement. Ms Mahlangu argued that during the course of the disciplinary hearing X was angry because the appellant was ignoring her. She submitted that children submit to pressure. Ms Mahlangu submitted that there were too many inconsistencies and that the Committee seriously misdirected itself. It was further argued on behalf of the appellant that the

complainant’s parents themselves stated that the complainant was unreliable. She pointed out that the only evidence before the Court was that of the complainant who was an unreliable witness. On the other hand argued Ms Mahlangu , the appellant was consistent in his denial. He faced similar allegation in 2017 but the he was found not guilty by the courts and now new allegations have been levelled against him.

On the contrary Mr Chibidi who appeared on behalf of the respondents started by cautioning that as a court of appeal should be slow to interfere with findings of the lower tribunal and that the Court should be guided by longstanding authorities . Mr Chibidi referred the Court to

Nyahondo v Hokonya & Others 1997 (2) ZLR 475 (S) in support of this argument. He pointed out that cases of a sexual nature are not easy to prove especially were minor children are concerned as they happened in private. Mr Chibidi further argued that parents have a duty to look after their children. The father was therefore only performing his parental duty after he had observed the changes in X’s behaviour .Mr Chibidi argued that in the present matter the Committee considered the evidence which was placed before it and found the appellant guilty. Mr Chibidi argued that the complainant and her young sister gave clear evidence. It was submitted on behalf of the respondent that the Committee had the benefit off assessing the demeanour of the witnesses. Mr Chibidi argued that under the circumstances the suggestion on behalf of the appellant that there was no evidence was misplaced. He submitted that there was overwhelming evidence against the appellant and that such evidence was corroborated.

In reply , Ms Mahlangu urged the Court to interrogate everything. She submitted that there was no serious objection to the appeal and prayed that the appeal succeeded.

One thing that I find striking in the present case is that the minor child may have been interrogated many times over. However, it appeared that her father was actually wondering what was happening to his daughter. From the record , he did not suggest during all those

“interrogations’ what was happening. He asked. Her father observed a change of behaviour in the child. When he did not get a convincing explanation, he persisted in asking . For example

,the child was no longer coming back home during tea breaks. Her explanation was that she had a lot of work to do. When he went to check the child’s books at school, he found that she was actually not doing any work , there was nothing written in her books and yet other children ‘s books had work written in their books. One night he heard the sound of a door open and close. It was not explained who had opened and closed it. On the 25th of July he and his wife returned home from where they had gone the during the night. On their arrival they saw that the light in X’s bedroom was on but it was then switched off. The child did not come to welcome them. The following day it was discovered that the window pane to the child’s room was broken. There was no explanation on how or who broke it. Things like this caused him to wonder and this resulted in him sending her to his sister for the sister to ask X what was happening in her life. The sister did not get an answer easily so she continued to ask. The record shows that the child was said to be difficult. The aunt, Ms Murerwa, persisted in asking. The complainant then confessed that there was a love relationship between herself and the appellant and that the appellant proposed to her during term two of the year 2021

when she was still in grade 6 . The rest of the aunt’s evidence corroborated what the complainant told the Committee. I find it telling that the Committee observed that when the child was giving evidence she addressed the appellant as ‘ Willard Damiso’ retorting ‘whose teacher’ when asked why she was addressing her teacher in that manner, stating that he had proposed love to her during term two of the year 2021 when she was still in grade 6.The Committee also observed that the complainant appeared to be angry , bitter and looked at the appellant with hatred. The child told the Committee that she did not want to talk to him and that he had stopped talking to her and was ignoring her which annoyed her ( pp40, 41 of the consolidated record) .

The evidence of a child especially in cases of a sexual nature must always be approached with caution. Children are impressionable and may tell things imagined and not the truth. Further, in the present case the appellant’ s job is at stake. One must guard against being misled into making a decision which will jeopardize the appellant’s life. At the same time the interests of the minor child must be protected . However, whether or not the appellant’s job is at stake , the Court must be guided by what is on record and argument in order to get to the truth. . As the saying goes , justice must not only be done, it must be seen to be done.

