DISTRIBUTABLE (59)

Judgment No. SC 61/04

Civil Appeal No. 422/02

ZIMBABWE BANKING CORPORATION LIMITED v THANDO NDLOVU

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & MALABA JA

HARARE, MARCH 1 & SEPTEMBER 23­, 2004

R Y Phillips, for the appellant

A M Gijima, for the respondent

MALABA JA: This is an appeal against a judgment of the Labour Relations Tribunal (now the Labour Court) (“the Tribunal”) dated 8 November 2002, in terms of which an appeal from a decision of the Appeals Board of the National Employment Council for the Banking Sector (“the appeals board”) setting aside the decision by the appellant’s Grievance and Disciplinary Committee (“the committee”) finding the respondent guilty of misconduct and dismissing him from employment was dismissed with costs.

The respondent was employed by the appellant (“Zimbank”) as an investigations officer based at its Jason Moyo Street Branch in Bulawayo. On 14 October 1999 he was charged before a hearing officer with four counts of committing category D offences under the Code of Conduct contained in Statutory Instrument 273/00. Three of the offences involved fraud, it being alleged that he facilitated the opening of fictitious accounts at Zimbank’s Branches in Bulawayo and Masvingo with the intention of defrauding Zimbank and had stolen cheques deposited into these accounts, from which funds were then fraudulently withdrawn with his knowledge and participation. The fourth count charged that he was absent from work for five days or more without authority or reasonable cause. The hearing officer found that he had committed the acts of misconduct as charged and imposed the penalty of dismissal.

The respondent appealed to the committee, which dismissed the appeal on 2 December 1999.

On 13 December 1999 the respondent appealed to the appeals board. On 7 February 2000 the appeals board set aside the decision of the committee dismissing the respondent from employment and ordered his reinstatement.

The appeal by Zimbank to the Tribunal on 18 February 2000 against the decision of the appeals board was unsuccessful.

On appeal Zimbank confined its argument to count three only and sought to show that, on the evidence adduced against the respondent on that count, the Tribunal’s decision that he was not guilty as charged and liable to dismissal was grossly unreasonable. The appeal therefore succeeds or fails upon the consideration of the correctness or otherwise of the decision of the Tribunal on the evidence led against the respondent on count three only.

It was common cause before the various bodies which heard the case against the respondent that the fraud which gave rise to the allegation of misconduct being levelled against him was committed against Zimbank’s Branch in Masvingo. An account was opened there on 23 February 1999 under the name Phillip Tadzimirwa by a person who did not answer to this name. A blank cheque was stolen from At The Ready Wholesalers (Private) Limited trading as Power Sales (”Power Sales”) and purported to have been drawn for a sum of $614 921.68 in favour of Phillip Tadzimirwa before being deposited into the fraudulent account on 25 February 1999. Withdrawals of amounts of $250 000.00 and $300 000.00 were made from this account on 6 and 10 March 1999 respectively. The question for determination was whether or not the evidence adduced proved on a balance of probability that the respondent facilitated the commission of the fraud on his employer.

The evidence, on the consideration of which the different bodies determined the question of the respondent’s involvement in the fraud differently, was in the form of two affidavits deposed to by two men who claimed to have been involved in the commission of the fraud.

The first affidavit was sworn to by Taurayi Makadzange (“Makadzange”). He is a former employee of Zimbank who was dismissed from employment on allegations of fraud committed against Zimbank. He said the respondent, who had investigated allegations of fraud which led to his dismissal from employment, approached him and offered to ensure that the pending case against him was dropped provided he agreed to take part in the execution of a plan to defraud Zimbank by opening a fictitious account at its Branch in Masvingo and have stolen cheques deposited into the account and money withdrawn therefrom. He agreed.

On 23 February 1999 Makadzange went to Masvingo and opened the account in the name of Phillip Tadzimirwa. A blank cheque was stolen from Power Sales in Belmont by the respondent’s brother-in-law’s wife and handed to the respondent.

On 5 March 1999 the respondent’s brother-in-law, one Peter Dowa (“Dowa”), advised Makadzange that the respondent was already in Masvingo and wanted them to go there. They travelled to Masvingo the same day and spent the night with Dowa’s relatives. The respondent was booked in at the Flamboyant Hotel. In the morning of 6 March 1999 they met the respondent at Edgars Store and proceeded to Zimbank’s Branch in Masvingo. On arrival, the respondent went into the banking hall to check whether everything was in order. He came back and instructed him to withdraw a sum of $250 000.00 from the account they had opened. As he went into the banking hall, the respondent went to an office where withdrawals were authorised to ensure that authorisation was given. He withdrew the sum of $250 000.00, of which he was given $50 000.00 whilst the balance was shared equally between Dowa and the respondent.

