disciplinary proceedings against employee https://old.zimlii.org/taxonomy/term/10411/all en Delta Beverages (Private) Limited v Shumba (SC 167-20, Civil Appeal No. SC 544/19) [2020] ZWSC 167 (26 November 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/167 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p><strong>DISTRIBUTABLE</strong><strong>:             (157)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>DELTA     BEVERAGES     (PRIVATE)     LIMITED</strong></p> <p><strong>V</strong></p> <p><strong>JOHN     SHUMBA</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; CHITAKUNYE AJA</strong></p> <p><strong>HARARE: JULY 10, 2020 &amp; NOVEMBER 26, 2020</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T.L. Mapuranga, </em>for the appellant     </p> <p><em>J. Bamu</em>, for the respondent</p> <p> </p> <p> </p> <p> </p> <p>                   <strong>CHITAKUNYE AJA:   </strong>This is an appeal against the whole judgment of the Labour Court, dated 3 April 2019, setting aside the dismissal of the respondent by the appellant. The facts giving rise to the appeal are largely common cause. They may be summarised as follows:</p> <p> </p> <p>                   The respondent was employed as a Forklift Driver by the appellant, whilst concurrently enjoying the position of President of the Brewing and Distilling Workers’ Union. In 2018, allegations of misconduct were levelled against him and subsequently, he was charged with three counts of misconduct in terms of the Delta Beverages Employment Code of Conduct (the Code). Pursuant to the disciplinary hearings, he was found guilty and dismissed from employment.</p> <p> </p> <p>       The first count of misconduct was uttering a false document wherein the respondent allegedly drafted a petition to the appellant under the guise of all employees with false contents in contravention of ss 30 and 31 as read with s 1.1 of Annexure II to the Code. The second count of misconduct related to an alleged failure to follow due process in that the respondent called for and addressed meetings of fellow employees of the appellant during working hours without senior management’s approval in contravention of s 14(13) under annexure I of the Code as read with s 2.4 of Annexure II to the code. The third count of misconduct was failure to comply with established procedures/standing instructions on communications policy whereby the respondent allegedly took company issues to a newspaper in contravention of the Code.</p> <p> </p> <p>       The misconduct charges against the respondent were initially heard before the appellant’s Superior Level Committee, which found the appellant guilty. An appeal against that determination was subsequently made to the appellant’s Head of Department Committee and thereafter to the Works Council. Both appeals failed. Having pursued all of the internal processes of appeal available to him within the company structures, the respondent subsequently noted an appeal to the court <em>a quo</em>.</p> <p> </p> <p> </p> <p>                   On the first charge of uttering a false document, it was the appellant’s contention in the court <em>a quo</em> that a document was purportedly prepared by the respondent petitioning the Board responsible for the administration of Delta Employee Share Participation Trust (“the Trust”) to dissolve the said fund and pay every beneficiary thereon by 31 March 2018. The petition was said to be premised on an allegation that the Trust was not delivering on its objectives in that there were no beneficial rights accruing to the employees and a general fear of mismanagement of the Trust by non-beneficiaries thereon. According to the petition, the fear was spurred on by a perceived high casualization of labour by the appellant.</p> <p>       The petition document was not produced in the court <em>a quo </em>but it was established as common cause that a disciplinary hearing conducted by the Works Council (“the Council”) ultimately determined that the contents of the offending document were false. The court <em>a quo </em>found that the Council failed to highlight evidence proving that the respondent had authored the petition document or that the contents therein were false. Furthermore, it was found that the Council neglected to canvass the "uttering" aspect of the offence which was aggravated by a lack of evidence to establish the respondent's guilt. In light of the perceived paucity of evidence against the respondent, it was the court <em>a quo</em>'s considered view that the Council ought to have acquitted him on that particular charge.</p> <p> </p> <p> </p> <p>       With regards to the second charge, it was contended by the appellant that the respondent had addressed employees’ meetings on 16, 17 and 18 January 2018 during working hours without the requisite approval from senior management. The respondent denied liability on the premise that he had acted in his capacity as a trade union official. It was the respondent's position that any liability arising from his address to the employees or consequent remedy sought by the appellant be directed towards the trade union as provided for in the Labour Act [<em>Chapter 28:01</em>].</p> <p> </p> <p> </p> <p>                   The respondent's view did not find favour with the court <em>a quo</em>, which upheld council’s finding that as both an employee of the appellant and a trade union official, the respondent had an obligation to comply with due process as established by his employer. The court <em>a quo</em> in effect confirmed the conviction on this count.</p> <p> </p> <p>       On the third charge of misconduct, it was alleged that the respondent gave an interview to the press/media on matters pertaining to the Trust, in contravention of company communication policy. The Council had sight of the article concerned and after analysing it, concluded that the respondent was guilty of the offence as had been determined by the appellant's other disciplinary committees which also had sight of the article in which the respondent made utterances in contravention of company policy. The Council further found that the respondent's evidence was unreliable in that whilst he denied liability and alleged that there were certain persons within the company that had engaged the press, he had failed to adduce any evidence to substantiate his allegations.</p> <p> </p> <p>       The court <em>a quo's </em>finding on this issue was that the Council had proceeded on the basis that the respondent was guilty and bore the <em>onus</em> to exonerate himself. It was ascertained that the respondent did not admit to the offence. The court <em>a quo </em>was of the view that the evidence of guilt against the respondent was tenuous and in the circumstances, it would be improper to impute liability on him for the misconduct of other employees.</p> <p> </p> <p>       In the result, the court <em>a quo </em>found that the respondent was not guilty of the first and third charges. However, he was found guilty of the second charge of misconduct of addressing employees' meetings in contravention of due process. The applicable penalty for the offence in terms of the appellant's Code was determined to be a final warning on a first breach and dismissal on a second breach. The court <em>a quo</em> surmised that submissions not having been made by the appellant as to whether or not the misconduct constituted a first or second breach by the respondent, or whether or not there was a valid warning operating against the respondent, the appellant had failed to discharge its <em>onus</em> to prove the appropriate penalty in terms of the relevant Code. Ultimately, it was held that the appellant failed to sustain the penalty of dismissal imposed on the respondent. Resultantly, the court <em>a quo</em> upheld the respondent's appeal and ordered his reinstatement or alternatively, payment of damages <em>in lieu</em> of reinstatement.</p> <p>       Dissatisfied by the decision of the court <em>a quo</em> the appellant noted an appeal to this Court on the following grounds:</p> <ol> <li>Having found that the respondent was properly convicted on one of the charges he faced and having concluded that he could properly be punished in terms of the law, the court <em>a quo </em>erred in nonetheless allowing the whole appeal without qualification and thus upsetting even a confirmed conviction.</li> </ol> <p> </p> <ol> <li>The court <em>a quo </em>erred in not considering that the findings of fact which had been made by the Disciplinary Committee had been confirmed on appeal and so erred in failing to appreciate the limited role that it was required to play in considering the matter.</li> </ol> <p> </p> <ol> <li>It having been common cause that the respondent had attended and addressed the meetings at which the contents of the false petition were read out and the encouragement was given for the employees to sign it, the court <em>a quo </em>erred in concluding that the evidence of "uttering" of that petition had not been produced.</li> </ol> <p> </p> <ol> <li>A <em>fortiori</em>, the court <em>a quo </em>erred in not investing with any validity the fact that the conviction for addressing a meeting which it had upheld was so intrinsically linked to the uttering of the document, that the two could not be taken apart.</li> </ol> <p> </p> <ol> <li>The court <em>a quo </em>erred in concluding that there had been no evidence that respondent had spoken to the press notwithstanding that his words were quoted verbatim in the press report, and no warrant existed for the conclusion it arrived at that it was only "some" of the employees who had been interviewed.</li> </ol> <p> </p> <ol> <li>The court <em>a quo</em> erred in all circumstances in not considering that the misconduct with which respondent had been charged and for which he had been convicted was sufficiently serious and invested in appellant the right to dismiss him from employment.</li> </ol> <p> </p> <p> </p> <p>             At the hearing of the appeal, counsel for the appellant, Mr<em> Mapuranga</em>, submitted that the court <em>a quo </em>erred by convicting the respondent of the second charge of misconduct of calling a meeting without following due process whilst proceeding to contrarily grant his entire appeal. It was further submitted that the court <em>a quo </em>misdirected itself by failing to find that direct evidence had been led establishing the liability of the respondent for breach of the appellant's code of conduct. Mr<em> Mapuranga</em> argued that the respondent had, in violation of the relevant code of conduct, engaged the press through the medium of an interview and made comments pertaining to the appellant, thus he was guilty of the third count of misconduct. He further averred that it was highly improbable that the respondent called a meeting for the purpose of discussing a petition, without actually producing the said document at the meeting. Counsel for the appellant further took the point that the respondent had an evidentiary burden to rebut the allegations established against him. </p> <p> </p> <p>             Counsel for the respondent, Mr <em>J.  Bamu</em>, conceded the point that the operative part of the judgment <em>a quo </em>failed to uphold the partial conviction of the respondent, which omission constituted an irregularity. However, he went on to submit that the appellant had failed to lead evidence to support its case on the penalty. It was further submitted that the entire case turned on considerations of evidence, which evidence was not led by the appellant.