DISTRIBUTABLE (63)

Judgment No. SC 82/04

Civil Appeal No. 183/03

HUBERT DAVIES & COMPANY (PRIVATE) LIMITED

v OSCAR MUDZAMIRI

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & GWAUNZA JA

HARARE, JULY 15 & SEPTEMBER 30, 2004

T Biti, for the appellant

No appearance for the respondent

GWAUNZA JA: The respondent did not appear to argue his case, despite having filed heads of argument. After satisfying ourselves that he had been duly served with a notice of hearing, we proceeded to hear argument from the appellant’s counsel, Mr Biti.

The appellant charged the respondent with, and found him guilty of, violating para 6:7 of its Code of Conduct, which reads as follows:

“Dishonesty and other Related Offences

Knowingly acting to the detriment of the company in respect of purchases or sales for either personal or other’s gain.”

As the offence carried the penalty of dismissal, the respondent was duly dismissed from the appellant’s employ. The respondent’s appeals, first to the appellant’s disciplinary committee and then to its chief executive officer, were unsuccessful. He thereafter appealed to the then Labour Relations Tribunal (“the Tribunal”), which upheld the appeal and ordered the appellant to either reinstate the respondent without loss of benefits, or pay him damages.

The appellant now appeals against this decision.

The background to the dispute is as follows.

The appellant, whose business includes trading in ERF vehicles and related spare parts, commissioned some undercover investigations into the suspected theft of such spare parts from its workshops. Acting on information from the investigator’s report, the appellant involved the C.I.D. in further investigations, pointing to the respondent as the suspect. The C.I.D.’s involvement culminated in the arrest of the respondent on suspicion of theft. This followed a search of the respondent’s vehicle by a C.I.D. official, who had approached the respondent and demanded to search the car. The search yielded, from the boot of the respondent’s vehicle, a number of spare parts later identified by the appellant’s representative as ERF parts. It has not been disputed by the respondent that the appellant is the exclusive franchise holder of ERF in Zimbabwe.

The respondent recorded a warned and cautioned statement, in which he stated, in part:

“I have understood the caution and nature of the inquiry and I do not admit to (the) charge because I was holding the bearings on behalf of Muwani who wanted to sell them to one by the name Mutasa.”

The respondent also explained that he had had the spare parts for the last four days pending their delivery to Muwani either at his workplace or at his home. The said Muwani later produced receipts suggesting that he had bought the spare parts in question. As this left the police with no proof that the respondent had stolen the parts from the appellant’s workshop, the charges against him were dropped.

The appellant accepted the weakness in the case of theft against the respondent, but was of the view that there was sufficient evidence to prove that the respondent had violated para 6:7 of its Code of Conduct, hence the preferring of charges, in terms of that paragraph, against the respondent.

The report on the disciplinary committee hearing held on 21 May 1999, in my view, gives a good summary of the appellant’s case against the respondent. Paragraph E of that report reads as follows:

“The Committee then discussed all the matters presented and the following is a summary of the relevant issues –

(1) Mr Mudzamiri was in possession of parts used by E.R.F. trucks.

(2) Mr Mudzamiri knew these spares were for sale and the person to whom they were to be sold.

(3) Mr Mudzamiri denied the above to the Committee.

(4) Mr Mudzamiri acknowledged that he would receive payment for his assistance in handling the spare parts.

(5) Mr Mudzamiri would not explain his full involvement regarding possession of the parts for such a long period and there (sic) eventual destination.

The above facts led the Committee to confirm that Mr Mudzamiri was knowingly assisting in the sale of E.R.F. parts for personal gain to the detriment of the Company for which he works.”

It is argued on behalf of the appellant that the court a quo misinterpreted para 6:7 of the appellant’s Code of Conduct, which the respondent was alleged to have violated, and therefore reached the wrong conclusion.

In my view, this contention not only has merit, it also raises a point of law. In terms of s 92(c) of the Labour Relations Act [Chapter 28:01], an appeal to this Court from the Labour Relations Tribunal must be on a point of law. The appeal is therefore properly before this Court.

It is evident from its judgment that the Tribunal’s interpretation of para 6:7 of the appellant’s Code of Conduct was that the offence was not proved unless the accused, in this case the respondent, was found to have purchased or sold the parts in question, or attempted to do so. The observations of the court a quo on p 4 of its judgment are illustrative of this point:

“Thirdly, the offence here is that of either purchasing ‘or selling’, neither of which the appellant (the respondent in casu) did.

Fourthly, the respondent concluded that because the appellant possessed the said spare parts, he intended to sell them.”

And later on the same page:

“Further, to infer intention to sell the parts on the part of the appellant simply because he possessed them is farfetched under the circumstances where another person claims ownership of the same property.”

Contrary to the Tribunal’s observations, the report of the disciplinary committee hearing, referred to earlier in this judgment, makes it clear that the attitude of the appellant was that the respondent had knowingly assisted in the sale of ERF parts for personal gain, to the detriment of the company he worked for.

Mr Biti, who appeared for the appellant, in my view correctly submitted that the essential requirement of the charge preferred against the respondent was one of conflict of interest, that is, knowingly engaging in competition with the employer, directly or indirectly. For the court a quo to suggest that the offence was concerned with the sale of the parts in question is clearly to misinterpret not only the provision in question, but also the facts presented as proof of the commission of the offence.

The evidence before the court a quo shows that the appellant fully appreciated what the essential elements of the offence were. The respondent worked for a company dealing in ERF spare parts; he was found with a number of such spare parts in his vehicle; and even though there was no evidence that he himself intended to sell the parts, he was fully aware that the alleged owner of the parts, Mr Muwani, intended to sell them to a Mr Mutasa. Further, for his role as a “middleman” for Mr Muwani, the respondent was to receive a monetary consideration. Clearly, he was engaging in activities similar to, and effectively competing with, those of the company he worked for. Such activities “involved purchases and sales” for both his personal gain and that of Mr Muwani. The offence under para 6:7 does not require, only, that the accused be directly engaged in the sale or purchase of the parts in question. It is sufficient that by his conduct he facilitated such activities.

I am satisfied, in the light of the foregoing, that the respondent was properly charged with and convicted of the offence in question. His dismissal in the face of such conviction cannot be faulted.

The appeal must accordingly succeed. It is ordered as follows –

1. The appeal be and is allowed with costs.

2. The order of the Labour Relations Tribunal (now the Labour Court) is set aside and substituted with –

“The appeal be and is dismissed with costs”.

CHIDYAUSIKU  CJ: I agree.

ZIYAMBI  JA: I agree.

Honey & Blanckenberg, appellant's legal practitioners