At about 4 am on 10 March 2000 Dowa woke Makadzange up, saying the respondent wanted them to go to Masvingo. They drove in the respondent’s car and arrived in Masvingo at about 8 am. They later met the respondent and proceeded to Zimbank. He withdrew the sum of $300 000.00 from the account after the respondent had made sure that all was well and authorisation of the withdrawal was given. He said he received $20 000.00, whilst the balance was taken by Dowa with the consent of the respondent.

In his affidavit Dowa said the respondent wrote the amount of $614 921.68 on the blank cheque stolen from Power Sales. He said the respondent had a photocopy of signature cards for Power Sales which he said he took from Zimbank.

When confronted with the allegation that he was involved in the fraud on the Zimbank Branch in Masvingo, the respondent denied having been in Masvingo on 6 and 10 March 1999. On 1 October 1999 he sent a memorandum to the head of corporate services division of Zimbank, attacking allegations made against him by the officer who had investigated his case, Mr Goto (“Goto”). On the allegation that he was in Masvingo on the days the withdrawals from the fraudulent account were made, i.e. 6 and 10 March 1999, the respondent said:

“The absence of evidence that Thando Ndlovu was in Masvingo on the days the withdrawals were made complicates Mr Goto’s assertions in his report and proves that he is the designer of a movie style ‘Link to Crime by Design’ for the sole purpose of making his name a household.”

In his report dated 9 September 1999, which the respondent was attacking, Goto, a senior investigating officer in Zimbank’s Legal and Investigations Department, had disclosed the fact that he was relying on information contained in the affidavit deposed to by Makadzange. In his defence to the charge before the hearing officer on 14 October 1999 the respondent said he did not go to Masvingo on the mentioned dates.

It was after Goto produced copies of hotel bills and a written confirmation from Zimbank’s Masvingo Branch manager that the respondent had booked in at the Flamboyant Hotel on 6 and 10 March 1999 and visited Zimbank’s Branch in Masvingo that the respondent admitted that he was in Masvingo on the relevant dates. He now said he was on official business to investigate a fraud allegedly perpetrated against the Reformed Church of Zimbabwe which had an account with the Masvingo Branch of Zimbank. Senior members of the Reformed Church denied that any fraud had been committed against the Church. They said no-one had asked the respondent to investigate its business transactions with Zimbank. The Masvingo Branch manager said the respondent had come to Masvingo uninvited.

On this evidence the hearing officer and the committee found the respondent guilty as charged; whilst the appeals board and the Tribunal thought otherwise.

The appeals board took the view that the evidence was “almost completely circumstantial. The evidence against the respondent was not “very strong”. It said the committee and the hearing officer should not have relied on affidavit evidence from people of “dubious character”. They should have insisted on hearing oral evidence from the three witnesses so that the respondent could cross-examine them.

There was no analysis of the evidence placed before the disciplinary bodies. The case against the respondent was dismissed on evidence which the employer did not adduce. The employer was accused of having failed to prove the case against the respondent beyond a reasonable doubt.

The Tribunal said:

“It is, however, common cause that the two accomplices were men of questionable integrity. Counsel for the appellant (now the respondent) made the valid observation in his written submissions that the two affidavits relied upon by the appellant were:

‘… sworn by persons of dubious probity and in those circumstances there is perhaps an argument that they ought not to be accepted at face value and without corroboration.’

The only corroboration which the appellant’s representative could point at was to the effect that when one fraud was perpetrated in Masvingo the respondent had been booked (in) at a hotel but when questioned he denied having been in Masvingo at the material time.

While it may be true that the respondent may have lied about his whereabouts at the time, the lie cannot be evidence of the fact that while he was in Masvingo he was facilitating the commission of the fraud. …

The two suspect witnesses were not called to testify against the respondent. Their evidence remains raw and untested by cross-examination. No reliance can be placed on their affidavits because being accomplices of dubious character they had every reason to misrepresent facts and to colour their evidence.