</p> <p> </p> <p>             From the grounds of appeal and submissions made by the parties, the issues for determination are as follows:</p> <ol> <li>Whether or not the court <em>a quo </em>misdirected itself in failing to impose a sanction against</li> </ol> <p>the respondent, pursuant to a determination that he committed an act of misconduct.</p> <p> </p> <ol> <li>Whether or not the court <em>a quo </em>misdirected itself by failing to find that direct evidence</li> </ol> <p>had been led establishing the respondent's liability for "uttering" a false document and his involvement with the press.</p> <p> </p> <p> </p> <p>                   The issues shall be considered <em>seriatim</em>.</p> <p> </p> <ol> <li><strong>Whether or not the court <em>a quo</em> misdirected itself in failing to impose a sanction against the respondent, pursuant to a determination that he committed an act of misconduct.</strong></li> </ol> <p> </p> <p> </p> <p> </p> <p>                   The court <em>a quo</em> in its judgment upheld the conviction on the second charge, that of calling for meetings of employees during working hours without following due process. The court <em>a quo</em> observed that in terms of the appellant’s code the penalty for a first breach for this offence was a final warning. Dismissal was for second breach. The court <em>a quo</em> opined that the appellant had not led evidence as to whether this was the first or second breach; if it was the second breach, whether the final warning in respect thereof was still operational. This conclusion was not consistent with the record of proceedings from the lower tribunals. The record of proceedings of the Immediate Superior Level shows that in its determination it passed sentences in respect of each count as follows; for count one dismissal which is the penalty provided in s 1.1 of annexure II to the code; count 2 final warning which is the penalty provided in s 2.4 of annexure II to the code.; and count 3 final warning. It is clear that for count 2 the penalty imposed was a final warning which was consistent with a first breach. This was consistent with submissions made that the respondent was a first offender. It was therefore incorrect to hold that there was no evidence on this aspect. What that committee did was to consider the overriding penalty and hence imposed the overall determination of dismissal.</p> <p> </p> <p>                   It is my view that had the court <em>a quo</em> considered this fact it could, at the very least, have upheld the penalty as imposed by the lower tribunal on this one count. The failure to impose a penalty was clearly a misdirection.</p> <p> </p> <p>       The overriding penalty of dismissal arose from the aggravating circumstances which included the number of charges and the fact that the penalty for the first charge was dismissal. The question of an appropriate penalty to pass is within the discretion of the employer where an employee commits a dismissible act of misconduct. For an appellate court to interfere with the penalty imposed by the employer in the exercise of its discretion there needs to be proof that the exercise of the discretion was impeachable. This principle was laid out in <em>Barros &amp; Anor v Chimphonda</em> 1999 (1) ZLR 58 (S) at pp 62-63 G-H, wherein the court held that:</p> <p>“It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution...”</p> <p> </p> <p> </p> <p> </p> <p>                   In <em>casu,</em> the court <em>a quo</em> did not allude to any misdirection in the exercise of the discretion in deciding penalties for each count and the overall penalty. There was therefore no justification for not imposing a penalty in respect of the count whose conviction the court <em>a quo</em> upheld.</p> <ol> <li><strong>Whether or not the court <em>a quo </em>misdirected itself by failing to find that direct evidence had been led establishing the respondent's liability for "uttering" a false document and his involvement with the press.</strong></li> </ol> <p> </p> <p>             A perusal of the record of proceedings shows a failure to appreciate the offence of uttering a false document. The offence of uttering was well defined in <em>The Virginia Law Register</em> Vol. 8, No. 5 (Sep., 1902) at page 322 in the following terms;</p> <p>"Uttering is the passing, offering, or exhibiting, with guilty knowledge and fraudulent intent, a false instrument, which, if genuine, would be valid in law, and apparently the basis of some liability."</p> <p> </p> <p>         A thread that runs through the respondent’s defence on this aspect was that the appellant failed to prove that he had written the document, however, the charge against him was that of uttering a false document and not writing it. Uttering occurs when a false document is made available to a third party for consumption. It does not require that one must be the writer of the document. In <em>casu,</em> the document was present and the respondent and his colleagues were speaking to that document in their address to fellow workers in a bid to get them to sign it. As such, his argument is misplaced.</p> <p> </p> <p>       It may also be noted that the offence in question was intricately connected with the addressing of the meetings without following due process. The document in question was the subject of such meetings. The Council made findings to the effect that the respondent had addressed the meetings together with fellow Trade Union leaders. The agenda of the meetings was to present the petition and urge employees to sign it. That petition was brought by the respondent and his colleagues. Council also made a finding that the contents of the petition were false and the respondent as a Member of Trustees knew that the consequences of the dissolution of the trust were not as they were portraying to the employees.</p> <p> </p> <p> </p> <p>       A careful perusal of the record of proceedings shows that such findings are not contrary to the evidence adduced. For instance, it is evident that the respondent was evasive about the capacity and role in which he attended and addressed the employees. His responses were vacillating between him acting as a trade union official and as a Delta employee. In the process he contradicted himself on the role he played in presenting the petition to fellow employees. He, however, did not deny that the agenda or purpose of calling for and addressing the meetings was to urge employees to sign the offending petition. He equally did not deny associating himself with fellow trade union officials who were in his company during these meetings. It is also clear from the record and findings by Council that the respondent did not categorically deny that as a member of the Board of Trustees he was aware that the information they were peddling in the petition was misleading.</p> <p>         </p> <p>       It may also be noted that the findings of fact by the Council were not seriously challenged by the respondent at the hearing of the appeal. It is settled that an appellate court will not readily interfere with findings of fact made by a lower tribunal.</p> <p> </p> <p>       The law is settled that such findings can only be interfered with where the conclusions reached by the lower tribunal are contrary to the evidence presented before it. This was reiterated in <em>TM Supermarkets v Mangwiro</em> 2004 (1) ZLR 186 (S), at p 189D-E as follows:</p> <p>“I am also persuaded by the contention that the court <em>a quo</em> in this particular respect misinterpreted the evidence placed before it. This Court has held, in <em>Reserve Bank of Zimbabwe v Corrine Granger supra</em> that such a circumstance amounts to a misdirection in law. At p 6 of that judgment, MUCHECHETERE JA stated as follows;</p> <p>‘And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.’”</p> <p>            </p> <p>       The above authority is apposite<em> to the facts of this matter</em>. A careful perusal of the record of proceedings tends to support the Council’s conclusion on the charges. It is clear that the respondent presented to fellow employees a petition whose contents were not true. He together with those in his company urged the employees to sign the petition. Thus the offence of uttering was proved.</p> <p> </p> <p>       The finding on the third charge of misconduct was also amply supported by the evidence adduced. The article in question specified the respondent in clear terms. Whilst the respondent made frantic efforts to distance himself from the report by stating that it was historical and not current, the report contains aspects showing actions that were current. After giving a historical progression of the issue, the report proceeded to state, <em>inter</em> <em>alia</em>, that, “The President of the Brewing and Distilling Workers’ Union and former Delta Corporation Workers’ Committee leader, John Shumba, said he was summoned by the Zimbabwe Anti-Corruption Commission (ZACC), which sought to understand concerns of the aggrieved pensioners and how the contentious pension fund was being administered, a decade after it was established.”</p> <p> </p> <p>       The respondent was quoted saying that he was summoned by ZACC Commissioners who wanted to understand if the fund was properly administered and what happened to its proceeds, he was yet to meet them again to complain about the management of the fund and implored ZACC to act accordingly and unearth corruption. The article also quoted the respondent saying that the government’s current fight against corruption should also be extended to private companies whilst safeguarding the interests of workers. This article is clearly specific as to who it ascribes the information to, thus it cannot be referring to interviews of some other people but that of the respondent.</p> <p> </p> <p>       Further, after being asked whether or not he denied talking to the reporter, the respondent’s response was that he had only made a query with the newspaper and had told the executives about it three days before the article came out. Thereafter, he alleged that he went to the newspaper where he met the reporter who was a son of a retiree. That reporter indicated to him that his father complained about the Trust all the time to him. The response given by the respondent was self-trapping in that if he had not given any interview, how could he have known about the article which was published three days after he had been to the newspaper? It appears to have been an attempt to put a lid to the story on reflection. Equally, the story that the reporter was a son to a retiree who always complained was proved to be untrue when the father of the reporter, in his evidence, denied any knowledge about this issue or even complaining about the Trust to his son. This left the respondent’s defence without any leg to stand on. The finding of the Council that the respondent was clearly guilty of failure to comply with the appellant’s communication policy which conduct was inconsistent with the terms of his contract of employment, cannot be faulted in the circumstances. It was not shown before the court <em>a quo</em>, and the court <em>a quo</em> had no basis for finding so, that the finding of the trial tribunal was grossly unreasonable as to warrant interference on appeal.</p> <p> </p> <p>                    It is the appellant's contention that the actions of the respondent amounted to a repudiation of his employment contract and were sufficiently serious to entitle the appellant to exercise its right of dismissal as an employer.