DISTRIBUTABLE
(14)
Judgment
No. SC 15/06
Civil
Appeal No. 103/05
OLIVINE
INDUSTRIES v (1) TONDERAI MUOCHA AND (2) ALBERT
DZAPASI
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA
HARARE,
MARCH 30, & JUNE 19, 2006
N
Moyo,
for the appellant
The
respondents in person
GWAUNZA
JA: The respondents were employed by the appellant as loading
supervisors. They reported to a dispatch manager by the
name of Mr.
Gonzo (hereafter referred to as Gonzo). On 16 April 2003 the
respondents were charged with acts of misconduct
and disciplinary
hearings against them were conducted on 24 April 2003. The result
of the hearings was that they were dismissed
from their employment.
They appealed without success to the appellants disciplinary
committee. Thereafter they appealed to
the Labour Court, which
ordered the appellant to reinstate them without loss of pay or
benefits or alternatively, pay them damages
in lieu
of reinstatement. The appellant was aggrieved by this decision and
has now appealed to this Court.
The
acts of misconduct with which the respondents were charged occurred
against the background of shortages of basic food commodities
experienced in Zimbabwe between 2000 and 2001. The appellant as a
producer of some of these commodities put in place a distribution
system designed to ensure that there was fair rationing of the scarce
commodities that it was distributing to its customers.
A
number of officials were responsible for implementing the
distribution system. One Mrs Houeix (hereafter referred to as
Houeix)
was responsible for determining the nature and
quantities of commodities to be allocated to specified customers each
week. The
list that she prepared showing these details was
circulated within the dispatch departments. It is common cause that
some managers
and supervisors, including the respondents, would
receive such a list. The respondents immediate superior, Gonzo,
was responsible
for implementing the allocations according to the
list prepared by Houeix. Gonzo was specifically responsible for
what was referred
to as load sizes and splitting. The two
respondents were responsible for loading the commodities for delivery
to the appellants
customers. In terms of the list prepared
weekly by Houeix, deliveries to the appellants customers were made
between Monday and
Wednesday each week.
After
receiving a complaint from one of its customers, the appellant
commissioned some private investigations into possible irregularities
in the distribution of its products. It is the appellants case
that the investigations revealed that the respondents, together
with
Gonzo, were responsible for misappropriating its products, allocating
them to some outlets which had already received their
share for the
week, and then buying the same products from those outlets. From
the results of the investigations, the appellant
built what appears
to be a strong case against the two respondents, as appears from its
heads of argument at p 2;
2.11
Between the Monday and the Wednesday, Gonzo and the respondents
would ensure that deliveries were made in accordance with
the
allocation list. Later in the week, between the Thursday and the
Friday, they would unlawfully duplicate that weeks allocation
and
make a duplicate delivery to certain customers. There were no
documents for proof of delivery and no loading sheets for the
duplicate deliveries. These unlawful allocations duplicated the
allocations already made that week, and so were (not?) apparent
on
the papers (pp 31, 58 and 68 of the record).
2.12.
Respondents would have received the allocation or distribution lists
early in the week. They would have overseen the deliveries
early in
the week. Later in the week, they would load goods for delivery to
customers who had already received their allocation
for the week.
Respondents knew deliveries had already been made in terms of the
distribution lists, and they knew that the second
distribution was an
unlawful duplication. They did not produce proof of delivery or
loading sheets for deliveries that they supervised
(pp 31, 58 and 68
of the record).
2.13
After these customers received the second, unlawful allocation,
respondents would go and make purchases of the product from
the
customers, clearly purchasing the product that was a duplicate
delivery (pp 12, 17, 25, and 31 of the record).
It
is not in dispute that at the time these acts of misconduct occurred,
both respondents owned and operated tuckshops in their respective
residential areas. It is to these tuckshops that the goods were taken
and then sold to the public. Although the court a
quo addressed
the issue of whether
or not it had been proved that the sale to the public was at inflated
black market rates, I do not consider
that matter to be
pertinent to the determination of this appeal. It is in view
sufficient that the sale of the products in question,
through the
respondents tuckshops, could only have benefited them personally.