That being the case, the appeals committee acted correctly in granting the respondent the benefit of a reasonable doubt.”

The first misdirection by the appeals board and the Tribunal is in the view that the form in which evidence is presented, (whether affidavit or viva voce) and its character (circumstantial or direct) determines whether it is of any probative value. The thinking was that because the evidence against the respondent was presented in affidavit form and circumstantial in character, it could not be relied upon as proof of the respondent’s guilt.

Needless to say, that thinking was wrong. It is the cogency of the evidence that matters and not the form in which it is presented. Evidence in affidavit form is evidence on oath. It can be relied upon – Smith Chatara v ZESA SC-83-01.

The question was not whether or not the evidence should have been presented viva voce, but whether or not in the form it was presented the evidence was adductive of facts probative of the fact in issue, that is to say, the involvement of the respondent in the commission of the fraud against Zimbank.

The evidence related to facts which established that the respondent was involved in the commission of the fraud. The affidavits disclosed that he conceived the idea of the fraudulent plan and instructed Makadzange to go to Masvingo and open the fictitious account. He was said to have obtained the stolen blank cheque which he endorsed with the amount to be deposited into the account. The fact that the stolen cheque so endorsed was successfully deposited at the Fife Street Branch of Zimbank in Bulawayo and went through the clearance system was common cause.

On the two days when the withdrawals from the fictitious account were made, the respondent was not just in Masvingo but at Zimbank’s Branch there. In fact, this was not circumstantial but direct evidence incriminating the respondent in the commission of the fraud. Direct evidence of a fact is the assertion by a person who claims to have perceived it with his own senses. The evidence was that the respondent was in Masvingo and at Zimbank’s Branch in furtherance of a common purpose to fraudulently withdraw the sums of money that were in fact withdrawn from the fictitious account he had had opened.

The facts of the respondent’s presence in Masvingo and at Zimbank’s Branch on the two crucial days when the withdrawals from the fictitious account were made, as averred in the affidavit deposed to by Makadzange, became common cause when the respondent admitted them. The admission of these facts came after the defence of complete denial had been proffered, forcing the employer to produce hotel bills and a statement from Zimbank’s Masvingo Branch manager to show that the respondent had booked himself into the Flamboyant Hotel and was at Zimbank’s Masvingo Branch on the two days when he was alleged to have taken part in the fraudulent withdrawal of the money from the fictitious account.

The only issue for determination was whether or not the respondent was in Masvingo and at Zimbank’s Masvingo Branch in the course of his employment or in furtherance of a common purpose to defraud Zimbank.

Consideration of that question brings us to the second misdirection by the Tribunal. The learned chairman of the Tribunal held that the denial by the respondent that he was in Masvingo at the time he was alleged to have been facilitating the fraudulent withdrawals from the fictitious account could not be evidence of the “fact that while he was in Masvingo he was facilitating the commission of the fraud”. The learned chairman overlooked the fact that the denial constituted the defence the respondent proffered to the charge. He was not denying the fact that he was in Masvingo only but the whole allegation that he was there for the purpose of committing the fraud on Zimbank.

The respondent was aware of the fact that the allegations against him were being made on the basis of the affidavit deposed to by Makadzange to the effect that the respondent was in Masvingo and at Zimbank’s Branch on 6 and 10 March 1999 for the purpose of committing the fraud. He was entitled to admit the fact that he was in Masvingo and at Zimbank’s Branch on the dates mentioned in the affidavit but avoid the inference of the fact that he was there for the purpose of committing the fraud. That defence was open to him. Instead, he adopted the defence of complete denial, placing the onus on the employer to prove the allegations.

The proof produced by the employer was corroborative of the evidence of the fact that the respondent was in Masvingo and at Zimbank’s Branch with the intention of committing the fraud. Once he admitted the fact that he was in Masvingo and at Zimbank’s Branch his defence of complete denial crumbled, raising the level of the credibility of the affidavit evidence. He must have known that the fact of his having been in Masvingo and at Zimbank’s Branch on the dates mentioned derived relevance from being probative of the fact in issue, that is to say, his involvement in the fraud.

That brings us to the third misdirection committed by the Tribunal. Instead of determining what had now become the issue, that is to say, the truthfulness of the respondent’s statement that he was in Masvingo and at Zimbank’s Branch on official business of investigating the alleged fraud on the Reformed Church of Zimbabwe, the learned chairman directed his energy at finding grounds for rejecting the affidavit evidence because it was given by “accomplices of dubious character” with “every reason to misrepresent facts and to colour their evidence”. There was no analysis of the evidence to decide whether it could safely be accepted as proof of the facts contained therein, notwithstanding the fact that it was given by “accomplices of dubious character”.