</p> <p> </p> <p>                   The essence of the appellant's submission was canvassed in the case of <em>Celsys Limited v Ndeleziwa</em> 2015 (2) ZLR 62 (S) at p 65F, wherein it was stated that:</p> <p>“The law is settled that in circumstances where an employer takes a serious view of an employee’s misconduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question. The question that then arises, on the basis of the law and authorities on this matter, is whether the appellant judiciously exercised its discretion in deciding on, and imposing, the penalty of dismissal. It is only upon a negative answer to this question, that an appeal court would be justified in interfering with such decision.” (Emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>         In <em>Chidembo v Bindura Nickel Corporation Ltd</em> 2015 (2) ZLR 25 (S) at p 29E, it was aptly stated that:</p> <p>“…an act of misconduct committed by a worker outside the workplace, and in his – also work related – capacity as a workers’ committee member, is unlawful as long as it impacts directly on the employer’s private interests and in addition, constitutes a violation of the employer’s Code of Conduct.” (Emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>         In <em>ZB Bank Limited v Tirivanhu Marimo</em> SC 21/20 at p 8 GWAUNZA DCJ reiterated the point in stating that:</p> <p>“The right to champion workers’ rights is, in my view, not exercised in a vacuum, as it were, but should be exercised within the confines of the law as dictated, in this case, by the relevant code of conduct. This would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representation, is maintained. It falls to reason therefore that the respondent would not be able to hide behind his position as the chairperson of the workers’ committee should the conduct alleged against him be proved.”</p> <p> </p> <p> </p> <p>         The court <em>a quo</em> misdirected itself when it held that the evidence on the three charges leveled against the respondent was tenuous. The respondent was not being held accountable for all the employees, rather he had to be accountable for his own actions whereby he failed to follow standard procedures at his workplace and in the process committed the acts of misconduct in question</p> <p> </p> <p> </p> <p>       From the foregoing, it is evident that the respondent disregarded appellant’s code of conduct thus he was guilty of the allegations levelled against him in respect of all the charges against him. He violated the appellant’s code of conduct through his unscrupulous actions, therefore, the employer properly exercised its discretion in dismissing him from employment.</p> <p> </p> <p>                   <strong>Disposition.</strong></p> <p> </p> <p>                   Accordingly I find that the appeal has merit and ought to succeed.</p> <p> </p> <p>                   In the result, it is ordered as follows:-</p> <p> </p> <ol> <li>The appeal be and is hereby allowed with costs.  </li> <li>The judgment of the court <em>a quo</em> is hereby set  </li> </ol> <p>aside and substituted with the following:-</p> <p> </p> <p>“(a)The appeal is dismissed with costs</p> <p>(b)The respondent shall stand dismissed from his employment with effect   </p> <p>                                    from 19 April 2018 the date of his initial dismissal.”</p> <p> </p> <p> </p> <p>                   <strong>BHUNU JA:</strong>                                           I agree</p> <p> </p> <p> </p> <p>                   <strong>MATHONSI JA:</strong>                                    I agree</p> <p> </p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans, </em>appellant’s legal practitioners</p> <p><em>Mbidzo, Muchadehama &amp; Makoni</em>, respondent's legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/167/2020-zwsc-167.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44311">2020-zwsc-167.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/167/2020-zwsc-167.pdf" type="application/pdf; length=475998">2020-zwsc-167.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lawful-dismissal">Lawful dismissal</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/35">Chidembo v Bindura Nickel Corporation Ltd (SC 100/13) [2015] ZWSC 35 (01 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/21">ZB Bank Limited v Marimo (SC 21-20, Civil Appeal No. SC 976/17) [2020] ZWSC 21 (13 February 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 06 Jan 2021 09:25:07 +0000 Sandra 9961 at https://old.zimlii.org Ncube v Fidelity Printers and Refineries (Private) Limited (SC 62/20, Civil Appeal No. SCB 38/19) [2020] ZWSC 62 (01 June 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/62 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE:</strong><strong>        (53)</strong></p> <p> </p> <p><strong>THANDO     NCUBE</strong></p> <p><strong>v</strong></p> <p><strong>FIDELITY     PRINTERS     AND     REFINERIES     (PRIVATE) LIMITED</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA</strong></p> <p><strong>BULAWAYO: FEBRUARY 25 2020 &amp; JUNE 1 2020</strong></p> <p> </p> <p> </p> <p><em>K Phulu, </em>for applicant</p> <p><em>T M Matawu</em> with <em>C Manungo, </em>for respondent</p> <p> </p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p><strong>MAKARAU JA</strong>:      This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014 dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment. Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.</p> <p> </p> <p>The facts of this application are common cause.</p> <p> </p> <p>The applicant was employed as a senior security officer by the respondent.  Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment.  It was a condition of the Reserve Bank that for applicant and others similarly placed to access the money owed, they had to make an application showing good cause.  A death or illness in the family could constitute such good cause.  In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.</p> <p> </p> <p>It is the applicant’s intention to appeal against the decision of the Labour Court. I cite here in full the grounds of the intended appeal. They are framed as follows:</p> <ol> <li>The court <em>a quo</em> erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (<em>sic</em>).</li> <li>The penalty imposed on the appellant was a nullity in that there was no compliance with the respondent’s code of conduct requiring that the Worker’s Committee be consulted before such a penalty is imposed.</li> <li>Alternatively, the court <em>a quo</em> erred on a point of law in that it was at large to interfere with the penalty of dismissal because there was no compliance with the respondent’s code of conduct requiring that the Workers’ Committee be consulted before a penalty of dismissal is imposed.</li> <li>Alternatively, the court <em>a quo</em> misdirected itself on a point of law in refusing to interfere with the penalty of dismissal upon a finding that the circumstances of the matter merited a less severe penalty.</li> </ol> <p> </p> <p>The application for leave to appeal was opposed on the basis that the intended grounds of appeal did not disclose any basis upon which the refusal by the Labour Court to interfere with the penalty imposed by the employer could be challenged or could be regarded as an error at law.  Accordingly, and in short, it was argued that the appeal had no prospects of success.</p> <p> </p> <p>At the hearing of the application, without abandoning the other grounds, counsel for the applicant restricted his argument to the last ground of appeal as one that might enjoy some prospects of success on appeal.</p> <p> </p> <p>I pause to note in passing that counsel for the applicant was wise in not expending his energies on the first three grounds of the intended appeal.</p> <p> </p> <p>The first ground is ill conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.</p> <p> The second and third grounds of appeal are interrelated not only because they are raised in the alternative but also because they seek to raise the same issue. This is in relation to the irregularity allegedly attendant upon the imposition of the penalty of dismissal. It was alleged by the applicant and denied by the respondent, that the worker’s committee was not consulted before the penalty of dismissal was imposed.  For the purposes of this application, it is not necessary that I determine whether the workers committee was consulted or not before the applicant was dismissed. This is so because not only was this an issue that should have been properly brought in an application for review before the Labour Court, but more importantly, it was never brought to the attention of the court which as a result, did not make any findings on it. Therefore, the court could not have erred as alleged or at all in respect of an issue that was not before it and one that it did not determine.</p> <p> </p> <p>I now turn to the argument on the fourth ground.</p> <p> </p> <p>Accepting as the correct position at law that an appeal court should be slow in interfering with findings of fact and the exercise of discretionary power by a lower court, counsel for the applicant submitted that this position does not hold for the Labour Court when exercising its appellate jurisdiction. This is so, he argued, because the Labour Court is not an appellate court <em>strictu sensu</em> in that the enabling Act empowers it to hear matters brought before it on appeal, <em>de novo</em>. It is therefore not confined to determining the matter on the basis of the record before it but can lawfully act as a court of first instance. Further, he submitted that whilst the Labour Court has appellate jurisdiction, the Labour Act [<em>Chapter 28.01</em>], that grants it this jurisdiction also enjoins the court to infuse the equities of the dispute into the resolution of all matters brought before it, appeals included.</p> <p> </p> <p>The argument by Advocate <em>Phulu</em> has no prospects of success on appeal. This is so because the Supreme Court, has in several cases pronounced itself on the law regarding the exercise of appellate jurisdiction by the Labour Court in matters relating to penalties. This it has done notwithstanding the provisions of 2 of the Labour Act which the applicant sought to rely on.  (See <em>Mashonaland Turf Club v George Mutangadura</em> 2012 (1) ZLR 183 (S); <em>Innscor Africa (Private) Limited v L Chimoto S</em>C 6/12; <em>Ajasi Wala v Freda Rebecca Mine</em> SC 56/2016 and <em>Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another</em>  SC73/17.</p> <p> </p> <p>     BHUNU JA writing for the court in <em>Tamanikwa and Another v Zimbabwe Manpower Development Fund</em> <em>(supra</em>) had this to say:</p> <p>“It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer’s discretion to terminate his employment contract. Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court <em>a quo</em> or anyone else for that matter should interfere with the exercise of that discretion. In the absence of any cogent reason for interfering with the employer’s discretion, the respondent’s fate was sealed.”</p> <p> </p> <p> </p> <p>It was not the applicant’s argument that he will seek to have this Court reconsider its decisions in the cases cited above.