No S.C. 60\2002
Appeal No 209\2001
CHARTERED BANK ZIMBABWE LIMITED v KEDSON NKOMO
COURT OF ZIMBABWE
JA, ZIYAMBI JA & GWAUNZA AJA
JULY 16 & AUGUST 8, 2002
for the appellant
for the respondent
JA: This is an appeal against a judgment of the Labour Relations
Tribunal (the Tribunal) which ordered the appellant
bank) to reinstate the respondent (Nkomo) as a teller or,
alternatively, pay him damages.
dispute between the parties has a long history, and this is the
second time that the bank has appealed to this Court against
Tribunals order directing that Nkomo be reinstated or paid
background facts in the matter were accurately set out by McNALLY JA
Chartered Bank Zimbabwe v Kedson Nkomo,
S-7-98 (not reported), at pages 1-2 of the cyclostyled judgment, as
Nkomo was a teller working for the Bank. On 24 June 1996 a customer
approached him. The customer had a Bank cheque made in
one Bright Taruvinga (Taruvinga). It was for $15 000. The
crossing was cancelled. This meant that Nkomo was
entitled to cash
the cheque for the customer so long as he did two things -
had to check with his superior before cashing any cheque over $10
000. He did so. His superior initialled the cheque.
had to satisfy himself that the person before him was indeed the
payee. This he says he did by asking for and receiving the
Identity Card of Taruvinga, and checking it against the appearance
of the person before him. He was (he said) satisfied,
and paid out
transpired that two other employees (now serving prison sentences)
had fraudulently made out the Bank cheque. They debited it
account of some unfortunate customer. One of these two was
subsequently found in possession of, not one, but two metal identity
cards of Taruvinga.
Taruvinga was traced, and said that at different times two of his
identity cards had indeed been stolen or gone missing.
The one was
a replacement for the other. He works in Harare, but said he was at
work at the alleged time the cheque was cashed,
which, according to
Nkomo, was about 3 pm.
innocent customer from whose savings account the money was
fraudulently withdrawn was a Mrs M.L. Crow (Crow).
the bank had the withdrawal form, which had been used in withdrawing
the money from Crows account, and the cheque
examined by Mr
Blackmore, a Questioned Document Examiner. In his interim report,
Blackmore expressed the opinion that Nkomo had
written the details on
the front and back of the withdrawal form.
Nkomo was charged with the following acts of misconduct:-
serious act, conduct and omission inconsistent with the fulfilment of
the express or implied conditions of your contract.
negligence causing serious loss of $15 000.00 to the Bank.
to comply with Standing Instructions or follow established
procedures resulting in the substantial loss of $15 000.00 to
the charges were preferred against him, Nkomo appeared before a
disciplinary committee on 4 September 1996 and was found guilty
charged. As the offences were Category D offences, the penalty for
which was dismissal, that penalty was imposed on the following
the banks Regional Manager.
Nkomo unsuccessfully appealed to the Grievance and Disciplinary
Committee, and the Employment Council for the Banking
He then appealed to the Tribunal and was successful. The Tribunal
ordered that he be reinstated or paid damages.
bank appealed to this Court and was successful in that the decision
of the Tribunal was set aside and the matter was remitted
Tribunal for the leading of further evidence. After further
evidence was led, the Tribunal again ordered that Nkomo be reinstated
or paid damages.
by that decision, the bank appealed to this Court for the second
time. It alleged that the Tribunals decision was so
in its defiance of logic that no sensible person who had applied his
mind to the question to be decided could have arrived
with the merits of this appeal, I would like to indicate the further
evidence which ought to have been led after the
matter was remitted
to the Tribunal. This Court directed that Taruvingas metal
Identity Card should be produced and that Blackmore,
Document Examiner, should be called as a witness.
The need for
the production of Taruvingas metal Identity Card was clearly set
out by McNALLY JA in Standard
Chartered Bank Zimbabwe v Kedson Nkomo, supra,
at page 6 of the cyclostyled judgment, as follows:-
seems to me that in approaching this question (whether there is a
reasonable possibility that Nkomos evidence might be true)
much emphasis has been placed on the fact that Taruvinga probably was
not the man in the Bank with the cheque. It does not
Nkomo must be guilty. One must assume that the conspirators,
having access to Taruvingas Identity Card, would look for someone
at least vaguely similar to Taruvinga, someone who could pass
face on the metal Identity Card. No-one has looked at the metal
Identity Card. It is not an exhibit. But one knows that
pictures on these Identity Cards are far from high quality,
award-winning portraits. It must surely be a possibility that they
found someone willing to assist, unknown to Nkomo, who could pose as
Taruvinga and get away with it.
conclude therefore that the Identity Card should have been produced.