It is trite that evidence is not rejected simply because it is given by an accomplice or a suspect witness. The correct approach is to examine the evidence and decide whether it is believable. If necessary, corroborative evidence is then sought by the trier of facts to satisfy himself that the dangers of false incrimination ordinarily associated with the evidence of an accomplice or suspect witness are not present in the circumstances of the particular case. It is not an application of this test to say that because a person is an “accomplice of dubious character” his evidence is therefore not to be relied upon as proving the facts to which it relates.

The Tribunal should have found that the admission by the respondent of facts which the accomplice had mentioned in the affidavit for the purpose of incriminating him in the commission of the fraud on Zimbank corroborated the accomplice’s evidence. There was therefore no need to say that the accomplice ought to have given oral evidence and to have been cross-examined because the respondent was in effect incriminating himself. The question was whether he could be believed when he said he was in Masvingo and at Zimbank’s Branch, not for the furtherance of the common purpose of committing the fraud, but to investigate the alleged fraud on the Reformed Church of Zimbabwe.

The officials of the Reformed Church denied that they had been victim of a fraud which could have necessitated an investigation by Zimbank. They categorically denied that they had invited the respondent to carry out any investigation into the financial affairs of their Church.

Zimbank’s Masvingo Branch manager confirmed that the respondent came to the Branch on 6 and 10 March 1999 uninvited. In other words, he was not on official business.

If the respondent had been on official business, he would have compiled a report for the benefit of his employer at the end of an investigation he would have been directed to conduct. No such report was prepared.

In the report to the head of corporate services division of Zimbank, the respondent was convinced that evidence that he was in Masvingo on 6 and 10 March 1999 would not be known by Zimbank, making it impossible to link him to the fraud. The respondent was a former police inspector and a crime investigation officer. In other words, he was not an ordinary employee who would not have known what evidence was crucial to incriminate him in the fraud.

It is clear from what the respondent said in the report to the head of corporate services division on 1 October 1999 that he hoped that the evidence of his having been in Masvingo on the dates mentioned in the affidavit of Makadzange would remain hidden to the employer. That is why he proffered a defence of complete denial. He denied before the hearing officer on 14 October 1999 that he was in Masvingo on the dates mentioned. There would have been no reason at all for keeping information on his visit to Masvingo a secret if he had been there on the official business of his employer.

All the facts, that is to say, the hope that the evidence of the respondent’s visit to Masvingo would remain unknown to his employer, the denial by the Reformed Church officials that there was an alleged fraud perpetrated on the Church to be investigated, and that he was at Zimbank’s Masvingo Branch on the dates in question uninvited, showed that his statement that he was in Masvingo and at Zimbank’s Branch on official business was false. The intentional concealment of information about his movements in the ordinary course of his employment would in any case have been an act of dishonesty inconsistent with the fulfilment of his contract of employment. The absence of official business to explain the purpose of the respondent’s visit to Masvingo and Zimbank’s Branch and his mendacity raised the credibility of the evidence of the accomplice.

The last, but not the least, misdirection by the Tribunal was in the determination of the standard of proof the evidence adduced by Zimbank was required to meet. Reference to the evidence having to be “very strong” and giving the “benefit of a reasonable doubt” to the respondent show that the standard of proof applied to the evidence was one of reasonable doubt as opposed to a balance of probabilities. See ZESA v Dera 1998 (1) ZLR 500 (S) at 503E.

The appraisal of all the evidence adduced leads to the conclusion that the respondent’s involvement in the commission of the fraud on his employer was established on a balance of probabilities.

The appeal therefore succeeds with costs. The decision of the Labour Relations Tribunal is set aside and in its place substituted the following –

“It is accordingly ordered that –

(1) That the appeal against the decision of the Appeals Board succeeds with costs.

(2) That the determination by the Appeals Board be and is hereby set aside and substituted with the order that the appeal against the decision of the Grievance and Disciplinary Committee be and is hereby dismissed with costs.”

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

Gill, Godlonton & Gerrans, appellant's legal practitioners

Gutu & Associates, respondent's legal practitioners