</p> <p> </p> <p>In an application for leave to appeal, the judge considering the application acts as a gate-keeper. The role of the judge is to keep out appeals with no prospects of success. It presents itself very clearly to me that an application that raises a point that has already been determined by this Court and has been determined against the very point that the applicant seeks to argue on appeal, is one such application that should not be allowed to pass, unless the applicant shows that it intends to request the Supreme Court to reverse its earlier decision and has some prospects of success in that regard. The applicant has not indicated an intention to request this court to reverse itself.</p> <p> </p> <p>On the basis of the foregoing, this application cannot succeed.</p> <p> </p> <p>Regarding costs, I see no justification for these not to follow the cause.</p> <p> </p> <p>In the result, I make the following order:</p> <p>The application is dismissed with costs.</p> <p> </p> <p>           </p> <p><em>Calderwood, Bryce Hendrie &amp;Partners</em>, applicant’s legal practitioners;</p> <p><em>Coghlan, Welsh &amp; Guest</em>, respondent’s legal practitioners.</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/62/2020-zwsc-62.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34565">2020-zwsc-62.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/62/2020-zwsc-62.pdf" type="application/pdf; length=216428">2020-zwsc-62.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-authority">Administrative authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2012/5">Mashonaland Turf Club v Mutangadura (SC 247/10) [2012] ZWSC 5 (05 February 2012);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/56">Wala v Freda Rebecca Mine (SC 56/2016 CIVIL APPEAL NO. SC 699/15) [2016] ZWSC 56 (23 May 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 19 Aug 2020 11:37:58 +0000 Sandra 9837 at https://old.zimlii.org Gudza v City of Harare (SC 17-20, Civil Appeal No. SC 235/13) [2020] ZWSC 17 (10 February 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/17 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/17/2020-zwsc-17.pdf" type="application/pdf; length=189329">2020-zwsc-17.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1962/1">Interpretation Act [Chapter 1:01]</a></div></div></div> Fri, 19 Jun 2020 11:34:36 +0000 Sandra 9693 at https://old.zimlii.org Nhari v Zimbabwe Allied Banking Group Limited (SC 6-20, Civil Appeal SC 192/11) [2020] ZWSC 6 (02 February 2017); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/6 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2017/6/2020-zwsc-6.pdf" type="application/pdf; length=234720">2020-zwsc-6.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/node/6899">Mupandasekwa v Green Motor Services (Pvt) Ltd. (Civil Appeal No. SC 298/11) [2015] ZWSC 30 (25 June 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2005/101">Standard Chartered Bank Zimbabwe Ltd. v Chapuka (361/03) ((361/03)) [2005] ZWSC 101 (26 January 2005);</a></div></div></div> Wed, 17 Jun 2020 13:41:42 +0000 Sandra 9680 at https://old.zimlii.org Zimbabwe Mining Development Corporation v Hambakachere (SC 2-20, Civil Appeal SC 486/15) [2020] ZWSC 2 (23 March 2017); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/2-1 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2017/2/2020-zwsc-2.pdf" type="application/pdf; length=447365">2020-zwsc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lawful-dismissal">Lawful dismissal</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2002/41">Maadza v Air Zimbabwe (Pvt) Ltd. (79/01) ((Pvt)) [2002] ZWSC 41 (05 June 2002);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/65">Moyo v S (Criminal Appeal No. SC 242/13) [2013] ZWSC 65 (25 November 2013);</a></div></div></div> Wed, 17 Jun 2020 12:32:59 +0000 Sandra 9678 at https://old.zimlii.org Hwange Colliery Company Limited v Ndlovu & Anor (SC 46-20, Civil Appeal No. SC 45/18) [2020] ZWSC 46 (02 August 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/46-0 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/46/2020-zwsc-46.pdf" type="application/pdf; length=337955">2020-zwsc-46.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/strike-action-employee">strike action by employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/55">Zimbabwe Banking Corp. Ltd. v Mbalaka (Civil Appeal No. SC 263/07) [2015] ZWSC 55 (05 August 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2012/5">Mashonaland Turf Club v Mutangadura (SC 247/10) [2012] ZWSC 5 (05 February 2012);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/2">Zimplats (Pvt) Ltd. v Godide (SC 2/16 Civil Court No. SC 174/12) [2016] ZWSC 2 (30 May 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/22">Browne v Tanganda Tea Co. (SC 96/14) [2016] ZWCC 22 (24 May 2016);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2011/86">Kufa and Another v President of the Republic of Zimbabwe N.O and Others (HC 3045/10) [2011] ZWHHC 86 (05 April 2011);</a></div></div></div> Tue, 16 Jun 2020 09:43:19 +0000 Sandra 9674 at https://old.zimlii.org Javangwe v Vortigen Investments Private Limited t/a CPL (SC 49-20, Civil Appeal No. SC 346/18) [2020] ZWSC 49 (16 March 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/49 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/49/2020-zwsc-49.pdf" type="application/pdf; length=235467">2020-zwsc-49.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/labour-act-chapter-2801">Labour Act [Chapter 28:01]</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Mon, 15 Jun 2020 12:48:16 +0000 Sandra 9671 at https://old.zimlii.org ZB Bank Limited v Marimo (SC 21-20, Civil Appeal No. SC 976/17) [2020] ZWSC 21 (13 February 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/21 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/21/2020-zwsc-21.pdf" type="application/pdf; length=304851">2020-zwsc-21.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/confidential-information">Confidential information</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal-0">Dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/code-conduct-effect-employees">code of conduct in effect for employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/56">Wala v Freda Rebecca Mine (SC 56/2016 CIVIL APPEAL NO. SC 699/15) [2016] ZWSC 56 (23 May 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Tue, 10 Mar 2020 08:12:21 +0000 Sandra 9538 at https://old.zimlii.org Mataruse v E. Mundenda N.O & 2 Others (HH 457-19, HC 2385/17) [2019] ZWHHC 457 (03 July 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/457 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ANDREW MATARUSE</p> <p>versus</p> <p>E. MUNDENDA N.O</p> <p>and</p> <p>PARIRENYATWA GROUP OF HOSPITALS</p> <p>and</p> <p>MINISTER OF HEALTH AND CHILD CARE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>NDEWERE J</p> <p>HARARE,24 October 2017 &amp; 3 July 2019</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>T. Mpofu</em>, for the applicant</p> <p><em>T. Tandi</em>, for the respondent</p> <p> </p> <p>            NDEWERE J: On 20 March, 2017, the applicant filed a court application for review. The grounds of review on page 1 to 2 of the application were as follows:</p> <ol> <li>The decision by the respondents that the applicant is double dipping due to his employment by the second respondent and the University of Zimbabwe and therefore should pay back the remuneration paid to him by the second respondent is grossly irregular. It is illegal and irrational.</li> <li>The instruction by the first respondent that the applicant must resign retrospectively with effect from 19 September, 2016 is unlawful and amounts to constructive dismissal.</li> <li>The unilateral decision by the respondents to cease applicant’s salary is unlawful.</li> </ol> <p>The relief which the applicant sought was the following;</p> <p>“1. The decision of the first respondent communicated to the applicant through a memorandum dated 7 February, 2017, be and is hereby set aside.</p> <p> </p> <p>2. The decision of the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</p> <p> </p> <p>3. The first and second respondent, jointly and severally to pay costs of suit.”</p> <p> </p> <p>The applicant filed a founding affidavit from page 4 of the court application.</p> <p>The first and second respondents filed an opposing affidavit on 3 April, 2017. They said the application did not contain grounds of review. They also said the High Court had no jurisdiction as this was a labour related dispute. In addition the first respondent objected to being cited as a respondent and asked that he be removed from the matter as a party.</p> <p>The respondents further said since the second respondent was a statutory body and capable of suing and being sued in its own name, there was no need to cite the third and fourth respondents as parties in the matter since the second respondents operations were independent of them.</p> <p>On the merits of the application, the respondents confirmed that what applicant did was an act of misconduct. They confirmed that they had Disciplinary Procedures for acts of misconduct. They however said instituting those procedures was their prerogative as employer and in this case they proceeded outside the Disciplinary Procedures and invited the applicant to resign.</p> <p>They also said the applicant should have exhausted domestic remedies and appealed against their decision to the Board instead of approaching the High Court. They prayed for the dismissal of the application with punitive costs.</p> <p>After going through the submissions by both the applicant and the respondents the court made the observations which follow below.</p> <p>The applicants filed a court application for review. After providing the grounds of review on pages 1 to page 2 of the application, they attached a founding affidavit by the applicant from p 4 to 11. On page 7 of the Founding Affidavit, in paragraph 9, the applicant attacked the procedure adopted by the respondents. He repeated this attack in paragraph 10, through the use of the word “unilaterally” in reference to the cessation of his salary. The use of that word shows that the procedure adopted was being criticised in that the applicant was not afforded the right to be heard. In paragraph 12, the use of the phrase “gross irregularity” and the use of “unfounded allegations” in paragraph 13, is a criticism of the procedure adopted. In paragraphs 17, and 18 the failure to follow disciplinary procedures is raised in specific terms.</p> <p>After the founding affidavit, the relief is sought on pages 13 to 14 as follows:</p> <p>“1. The decision of the first respondent communicated to the applicant through a memorandum dated 7 February, 2017, be and is hereby set aside.</p> <p> </p> <p>2. The decision of the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</p> <p> </p> <p>3. The first and second respondent, jointly and severally to pay costs of suit.”</p> <p> </p> <p>            While the applicant must be criticised for not mentioning the specific procedural irregularities in his grounds of review, the court’s view is that since he mentioned them in his founding affidavit, his failure to specify them in the grounds of review is not fatal to his application. The respondents were informed of the basis of the review in the founding affidavit before the Draft Order was attached. So they knew what review case they needed to respond to. They were not prejudiced. Therefore whilst the respondents were correct to criticise the applicant for the failure to “state shortly and clearly” the grounds upon which the applicant sought to have the proceedings set aside or corrected in terms of rule 257, his failure to do so is not fatal because he provided the procedural irregularities in his founding affidavit in the paragraphs alluded to above. The case of <em>Pasalk and Another</em> v <em>Kuzora and Others</em> SC 97/02 referred to by the respondents is a case in point.