The
appellant also had investigations carried out internally. It
established that the two respondents, who shared an office and
a
telephone extension, made numerous telephone calls to the outlets
that were receiving double allocations, either the day before,
on the
day the deliveries were made, or on the day following that on which
such deliveries would have been made. The appellants
investigators also reported that the respondents were, on at least
four occasions, seen with Gonzo buying product from the appellants
customers and loading it onto their vehicles. One photograph taken
by the investigators showed one of the respondents, again in
the
company of Gonzo, pushing loaded trolleys from Jaggers Msasa branch.
These activities were observed to take place at the end
of the day
just before the outlet concerned closed for the day. The
investigations also revealed that the respondents had accomplices
working within the favoured outlets, as evidenced by the fact that
they moved their operations to any new outlet to which the suspected
accomplices were transferred.
Following
these investigations, the respondents were charged with the following
offences in terms of appellants Code of Conduct:
(i) non compliance with and
failure to follow established procedures;
(ii) wilful
misuse of company property;
(iii) misappropriation, i.e.
applying or attempting to apply to personal use or for any
unauthorised purpose, assets or property
belonging to the company;
and
(iv) conduct likely to bring the
reputation of the company into disrepute.
The
court a quo
did not specifically address the question of whether or not the
misconduct complained of constituted misappropriation of the
appellants
products as defined in its Code of Conduct. It,
however, found that the appellant had failed to prove connivance
between the respondents
and Gonzo in the commission of such acts of
misconduct, since the latter was the one responsible for setting the
allocations. Taking
issue with this finding, as well as the courts
failure to address its allegation of misappropriation, the appellant
alleges misdirection
of both law and fact, on the part of the court a
quo.
I
am persuaded there is merit in the appellants argument and will
consider, first, the question of whether the acts of misconduct
were
indeed committed by the respondents, and if so, whether there was
connivance between them and Gonzo in such commission. I
will
thereafter consider whether such misconduct amounted to
misappropriation of the appellants products, as alleged by it.
The
respondents do not deny that double allocations were made to some
outlets within the same week. They do not deny that they played
exactly the same role in effecting the duplicate deliveries as they
played in respect of the original, lawful ones. The court a
quo, as indicated
below, was of the view that no blame could be attached to the
respondents for playing such a role. The
court was persuaded by
the respondents argument that by not appealing against his
dismissal, Gonzo, who had been charged with the
same acts of
misconduct, had effectively taken on himself all the blame for the
conduct complained of.
I
see no merit in the respondents arguments, which, in my view,
should not have been accepted by the court a
quo. On the evidence
before the court, all three were equally to blame. While Gonzo may
have been responsible for setting the allocations,
it is evident he
would have needed accomplices at the level of loading the products in
question for the deliveries to be effected
to the outlets concerned.
The respondents were loading supervisors. They could not have
failed to appreciate that something irregular
was underway. Indeed
in their evidence they both admitted their awareness of such
irregularity. They, however, claimed that it
was not their place to
question what their superior had instructed. Yet, by processing and
overseeing the loading of the irregular
deliveries, the respondents
effectively admitted they knowingly aided and abetted the
perpetration of an unlawful operation. Their
complicity in the
misconduct is further evidenced by their action in following after
the deliveries to make purchases of products
that should rightly not
have been available to them at the place and on the days on which
they purchased them.
Against
this background, the appellant charges, in my view correctly, that
the court a quo erred
at law in determining that the respondents acted lawfully when they
purported to acquire their employers product from outlets
which
had acquired it unlawfully.
There was further evidence of the respondents culpability. The
appellant alleged that a deliberate effort was made to hide
the
process that was followed in respect of the irregular allocations
since both the proof of delivery and the load sheets were missing.
Being responsible for loading the goods for delivery, the issues of
proof of delivery and load sheets would have been within the
respondents domain of responsibility. The conclusion that the
two may have had something to do with these missing documents
is
therefore inescapable.
When
this evidence is taken together with the other allegations;
(a) that the respondents and
Gonzo were observed together on several occasions at the end of the
week buying appellants products
from the favoured outlets, and
(b) that
telephone calls from their extension were made to the favoured
outlets after the first allocations to them had been delivered,
there
can be no doubt left that the three together committed the acts of
misconduct concerned. That they needed to, and did, connive
in
order to successfully carry out the operation, is therefore not to be
doubted.
