Wizasi Ngoma v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/831/2014
HARARE, 25 NOVEMBER 2014 &
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/831/2014

HARARE, 25 NOVEMBER 2014 &		          CASE NO LC/H/763/2012

19 DECEMBER 2014

In the matter between

WIZASI NGOMA							        APPELLANT

Versus

HEALTH SERVICE BOARD						RESPONDENT

Before The Honourable F C Maxwell	:	Judge

The Appellant in Person

For the Respondent      M Bamu  (HR Officer)

MAXWELL J:

This is an appeal against a decision of the respondent dismissing the appellant’s appeal against the decision of the disciplinary committee. The appellant was the acting accountant at Karoi District Hospital. He was charged with failing to take reasonable care of or making improper or unauthorised use of public money. While working in the accounts department, he was accused of withdrawing money from the Health Service Fund without returning it. He was found guilty and fined two months’ salary which would be recovered in four instalments by the Salary Service Bureau. He was also transferred to the Administration Department with immediate effect.

The appellant has not raised any proper grounds of appeal except to insist that he denies misusing Government funds. He alleges he was cleared by the District and the Provincial Accountants.

The misconduct hearing was held on 4 April 2011. The appellant seeks to rely on statements from the District and Provincial Accountants written after the hearing for the Karoi Zimbabwe Republic Police Criminal investigation Department. The letter from the Provincial Accountant is dated 26 July 2011. That of the District Accountant is dated 25 July 2011. Clearly both statements were not before the disciplinary committee. Both authors did not testify at the hearing and their averments were not tested under cross-examination. It is trite that an appeal is on the four corners of the record. No new evidence can be introduced on appeal without leave of the court. The two statements are therefore improperly before the court and will be disregarded.

The appellant seems to base his case on the fact that the police did not pursue charges against him. On 8 September 2012 he wrote to this court stating that the matter had been reported to the police but was subsequently withdrawn. It is trite that the proof required in a criminal case is proof beyond a reasonable doubt whereas in a civil matter it is proof on a balance of probabilities. See Zesa v Dera 1998 (1) ZLR 506. As such one can be exonerated in a criminal matter but still be found guilty civilly. Considering the facts of this matter, the appellant was accused of having made a payment to a supplier of goods before delivery contrary to the laid down procedure. The appellant was also found with excess cash in his possession. On his own admission he had $700-00 when the limit is $50-00.

The record confirms that the verdict cannot be faulted. On pages 18 – 19 of the record the following is recorded:

“Q  Under normal circumstances, what is the procedure? Do we pay before

or after delivery of goods?

We pay after the delivery of goods, exchange or upon delivery of the consignments. On this issue it was said that the supplier had won the tender so I was told to pay him.

Q.  You clearly said the procedure but why did you violate it in this case. And

you tell us that you can’t recall who told you to advance the supplier?

…

A.	No answer

...

Q	We want to hear what motivated you to violate procedure?

A.	(A moment of silence). No answer

…

Q	You said the supplier persuaded you to pay him the advance was that right?

A.	No.

At the hearing of the matter the appellant gave the impression that since he did not use the money personally he was not at fault. This is against the background of having acted contrary to the laid down procedures which he was aware of. Clearly there is no merit in the appeal.

Accordingly the appeal be and is hereby dismissed for lack of merit.