</p> <p>            At page 94, the court said;</p> <p>            “it is not for the respondent, or the court, to study the affidavits carefully in order to          determine what case the respondent is to answer. The grounds of review must be clearly and shortly stated, and in my view, this must be in the court application itself or, at the commencement of the founding affidavit”.</p> <p>            The above case shows that it is permissible to have the grounds of review in the founding affidavit, although having them on the face of the application itself is more appropriate. The preliminary point of having no grounds of review is therefore dismissed.</p> <p>            On the issue of jurisdiction of the High Court, the respondents are incorrect. Section 171 of the Constitution of Zimbabwe No. 20 of 2013 provides as follows:</p> <p>            “(1)      The High Court—</p> <ul> <li>Has original jurisdiction over all civil and criminal matters throughoutZimbabwe;</li> </ul> <p> </p> <p>Section 13 of the High Court Act provides as follows:</p> <p>“13       Original civil jurisdiction</p> <p>Subject to this Act and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe”.</p> <p> </p> <p>            Section 26 of the High Court Act also provides as follows:</p> <p>            “Subject to this Act and any other law, the High Court shall have power, jurisdiction        and       authority to review all proceedings and decisions of all inferior courts of justice,        tribunals           and administrative authorities within Zimbabwe”.</p> <p> </p> <p>The respondents are one such administrative authority.</p> <p> </p> <p>            In addition, as stated by the applicant in his Answering Affidavit, the applicant is not covered by the Labour Act but by the Health Service Act [<em>Chapter 15:16</em>] and the Health Service Regulations of 2006. The respondents did not dispute this assertion in their submissions. The preliminary point about lack of jurisdiction is therefore dismissed.</p> <p>            The 3rd preliminary point raised by the respondents was that first respondent should not have been cited as a party and should be struck out. The court found no merit in that point. It is first respondent who wrote the Memorandum of 7 February 2017 which appears on p 12 of the application. He wrote it in his capacity as Director of Operations. That is why the letters “N.O” appear after the citation of his name to indicate that he is being proceeded against in his official capacity as Director of Operations and not in his personal capacity. In the Memorandum of 7 February 2017, he never cited the Board or referred to it. He wrote;</p> <p>            “It has come to my attention …”</p> <p>            He did not say “it has come to the Board’s attention,” or . “… to our attention.”   All this shows that his citation as a party to the proceedings was proper since the Memorandum of 7 February 2017 is what started the case between the applicant and the respondents. First respondent’s objection is therefore dismissed.</p> <p>            However, there was no need to cite the third and fourth respondents since second respondent is a statutory body clothed with a legal personality. The court noted, however, that no specific relief was sought against the third and fourth respondents. Furthermore, in view of the provisions of r 87 of the High Court Rules, the citation of third and fourth respondents is not fatal to the application.</p> <p>            Since the first and second respondents have objected to the inclusion of third and fourth respondents and because it appears that their inclusion was not necessary since the second respondent is an independent statutory body, the court will invoke r 87 (2) (a) of the High Court Rules and order the third and fourth respondents to cease to be parties in this matter and shall accordingly strike them off as parties.</p> <p>            As regards the merits of the matter, the court is of the view that the respondents had an arguable case against the applicant. The applicant said he was appointed on an indefinite contract of employment by the second respondent. Then on 20 September 2016, he said in his own words he was appointed “a full time lecturer” in the Medical School at the University of Zimbabwe. He did not indicate when he was going to be available to perform his duties to the second respondent, now that he was “full time” lecturing. It would have been a different case if he had said he was going to be part time.</p> <p>            The applicant said his duties to the two employers were not in conflict with each other. That cannot be correct in relation to time. If  he was lecturing at the Medical School, during that lecture period, if summoned by the Stroke Unit and Neurology Clinic would he be able to respond there and then and abandon his lecture in the middle? The probability is that he would not be available for the clinic until after his lecture was finished. So there was definitely a conflict in relation to his time. It was not possible for him to be available for both jobs at the same time.</p> <p>            However, after identifying the problem of a conflicting appointment of the applicant, the respondents proceeded in an irregular manner. They asked the applicant to resign from 19 September 2016, and asked him to pay back what they had paid him from 20 September 2016. In actual fact, they were saying from 20 September 2016, you ceased to be our employee, so resign from that date and pay us back what we paid you. First respondent intimated that this position had been discussed and then applicant requested that it be put in writing. After putting it in writing, the respondent should have waited for the applicant to accept the arrangement. If he had accepted the arrangement, that would have been the end of the matter. The moment he did not accept it, disciplinary procedures should have been invoked.</p> <p>            The court noted that the respondents confirmed that the applicant committed an act of misconduct. They accepted that they had appropriate disciplinary procedures. They admitted that they proceeded outside the disciplinary processes; saying instituting them was their prerogative. Indeed, it was their prerogative, but if the procedures were not being instituted, applicant’s consent had to be obtained. If it was not obtained, the employer could not unilaterally withdraw the benefits of an employee while that employee was still working except in terms of the disciplinary procedures. If consent was not obtained, then following the disciplinary procedures became imperative. It was no longer a matter of choice. That is because the disciplinary procedures are the process which gives an employee the opportunity to be heard in his own defence.</p> <p>            The failure by the respondents to invoke the disciplinary procedures when the applicant did not resign amounted to gross irregularity.</p> <p>            The issue of exhaustion of domestic remedies did not arise at all.</p> <p>            The respondents referred to s 17 of the Health Services Act [<em>Chapter 15:16</em>]. That section allows any person aggrieved by a verdict reached or punishment given, to appeal to the Hospital Management body. A verdict is given after a disciplinary hearing. So s 17 which the respondent wanted to rely on only applied where the disciplinary process had been followed. Section 17 (4) provides as follows;</p> <p>“Any person who is aggrieved by a verdict reached or punishment imposed following misconduct proceedings conducted in terms of subsection (1) or (2) may appeal to the Board in the form and manner prescribed in service regulations.” (The underlining is my own).</p> <p> </p> <p>So for s 17 to apply, there had to be misconduct proceedings.</p> <p> </p> <p>The application for review therefore has merit and must succeed.</p> <p>The relief sought by the applicant was however, incomplete. His draft order requested that the respondents’ decisions be set aside and he ended there; yet there was need to correct the procedural irregularity committed by the respondents. That is the purpose behind reviewing proceedings which are irregular. The court will therefore set aside the respondents’ decisions and remit the matter back to the second respondent for it to institute disciplinary procedures against the applicant.         </p> <p>            It is therefore ordered that:</p> <ol> <li>The decision of the first respondent communicated to the applicant through the Memorandum of 7 February 2017 be and is hereby set aside.</li> <li>The decision by the respondents to unilaterally cease applicant’s salary be and is hereby set aside.</li> <li>The matter be and is hereby referred back to the second respondent for it to institute disciplinary proceedings against the applicant for the alleged misconduct.</li> <li>The first and second respondents, jointly and severally, to pay the costs of suit.</li> </ol> <p> </p> <p> </p> <p><em>Rubaya and Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Kantor and Immerman</em>, 1st &amp; 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/457/2019-zwhhc-457.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23836">2019-zwhhc-457.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/457/2019-zwhhc-457.pdf" type="application/pdf; length=128942">2019-zwhhc-457.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/code-conduct">Code of conduct</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/remuneration">Remuneration</a></li></ul></span> Tue, 16 Jul 2019 09:24:04 +0000 admin 9349 at https://old.zimlii.org Madzima v Marange Resources (Private) Limited (SC 12/19, Civil Appeal No. 51/16) [2019] ZWSC 12 (22 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/12 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>              (21)</strong></p> <p> </p> <p>    </p> <p><strong>ALPHA    MADZIMA </strong></p> <p><strong>v</strong></p> <p><strong>MARANGE     RESOURCES     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: NOVEMBER 4, 2016 &amp; FEBRUARY 22, 2019</strong></p> <p> </p> <p> </p> <p><em>L Uriri</em>, for the appellant</p> <p><em>I Ndudzo</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA: </strong>This is an appeal against the whole judgement of the Labour Court, Harare, handed down on 6 March 2015.</p> <p> </p> <p><strong>BACKGROUND</strong></p> <p>The appellant was employed by the respondent as a Finance Manager in the year 2010. When the events that gave rise to this matter occurred in October 2012, he was the Acting Chief Finance Officer.</p> <p> </p> <p>On 3 October 2012, the appellant received a phone call which was later followed up by an email from Tetrad Investment Bank Limited (Tetrad). In both instances a request was made of him to write a letter of undertaking. The letter was to be written on the respondent’s letter head. The email reads:</p> <p>“<strong>DD Mining letter of undertaking …</strong></p> <p>Above supplier holds an order from yourselves which we have financed. We would be grateful if you could sign the attached letter of undertaking to pay to Tetrad on your letterhead.”</p> <p> </p> <p>The email was written by one Toddy Muchongwe, General Manager Corporate Banking at Tetrad and was addressed to the appellant. The body of the draft letter of undertaking that was attached to the email reads:</p> <p>“<strong>Undertaking to direct all payments to Tetrad account number ….