admincircumstances that called for lighter sentences.
Regedzai Mujera was acting head of Pindi Secondary School when he was charged with acts of misconduct.
It was common cause that the school had just been established as a satellite school in the resettlement areas and Mujera was transferred from Sacred Heart
Secondary School where he was a teacher. The period in question was January 2005 to April 2007.
It was not disputed that this was his first time to be in a position that carried many responsibilities. It was common cause that during this period, the country was going through a very tough time economically, as there was hyper-inflation.
The disciplinary committee found Mujera guilty of some of the charges but found extenuating circumstances as a result of which — it recommended as a penalty — a fine of Z$10 000, a reprimand and warning.
The disciplinary committee considered all the evidence before it, made observations and findings, then came up with a conclusion that a penalty of discharge was not just. The disciplinary committee (DC) recommendations were placed before the disciplinary authority (DA) who considered them and found Mujera guilty of eight acts of misconduct. The (DA) thereafter imposed a discharge penalty. Mujera was aggrieved by the dismissal and appealed to the Labour Court.
It is not doubted that the DC’s recommendations are just that and the DA is not bound by them. It is not in dispute that Mujera admitted to the commission or omission of most of the acts of misconduct.
He admitted to absenting himself on April 3, 2007 because his son was sick. To penalise him for having failed to prove that his son was sick and just for one day was rather too harsh.
Mujera admitted to having failed to procure stationery, exercise books, pens and chalk. He admitted to having failed to open a school account.
He had collected Z$8 000 school levy from certain pupils before the amount was approved. Mujera had not receipted money collected for civies and from farmers.
Mujera had used pupils as labour in picking up cotton from certain farmers. He had not established a finance committee at the school.
The admission of the actus reas does not necessarily mean the admission of the mens reas. The issue to be considered is why Mujera committed or omitted to do those acts. In this case, the DA took an armchair approach and hence the harsh decision it came up with, which decision is grossly unreasonable.
It is not in dispute that Pindi School had just been established and it was in a resettlement area. Mujera was transferred to that school to head it, a position he had never held before, which required expertise to attend to the responsibilities.
It is also not in dispute that total enrolment at the school was not more than 50 pupils and though the fees were pegged, it was not all the parents who paid.
It was the Ministry of Education’s policy not to chase away defaulting pupils and as a result of the little money paid as fees, Mujera thought of generating some m
oney through using the pupils to pick cotton from farms.
It was common knowledge — and a judicial notice should be taken — of the fact that not only his school was having financial dire straits, but the entire country.
There was such hyper-inflation that it was difficult to find money, or find and buy goods. During this period it was pointless to deposit any money in the bank, as it would be difficult to withdraw it.
Under the circumstances the DC’s observation that there was no miracle Mujera was expected to perform in such a situation was correct.
The DC further made the observation that as a new Head without experience; Mujera did not receive any back-up service from his superiors at the district office.
The DC went further and observed that the lack of back-up service led the member confusing his duties doing very little of what was expected to do and keeping no record.
Further, Mujera’s submission that despite requests, no official from the Ministry ever visited the school except when they came to charge him went unchallenged.
In that regard, the maxim “nemo ex proprio davo consequitor actionem” — no one maintains an action arising out of his own wrong is apt.
The Ministry of Education therefore cannot be allowed to rely on a misconduct it had induced as a basis for Mujera’s dismissal. It is a trite position of the law that an appellate court should not interfere with the exercise of discretion by a quasi-judicial body.
In casu however, the DA’s decision was grossly unreasonable in the circumstances, especially taking into account all the circumstances surrounding this case, the
DC’s observations, findings and recommendations which the DA failed to consider. As a result, the penalty imposed by the DA can be interfered with. The DC made the observation that Mujera was apologetic.
In court he made unchallenged submissions that he persevered working under difficult conditions, some teachers countrywide left the service for greener pastures.
Mujera only had three teachers at the school, while he had served very well as a teacher between 1993 and 2005.
He was never charged for any misconduct.
Mujera submitted that he only failed as a Head not as a teacher as much as if he could be reinstated to his position as teacher.
It was submitted on behalf of the Ministry of Education that a demotion to his level of a teacher was better than dismissal in view of the fact that most of these problems were not of his making. These included the hyper-inflationary environment, which made it difficult for him to open an account, the number of pupils and the number of parents that paid fees as well as his inexperience.
the premis, Labour Court senior president Ms Gladys Mhuri quashed the penalty and ordered that Mujera be reinstated to his original position of being a teacher. Ms Mhuri also ordered the DA to comply with the DC’s recommendation and penalty.
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