If it is the usual dark picture of an ordinary looking black
indeterminate age, it may be difficult to conclude that Nkomo was
negligent. If it shows a man with some remarkably distinct
the opposite conclusion may be reached. The point is that if Nkomo
reasonably thought it was a picture of the man in front
of him, he
was not negligent.
my view, that accurately sets out the evidential value of Taruvingas
metal Identity Card. Its production at the resumed
the Tribunal was, therefore, essential. Regrettably, it was not
produced and no satisfactory explanation was given
for the failure to
the circumstances, it cannot be said that there is no reasonable
possibility that Nkomos evidence might be true. In the
of Taruvingas metal Identity Card, the bank failed to establish
that when Nkomo cashed the cheque in question he acted
the allegation by the bank that when Nkomo cashed the cheque he did
not follow the banks instructions, and was therefore
has no validity. I say so because it was based on the erroneous
assumption that Nkomo cashed a crossed cheque. Nkomos
was that when the cheque was presented to him for encashment the
crossing had been cancelled, and the cancellation of the
been authenticated by two senior officials of the bank. It was
common cause that the two officials referred to had
the authority to
cancel the crossing, and that Nkomo was familiar with their
the circumstances, the banks instructions concerning the cashing
of crossed cheques do not apply in this case.
now proceed to consider Blackmores evidence. He was called as a
witness by the bank following this Courts order remitting
matter to the Tribunal for the leading of further evidence.
the previous proceedings the Tribunal had concluded that as Nkomo had
not been specifically charged with fraud, Blackmores
irrelevant, a conclusion with which this Court subsequently
disagreed. Commenting on this, McNALLY JA said the following
page 5 of the cyclostyled judgment:-
erred in concluding that because there was no
specific fraud charge the evidence of (Blackmore) was not relevant.
If (Blackmore) had been allowed to give evidence, and if his evidence
had convinced the Tribunal, he would have proved that Nkomo
to the fraud. If he was party to the fraud, he would have known
that the person seeking to cash the cheque was not Taruvinga
would clearly have been guilty on the first charge. He would have
committed a serious act, conduct and omission inconsistent
the fulfilment of the express or implied conditions of (his)
on the other hand, the evidence of (Blackmore) was not regarded as
sufficient to prove the guilt of Nkomo, I am inclined to agree
the Tribunals conclusion (i.e. that the charges had not been
Blackmore testified before the Tribunal and was cross-examined. He
confirmed what he had stated in his interim report
in August 1996,
that in his opinion it was Nkomo who had written the details on the
front and back of the withdrawal form. He,
however, conceded that
his opinion required corroboration by other evidence.
considering the evidence, the Tribunal concluded that in the absence
of corroborative evidence Blackmores evidence was
therefore, did not establish that it was Nkomo who had written the
details on the front and back of the withdrawal
which now arises is whether, as submitted by Ms Mushore,
who appeared for the bank, that conclusion is so outrageous in its
defiance of logic that no sensible person who had applied his
the question to be decided could have arrived at it. I do not think
so, for the following reasons.
In the first
place, Blackmore himself conceded that his opinion required
corroboration by other evidence. It is significant that
corroborative evidence was led to confirm his opinion, and it is,
therefore, reasonable to assume that no such evidence was available.
by Blackmore was an acknowledgment of the fact that the opinion of an
expert as to the identity of handwriting is not
as highly regarded as
the evidence on fingerprints. As Hoffmann
state in The South African Law of Evidence, 4 ed at page 103:-
is generally recognised that the identity of fingerprints can be
accurately established by expert inspection
But the opinion
experts as to the identity
of handwriting is not so highly regarded
page 105 the learned authors indicate the problems which arise when
an attempt is made to identify a handwriting by comparing
another specimen already proved to be genuine, as Blackmore did in
this case, and state as follows:-
difficult problems arise when attempts are made to identify a
handwriting by comparison with another specimen which has been
to be genuine. The courts have frequently emphasised that this
method of identification must be used only with the greatest
A witness who is looking for similarities in two specimens of
handwriting is unlikely not to find any, and this may involve
an unconscious circuity of reasoning
addition, Blackmore was clearly wrong when he said that the signature
of Zungunde, the authorised signatory in respect of the
question, was suspect. Zungunde gave evidence and stated that the
signature on the cheque appearing above the words Authorised
Signatory was his, and that he was authorised to sign cheques on
behalf of the bank. He added that when the fraud was discovered
was not suspected that he had participated in it.
have myself examined the writing on the questioned document (i.e. the
withdrawal form) and compared it with Nkomos
Apart from the similarities observed by Blackmore there are
dissimilarities which cannot be overlooked.
I do not think that it
can be determined with any degree of certainty whether these
dissimilarities are genuine or whether they
are a result of a
deliberate attempt by the writer of the questioned document to
disguise his handwriting.
am, therefore, satisfied that there is no logical basis for the
allegation that the Tribunals decision is irrational.
circumstances, the appeal is devoid of merit and is, therefore,
dismissed with costs.
AJA: I agree
Welsh & Guest,
appellant's legal practitioners
Gideon Ndiweni, respondent's