</strong></p> <p>Acting under instructions received from … and pursuant to an ongoing contract/ arrangement between ourselves and … where we regularly place orders of varying quantities of … which we receive on account, we hereby irrevocably and unequivocally undertake to direct all payments as they fall due to the account held in your books for all goods received in good order and accepted by ourselves.</p> <p>The details of the account to which all payments will be directed are as follows:</p> <p>Account Name                        :</p> <p>            Account Number                    :</p> <p>            Branch                                     :</p> <p>We also undertake that there will not be a variation to the payment account unless we have received written instructions from Tetrad Investment Bank authorising such a variation.</p> <p>Should any circumstances arise to prevent or unduly delay the transfer of any funds due for payment into the said account necessary advices shall be given to the bank and in the absence of such advices the bank shall be entitled to follow up and obtain any confirmations from ourselves as may be deemed necessary.</p> <p>This letter is not transferable and will remain valid for as long as there are outstanding payments for goods received from … or unless otherwise cancelled by the bank and written confirmation has been received.”</p> <p> </p> <p>Also attached to the email, together with the draft letter of undertaking was a purchase order purporting to emanate from the respondent company to DD Mining and General Suppliers (Pvt) Ltd for an item described as “CE-125 PERIPHERAL PUMP” with a grand total value of “125 625.02”</p> <p> </p> <p>The appellant allegedly consulted his immediate superior, one Simbisayi Wilfred Munemo, who gave him authority and the appellant proceeded to put the Tetrad draft on the respondent’s letter head and he signed it. The appellant filled in the blanks in the draft letter of undertaking. Having done this the letter now reflected that the writer was “acting under instructions received from DD Mining General Suppliers and pursuant to an ongoing contract/ arrangement between ourselves and DD Mining and General Supplies.” He filled in the account name as “DD Mining and General Supplies.” He also filled in the account number and the branch name. He also filled in the blank in the last paragraph of the draft letter with the name “DD Mining and General Supplies” The letter was sent to Tetrad. Thereafter, Tetrad phoned the appellant’s superior to confirm that the letter of undertaking was in order.</p> <p> </p> <p>In September 2013 the appellant and his immediate superior were called by the police to give statements in relation to an alleged fraud relating to the financing arrangement of DD Mining and General Supplies by Tetrad. The immediate superior apparently stated that he had consulted with the Chief Executive Officer who saw nothing amiss about the appellant’s conduct in the letter of undertaking.</p> <p> </p> <p>In January 2014 the respondent company’s auditor was called by the Police in connection with pending fraud cases relating to the respondent. At the meeting the auditor was briefed about the letter of undertaking that was written to Tetrad. The auditor briefed the then Acting Chief Executive Officer who then raised two charges of misconduct against the appellant. </p> <p> </p> <p>The appellant was charged by the Acting Chief Executive officer with fraud and also with acting in a manner that is inconsistent with the fulfilment of express or implied conditions of his contract of employment as defined in sections 4(d) and 4(a) respectively, of the Labour (National Employment Code of Conduct) Regulations, 2006, SI 15 of 2006. The letter of suspension stated <em>inter alia,</em> that</p> <p>“The Company (Marange Resources Private Limited) (sic) became aware in January 2014 that on 3 October 2012 you wrote and issued a letter of undertaking to Tetrad Investment Bank Limited on behalf of DD Mining and General Supplies. It is a common cause fact that you were fully aware that the basis upon which the letter of undertaking was made had nothing to do with Marange Resources (PVT) LTD. It is common cause and clearly known by you that the purchase order upon which you acted upon (sic) bears no resemblance to the Marange resources (PVT) LTD order book/form. In your position you clearly know that Marange Resources (PVT) LTD does not trade as Marange Diamond Fields but you proceeded to commit the company to be tied to such an order and the associated transaction that occurred. It is further common cause fact that you were fully aware that at no time in the history of Marange Resources (PVT) LTD that DD Mining and General Supplies had conducted business with Marange Resources (PVT) LTD.”</p> <p> </p> <p> </p> <p>With specific reference to the charge preferred against the appellant in terms of s 4(a) (any act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment), the letter further stated:</p> <p>“… your position has a contractual and legal duty to act and conduct yourself honestly and solely in the interests of the Company. You wrote and issued a letter of undertaking that bound the Company to a financial transaction which had nothing to do with the Company. You breached the express and implied term of your contract of employment in relation to trust and integrity. You occupy a position of trust and your act and conduct in this matter was inconsistent with the above as you breached the trust bestowed upon you by the Company to manage and protect its interests. Your act and conduct in this matter has demonstrably lacked integrity to an extent of putting the company to serious risk, disrepute and irreparable damage.” </p> <p> </p> <p>The matter went before a Disciplinary Committee which found the appellant guilty of the latter charge, conduct inconsistent with express or implied provisions of the contract of employment. The appellant was consequently dismissed from employment. </p> <p> </p> <p>Dissatisfied with his dismissal, the Appellant referred the matter to a Labour Officer for conciliation in terms of s 8 of the Labour (National Employment Code) Regulations, 2006, S.I. 15/2006 (the National Code of Conduct). The matter was heard by a labour officer in terms of s 93 of the Labour Act.  Following unsuccessful conciliation, the matter was referred to arbitration in terms of s 98 of the Labour Act.</p> <p> </p> <p>The arbitrator agreed that an infraction had indeed been committed by the appellant and confirmed his conviction. He however set aside the penalty of dismissal and replaced it with a final written warning valid for 6 months and he reinstated the appellant. </p> <p> </p> <p>Disgruntled with the arbitral award, the respondent appealed to the Labour Court. Equally dissatisfied with the award, the appellant also filed a cross appeal on eight grounds. These grounds of appeal are not material to the determination of this appeal.</p> <p> </p> <p>The Labour Court upheld the main appeal and dismissed the cross appeal. The arbitral award was set aside and substituted with the following;</p> <p>“The penalty of dismissal of the respondent be and is hereby confirmed and the   reinstatement of the respondent be and is hereby set aside.”</p> <p> </p> <p><strong>THIS APPEAL</strong></p> <p>This is the finding that is the subject of this appeal. Two issues arise from the lengthy grounds of appeal relied on by the appellant. These are:</p> <ol> <li>Whether or not the Labour Court was correct in confirming the finding of guilty on the second charge preferred.</li> <li>Whether or not the Labour Court had a basis on which to interfere with the decision of the arbitrator on the issue of the appropriate sentence.</li> </ol> <p> </p> <p>I now deal with these questions <em>seriatim</em>.</p> <ol> <li><strong>Whether or not the Labour Court was correct in making a finding of guilty on the second charge preferred.</strong></li> </ol> <p>The appellant maintains that the finding by the disciplinary hearing that he is guilty of “any act or conduct inconsistent with the fulfilment of the express or implied conditions of one’s contract of employment” was erroneous as there was no evidence to justify such a finding. </p> <p> </p> <p>It is common cause that at the material time, the appellant was the Acting Chief Finance Officer of the respondent. Although the appellant’s contract of employment was not produced at any stage and is not part of the record, it is trite that all contracts of employment contain both express and implied provisions. Every contract of employment is hinged on a relationship of trust between the employer and the employee. This relationship of trust is an implied provision in any employment contract even if it may not be expressly stated. In signing a contract of employment, an employee undertakes to carry out the express and implied mandate of the employer. </p> <p> </p> <p>It is an essential principle in employer and employee relationships that an employee has a duty to safeguard the interests of the employer. In <em>casu,</em> the appellant’s position as the Acting Finance Officer imposed on him the duty to exercise due care and diligence. During the disciplinary hearing the appellant reportedly conceded and confirmed that it was his duty and role to advise the respondent company’s Finance Department.</p> <p>This Court has on a number of occasions pronounced on an employee’s conduct that is inconsistent with the express or implied conditions of the contract of employment. One such case is <em>Standard Chartered Bank Zimbabwe Limited v Michael Chapuka</em> SC 125/04 where the following is stated at page 7 of the judgement:</p> <p>“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee … (emphasis added)</p> <p>  </p> <p> </p> <p>The Appellant conceded that the letter that gave rise to the litigation between the parties was written at Tetrad’s bidding and initiative.  The contents of the letter were authored by Tetrad. The appellant was an employee of the respondent and not of Tetrad. The appellant’s conduct in writing the letter and signing it amounts to him acting in pursuance of the interests of a third party, which third party is not included in the employer-employee relationship that he had with the respondent. This is so because by appending his signature to the letter of undertaking, the appellant vouched for the truthfulness of the contents of the letter. He vouched for the correctness of the allegations in a letter that did not emanate from or benefit his employer. In addition, he did this without ascertaining the truth of the contents of the letter in circumstances where other departments of the respondent company would have been in a position to advise him accordingly.</p> <p> </p> <p>It is undisputed that the appellant did not verify the contents of the letter in question, in particular, that there was an ongoing contract between the respondent and DD Mining and General Supplies. Appending a signature to a letter that communicated what had not been verified by the appellant was not only negligent conduct on his part but it also exhibited a lack of the diligence that would be expected of an employee of his level and in fact, of every employee of whatever level. The best interests of an employer can only be achieved if employees diligently verify any undertaking that binds their employer. As was aptly stated in the Namibian case of <em>Helao Nafidi Town Council v Shivolo</em> [2016] NAHCMD [2016] at para 70:</p> <p>“The drift of Roman-Dutch and English authority is to the effect that the employer-employee relationship imposes a duty on the employee to act in the employer’s best interest. The employee has a duty not to work against the employer’s interests. <strong>The duty arises even though there is no express term in the contract of employment to that effect.