The
suggestion of connivance - and not just with Gonzo - is reinforced
when regard is had to the evidence that the respondents obviously
had
accomplices within the outlets concerned, or the other outlets to
which the accomplices were transferred. These accomplices,
according to the evidence gathered, received telephone calls from the
respondents and, it can safely be assumed, made sure that no
questions were asked by the authorities, as to why extra allocations
were made to them within the same week. Clearly, connivance
between
Gonzo, on one hand, and the respondents on the other, was a
prerequisite to the success of the entire operation. So was
connivance between these three, and the accomplices strategically
located within the outlets to which the double allocations were
made.
Given
the weight of the appellants evidence regarding this connivance,
I find that the appellant is correct in its contention
that the
learned President a quo
misdirected himself by making a finding that was so evidently at
variance with the facts placed before him.
The
appellants other ground of appeal is that the court a
quo erred at law by
failing to address the issue of product misappropriation, which
resulted from the improper allocation of the products
that the
respondents then purchased. As already indicated the court a
quo did not directly
address the issue of misappropriation. It referred to the matter
briefly after dismissing the allegation of connivance
between Gonzo
and the respondents, as follows;
Gonzo
himself was charged and found guilty of irregular allocations by
respondent (now appellant). According to respondent, Gonzo
has not
appealed and thus has effectively accepted responsibility. There
was no allegation that Gonzo himself implicated appellants.
The
mere fact that these people worked together or were photographed
together at some outlets is insufficient to prove connivance.
Appellants may have suspected that the allocations were irregular but
since they had no authority to make allocations, they cannot
be held
responsible for acts they could not and did not authorise. This
applies to the alleged non compliance and misappropriation in counts
1 and 3. (my
emphasis)
I
am persuaded by the contention made by counsel for the appellant, Ms
Moyo,
that misappropriation of the appellants product as defined in its
Code of Conduct, took place. The products which were allocated
by
the respondents, without authorisation, to outlets which had already
received their lawful allocation for the week, belonged to
the
appellant. But for their improper diversion to these outlets, the
products would have been allocated to other outlets, at times
and in
quantities that would have been properly determined by Houeix. By
diverting the products to undeserving outlets, with the
deliberate
aim of personally benefiting from such action, the respondents
therefore, completed the misappropriation initiated by
Gonzo. The
facts of the case prove complicity by the respondents in the whole
scheme, which started with the setting of the allocations
by Gonzo,
to be followed by the implementation of the allocations by the
respondents, and ending with the purchase, by all three,
of the
misappropriated products from the targeted outlets. The
misappropriation was an integral part of the illicit operation.
That being the case, I am satisfied the appellant is correct in its
argument that the court a
quo erred at law by
not addressing the charge of misappropriation.
In
misappropriating the appellants products, the respondents, clearly
circumvented laid down procedures concerning the manner in
which
allocations of the appellants products to its customers, were to
be made. As long as it is accepted that the respondents
had
accomplices working within the favoured outlets, it is in my view,
not far fetched to assume that the two made use of the telephone
extension in their office to contact their accomplices and arrange
the deals they were to carry out. Considering that the purpose
of
thus using the phone was to advance and perfect their plans to
misappropriate the appellants products for their own personal
gain, the respondents actions clearly constituted abuse of the
company property. As for tarnishing the good name of the appellant,
the court a quo
correctly observed
that the respondents actions besmirched or seriously
threatened the appellants good name and reputation.
When
all is considered, I am satisfied that the appellant did prove, on a
balance of probabilities, that the respondents committed
the acts of
misconduct with which they were charged. They were, therefore,
properly dismissed. The appeal accordingly succeeds.
In
the result it is ordered as follows:
1. The
appeal be and is hereby allowed with costs.
2. The judgment of the court a
quo is set aside and
is substituted with the following:
The
appeal be and is hereby dismissed.
CHIDYAUSIKU
CJ: I agree.
CHEDA
JA: I agree.
Coghlan
Welsh and Guest,
appellant's legal practitioners