The learned authors Hoffman and Zeffert in their book South African Law of Evidence 3rd Edition, Butterworths at page 456, have this to say on the evidence of young children:

‘Young children are competent witnesses if the judge considers that they are old enough to know what it is to tell the truth, but it has frequently been emphasized that their evidence should be scrutinized with great care. The danger is not only that children are highly imaginative but also that their story may be the product of suggestion by others . In sexual cases, for example, a child who is prompted by leading questions when he first makes a complaint is quite likely to believe that things which were suggested to him really happened’.

In the present case it is not disputed that X was asked on several times as to what was happening in her life. This arose because her father was concerned about her. She was reluctant to say anything. In her evidence she said that the appellant threatened her with death should she disclose the nature of the relationship between them. When asked she would simply keep quiet. Her aunt persisted in asking. That is when she told the aunt about the love relationship between herself and the appellant. It is noteworthy that she was not asked a leading question.Rather,she was asked to explain what was happening in her life. X then

confessed. From the confession to her aunt, the explanation about her strange behaviour as noticed by her father was unraveled.

In Nyahondo v Hokonya and Others (above)the Court stated that : ‘ In civil , as opposed to criminal cases, it is sufficient for a plaintiff to establish, that, on the evidence adduced by the parties ,his is the more probable cause.’ The same Court also held that as a general rule ‘an appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court , the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’ See also Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12; Barros and Anor v Chimponda 1999 (1) ZLR 58; Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd SC12/15.

In Kudzai Mwatukuya Mubaiwa ( nee Chikumba ) v Gainmore Mubaiwa SC19/22 the court held that issues of the credibility of witnesses are the preserve of the trial court and the appellate court is generally reluctant to interfere with such findings unless they cannot be supported…’.

In the present matter the Committee found that the complainant was a reliable witness. What she said was corroborated by her young sister and her friend. The Committee had the opportunity of assessing the demeanor of the witnesses which chance this Court does not have as it is confined to the record. After assessing the record and argument , I am persuaded to agree with Mr Chibidi that the minor child gave her evidence well. Her version sounds more probable than that of the appellant. While it was argued on behalf of the appellant that he maintained his denial and was therefore more credible than the minor child, I find that the appellant had nothing much to say except to maintain his denial. The minor child on the other hand had to explain what was happening in her life. She was consistent. Further during the disciplinary hearing , the Committee made observations about the demeanor of the child which this Court finds difficult to disbelieve. The conduct of X during the course of the disciplinary hearing was consistent with how her father described her, that is she would not disclose anything until she was pressurized to do so. It is also noteworthy there was a detailed narration in some instances of circumstances which appear peculiar to the appellant and X. For example the appellant gathering the children’s books to look at their work and when the books were returned there was a five dollar note in her book; the appellant drawing a game

of drafts on the child’s book and that she disclosed upon inquiry by her teacher that it was the appellant who had drawn it. Such detail does not appear to have been imagined. I also find that there was sufficient evidence through the testimonies of F and Y, supporting the existence of a relationship between the appellant and the minor child. The evidence of the minor child was therefore corroborated. This makes it more probable than not that there was an improper association between the appellant as the minor child’s teacher and the minor child.

In the circumstances therefore ,there is sufficient evidence pointing towards the guilt of the appellant. I find that there is no merit in all the grounds of appeal. In the result I find that there was no error or gross misdirection on the part of the Disciplinary Authority.

In view of the foregoing , there is no merit in the appeal. The appeal fails.

It is accordingly ordered that the appeal be and is hereby dismissed with costs.

RUZVIDZO AND MAHLANGU , APPELLANT’S LEGAL PRACTITIONERS. CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE,

LEGAL PRACTITIONERS FOR THE RESPONDENTS.