</strong> As has been aptly stated in Lesotho Highlands Development Authority v Sole, the liability for breach of a fiduciary duty is not necessarily delictual or contractual but sui generis and will depend on the particular circumstances of each case. At the core is the principle that a person placed in a fiduciary duty will be in breach of his/her duty by failing to act bona fide in the interests of the employer.” (emphasis added)</p> <p> </p> <p> </p> <p>The question arises whether, despite the alleged assent by his superior, the appellant ought to be said to have not acted in the best interests of the employer when he signed the letter of undertaking without verifying its contents. The answer ought to be in the negative. By failing to verify the contents of the letter of undertaking before appending his signature, the appellant did not act in the interests of the employer. It was his signature that was to be appended on the letter and not that of his superior. There was therefore a duty on him to verify the contents that he signed for. In any event, it was not the appellant’s case that his superior verified the contents of the letter of undertaking.</p> <p> </p> <p>The fact that the appellant sought and obtained approval from his immediate superior did not take away from him the duty to verify information that had the effect of binding his employer. The immediate superior’s approval did not amount to verification of the content of the letter.</p> <p> </p> <p>The following excerpt from the Disciplinary Authority’s determination is apposite insofar as it reflects how it arrived at and justified the finding of guilty:</p> <p>“2. With respect to s 4 (a) the Respondent is a Senior Manager who acknowledges that he also has an advisory role to his Supervisors and he should have conducted himself honestly and diligently in the interest of the organisation:</p> <ol> <li>He ought to have verified that Marange Resources had an existing order and Contract with DD Mining,</li> <li>The letter of undertaking should have had Marange Resources References,</li> </ol> <p>The respondent merely printed a document without applying his mind to it</p> <ol> <li>The fact that Mr Munemo Knew about this transaction does not make it right, and it does not absolve Mr Munemo of answering charges if the company chooses to do so,</li> <li>The Respondent should take full responsibility for the letter of undertaking and its consequences. He cannot run away from his signature……… the act of the respondent is tantamount to gross negligence, in writing a letter of Undertaking on behalf of Marange Resources without verifying facts from other departments. In his evidence he failed to take Responsibility for what the letter was stating.”</li> </ol> <p> </p> <p> </p> <p> </p> <p>Viewed in the light of the above, the confirmations by the arbitrator and subsequently by the court <em>a quo</em> of the verdict of guilty by the Disciplinary Authority cannot be faulted.</p> <p> </p> <p>In the result, the appellant was therefore correctly found guilty of the misconduct of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. The court <em>a quo</em> thus correctly found that it could not interfere with the finding of guilty with which the appellant was aggrieved. It was incumbent upon the appellant to ensure the truth of what he was signing for and in this he failed.</p> <p> </p> <ol> <li><strong>Whether or not the court a <em>quo</em> had a basis to interfere with the decision of the arbitrator on sentence</strong></li> </ol> <p>It is settled in our law that an appellate court must be slow in interfering with the discretion exercised by a lower court. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the material for so doing.  See <em>Barros &amp; Anor v Chimphonda</em> 1999 [1] ZLR 58 [S] at 62F – 63A.</p> <p> </p> <p>The Labour Court sat as an appellate tribunal. The only basis on which it could have interfered with the decision of the arbitrator is if the arbitrator did not show a basis for interfering with the discretion to dismiss that was exercised by the employer. As stated in <em>Geza v ZFC</em> 1998 (1) ZLR 137 (SC), appeal courts should not lightly alter penalties of dismissal without showing that there was gross unreasonableness, <em>mala fide</em> or capriciousness.</p> <p> </p> <p>In considering the appropriate penalty to impose on the appellant the disciplinary authority stated <em>inter alia</em> that the conduct of that appellant went to the root of the contract of employment. Furthermore, that in terms of the law, once it is proved that the conduct complained of goes to the root of the contract of employment, the penalty to be imposed lies squarely at the disposal of the employer. The appellant’s plea for a written warning was found not to meet the justice of the case. On the strength of authorities of the Supreme Court cited in the Disciplinary Authority’s determination, the appellant was dismissed from employment. </p> <p> </p> <p>In considering whether the dismissal of the appellant was lawful the Arbitrator opined that as the appellant was a first offender, a correctional penalty was the most appropriate. He referred to a judgement of the Labour Court <em>NEI Zimbabwe (Pvt) Ltd v Makuzva</em> LC/H/248/04 and quoted the following excerpt:</p> <p>“I am convinced that in providing for s 12B (4) in the Act, the Legislature meant to ensure that employers do not rush to dismissals merely because the acts of misconduct were dismissible … any disciplinary action taken must be largely corrective and reasonable.”</p> <p> </p> <p>The Arbitrator proceeded to state that the same principle is echoed in s 7 (1) of the National Code of Conduct which provides as follows:</p> <p>“(1) In general, disciplinary action should, in the first instance, be educational and then corrective. Punitive action should only be taken when the said earlier steps have proved ineffective.”</p> <p> </p> <p> </p> <p>He further stated that this principle should have been a guiding factor in the exercise of the respondent’s discretion. Furthermore, that the respondent had in any event not suffered any prejudice and that there was nothing on the record to show that the appellant’s mitigating factors were reasonably assessed and taken into account. He also opined that as the contract of employment was not produced during the disciplinary hearing, the respondent’s stance that the misconduct went to the root of the contract was unreasonable as it was based on an inference. He proceeded to highlight that that the respondent was aware that the appellant had written the letter of undertaking after receiving a call and an email from Tetrad and that there was no finding of proof of any sinister motives linked to the letter of undertaking. He therefore found that the merits of the case do not warrant a penalty of dismissal. He proceeded to set aside the dismissal penalty and instead imposed one of a final written warning valid for six months.</p> <p> </p> <p>The Labour Court set aside the Arbitrator’s penalty of a final written warning and confirmed the appellant’s dismissal. It referred to the case of <em>Circle Cement (Pvt) Ltd v Chipo Nyawasha</em> SC 60/03 in which it was stated that once an employer takes a serious view of the misconduct committed by an employee to the extent that it considers it a repudiation of the contract, which repudiation it accepts by dismissing the employee, then the question of a penalty less severe than dismissal will not arise for consideration.</p> <p>The court <em>a quo</em> correctly found further guidance in the case of <em>ZB Financial Holdings v Maureen Manyarara</em> SC 2/12 where it was stated that even where mitigating factors are taken into account, this would not necessarily assist an employee where the employer considers the misconduct as one that is so serious as to go to the root of the contract of employment.</p> <p> </p> <p>The undisputed fact is that the appellant wrote a letter to Tetrad claiming that he was acting under instructions from DD Mining and General Supplies which had an ongoing contract or arrangement with the respondent in terms of which the respondent regularly placed orders. At p 5 of the judgement of the court <em>a quo</em> the learned judge aptly stated:</p> <p>“The crux of the matter is said to be that the respondent gave false information in the letter of undertaking that there was an on-going contract between the appellant and DD Mining and that he was acting under instructions from DD Mining.”</p> <p> </p> <p>By his conduct in writing the letter of undertaking that had falsehoods, the appellant abandoned his duty of safeguarding the interests of the respondent. He did not verify the truthfulness of what he was signing for and thereby binding the respondent as its representative in his capacity as the Acting Chief Finance Officer.</p> <p> </p> <p>The alleged or purported authorisation does not avail the appellant any relief in this regard. Furthermore, Tetrad did not write the letter on behalf of the appellant. The appellant wrote it and appended his signature thereto. The fact that the content of the letter was suggested by Tetrad does not take the appellant’s case any further. By his admission that he was told what to write in the letter, the appellant in essence admitted that he had abandoned the interests and the instructions of the respondent, his employer. </p> <p> </p> <p>The appellant signed the letter of undertaking without due diligence, thereby disregarding his duty to his employer. He committed an act and conducted himself in a manner that is inconsistent with express or implied terms of his contract of employment. This Court’s statement in the case of <em>Toyota Zimbabwe v Posi </em>2008 (1) ZLR 173 (S) is apposite:</p> <p>“It is a common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him <strong>if the circumstances of the commission of the offence show that the continuance of a normal employer and employee relationship has in effect been terminated.</strong> <em>Standard Chartered Bank Zimbabwe v Chapuka</em> SC-125-04.” (the emphasis is added<em>)</em></p> <p> </p> <p>The contention by the appellant that his conduct cannot be so viewed because the contract of employment was not produced during the hearing only goes to confirm the appellant’s unsuitability for continued employment with the respondent.</p> <p> </p> <p>It is settled that the decision on what penalty to impose on an employee is an exercise of discretion by the employer. That discretion however must be exercised judiciously. The arbitrator’s finding that the employer had not exercised this discretion judiciously was not founded on any valid consideration. The arbitrator seemed to labour under the mistaken belief that mitigating factors as provided for in s 12B(4) of the National Code of Conduct have the effect of altering the common law position that allows an employer who views an employee’s misconduct as one going to the root of their employment agreement, to exercise its discretion and terminate the relationship.</p> <p>   </p> <p>The following excerpt from <em>Standard Chartered Bank Zimbabwe Limited v Michael Chapuka</em> (<em>supra)</em> at page 7 of the judgement, now quoted more fully, is of assistance in the proper determination of matters of this nature:</p> <p>“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee<strong>, giving the former a <em>prima facie </em>right to dismiss the latter.</strong>   In <em>Clouston &amp; Co Ltd v Corry</em> [1906] AC 122 LORD JAMES OF HEREFORD remarked by way of a <em>dictum</em> at p 129:</p> <p> </p> <p>“Now the sufficiency of justification depends upon the extent of misconduct.   There is no fixed rule of law defining the degree of misconduct which will justify dismissal.   Of course, there may be misconduct in a servant which will not justify the termination of the contract of service by one of the parties to it against the will of the other.   On the other hand, <strong>misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal</strong>.” (the emphasis is added)</p> <p> </p> <p> </p> <p>Further, at pages 8 – 9 of the judgement the following is also stated:</p> <p>“In my judgment, what was said by the Tribunal about the effect of the misconduct committed by Chapuka against Standard Chartered would not have been sufficient to justify interference with the judgment of the appeals board.   The relevance of the statement by the Tribunal that the intention of Chapuka in committing the misconduct was not to defraud Standard Chartered and <strong>that no prejudice was suffered by Standard Chartered as a result of his acts is open to doubt, because the alleged intention of a fraudulent employee cannot be taken as a standard with which to determine whether an employer acted reasonably in taking the view that the misconduct was so serious in nature as to justify dismissal.</strong>” (emphasis added)</p> <p>For the reasons discussed above the decision of the court <em>a quo</em> cannot be faulted.</p> <p> </p> <p>In the result, the appeal fails in its entirety. Costs will follow the cause. It is therefore ordered as follows:</p> <p>The appeal is dismissed with costs.   </p> <p>                       </p> <p><strong>HLATSHWAYO JA:</strong>                                                                       I agree</p> <p> </p> <p><strong>BHUNU JA:  </strong>                                                                                    I agree</p> <p><em>Mbidzo Muchadehama &amp; Makoni,</em> appellant’s legal practitioners</p> <p><em>Mutamangira &amp; Associates</em>, respondents’ legal practitioners</p> <p>Innscor v George Chimhini SC 06/12; Mashonaland Turf Club v George Mutangadura SC 05/12; ZB Financial Holdings v Maureen Manyarara Sc03/12</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/12/2019-zwsc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40456">2019-zwsc-12.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/12/2019-zwsc-12.pdf" type="application/pdf; length=222708">2019-zwsc-12.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct">Misconduct</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2004/128">Circle Cement (Pvt) Ltd. v Nyawasha (10/03) ((Pvt)) [2004] ZWSC 128 (01 March 2004);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Tue, 18 Jun 2019 10:29:07 +0000 admin 9327 at https://old.zimlii.org British American Tobacco Zimbabwe v Chibaya (SC 30/19, Civil Appeal No. SC 429/16) [2019] ZWSC 30 (15 March 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/30 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p><strong>DISTRIBUTABLE</strong><strong>               (28) </strong></p> <p> </p> <p><strong>BRITISH     AMERICAN     TOBBACO     ZIMBABWE </strong></p> <p><strong>v</strong></p> <p><strong>JONATHAN     CHIBAYA</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; MAVANGIRA JA </strong></p> <p><strong>HARARE, JUNE 20, 2017 &amp; MARCH 15, 2019</strong></p> <p> </p> <p><em>S. M. Hashiti, </em>for Appellant</p> <p><em>K. Gama,</em> for Respondent</p> <p>             </p> <p> <strong>MAVANGIRA JA</strong>:       This is an appeal against the entire judgment of the Labour Court dismissing the appellant’s appeal against a decision of the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which found that the appellant had failed to prove a <em>prima facie</em> case against the respondent.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p> </p> <p>The appellant, British American Tobacco Zimbabwe, is a company registered in terms of the laws of Zimbabwe. The respondent was employed by the appellant as a trade marketing representative.</p> <p> </p> <p> </p> <p>The respondent was charged with an act of misconduct which was couched in the following terms:</p> <p>“<strong>Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters</strong></p> <p><strong>            Violation of Clause (d) defined as;</strong></p> <p>Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:</p> <p>Charges against you are emanating from that on 31st may 2012 you allegedly withdrew US$2,605.00 from British American Tobacco Zimbabwe’s (BAT Zimbabwe) account and converted this amount to your own use.”</p> <p> </p> <p> </p> <p> </p> <p>The charge arose after it was discovered that there were two withdrawals of an amount of USD2 605-00 from the appellant’s Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was unauthorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it the latter withdrawal was also made by the respondent.</p> <p> </p> <p> </p> <p>The charges were laid almost a year later, on 29 July 2013 and the respondent was suspended from work with full pay and benefits in terms of the applicable Code of Conduct being the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI 322/96).  A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist who, after analysing several samples of the respondent’s signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent’s standard signature. Consequently the respondent was dismissed from employment with effect from 30 August 2013, the date on which the disciplinary committee made the decision.</p> <p> </p> <p>The respondent appealed to the Works Council against the dismissal. The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:  </p> <ul> <li>obtain the original withdrawal documents;</li> <li>get an explanation from the bank on the processing of a withdrawal slip;</li> <li>get confirmation from the bank whether video evidence was still available; and</li> <li>seek clarification on issues raised by the Mutare branch manager during the initial hearing.</li> </ul> <p> </p> <p>However, without obtaining and considering the documents and evidence it had hoped to get from the bank, on 25 November 2013, the Works Council made and availed its decision upholding the dismissal penalty by the Disciplinary Committee.</p> <p> </p> <p> </p> <p>Aggrieved by the decision of the Works Council, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee’s reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely the handwriting expert’s report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent.</p> <p> </p> <p> </p> <p>Further the NEC Grievance and Disciplinary Committee found that the bank was not co-operative as it failed to provide information which would have assisted the committee in its determination of the guilt of the respondent or otherwise. This information included the original withdrawal slip, the relevant video footage and an explanation of how withdrawal slips are processed. In light of the inconclusive handwriting report and the missing information which the bank was reluctant to supply, the NEC Committee concluded that, whilst the respondent’s connivance with the bank could not be ruled out, on the proven facts and available evidence, the appellant had failed to prove respondent’s guilt on a balance of probabilities.</p> <p> </p> <p>Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court. The appellant’s grounds before that court were essentially that the NEC Committee had erred at law and misdirected itself in a number of respects. It had erred and misdirected itself in holding that the appellant had failed to substantiate its claim when it found that connivance with the bank could not be ruled out; in disregarding the forensic report by the handwriting expert; in ignoring the respondent’s identification details which were affixed on the withdrawal slip and in holding that the fraudulent transaction had been committed by a member of the bank.</p> <p> </p> <p>The court <em>a quo</em> upheld the decision of the Committee. It reasoned that the withdrawal slip of 31 May 2012 was effected at 0800 hours, a time when the doors of the bank get opened to the public and that there was no evidence that was led to show that the respondent was already in the bank at that time. Further, it found that the forensic report relied upon was based on the examination of photocopies and not the original documents which were kept at the bank. Consequently, the court <em>a quo</em> concluded that the evidence on record pointed rather to the involvement of the bank’s personnel and not that of the respondent. The appeal was thus dismissed.</p> <p> </p> <p> </p> <p><strong>BASIS OF PRESENT APPEAL</strong></p> <p>Aggrieved by the court <em>a quo’s</em> decision, the appellant has appealed to this Court on the following grounds:</p> <ol> <li>The court <em>a quo</em> erred and misdirected itself in failing to find that sufficient evidence, including expert forensic evidence and facts had been established linking the respondent to commission of the offences charged under clause (d) of SI 322 of 1996.</li> <li>The court <em>a quo</em> further erred and misdirected itself in failing to find that, in any event, sufficient evidence had been led to establish respondent’s connivance in the commission of the offences charged under clause (d) of SI 322 of 1996</li> <li>The court <em>a quo</em> further erred and misdirected itself in rejecting expert evidence pointing to the respondent’s guilt and connivance in the commission of the offence charged under clause (d) of S.I 322 of 1996</li> <li>The court <em>a quo</em> consequently erred and misdirected itself in failing to find that the respondent’s guilt had been established and consequently his dismissal was lawful.</li> </ol> <p> </p> <p> </p> <p><strong>THE ISSUE</strong></p> <p>From these grounds of appeal and the facts above, the only issue for determination is whether or not there was sufficient evidence in the record to link the respondent to the commission of the offence.</p> <p> </p> <p> </p> <p><strong>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>The submission by Mr <em>Hashiti, </em>on behalf of the appellant, in both his written and oral submissions, is that the appellant managed to prove on a balance of probabilities that the fraudulent withdrawal of its funds on 31 May 2012 was made in the respondent’s name and on his signature, that the withdrawal instruction bore the respondent’s identity details, all of which aspects were confirmed by the handwriting expert’s report which concluded that the signature on the withdrawal slips matched that of the respondent.</p> <p> </p> <p> </p> <p>Consequently, the appellant argued, the respondent was guilty of the offence charged and the NEC Grievance and Disciplinary Committee had therefore wrongly found him not guilty.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>Mr <em>Gama, </em>for the respondent, argued that the appellant failed to prove on a balance of probabilities that the respondent had committed the offence. He argued that the respondent could not have signed the withdrawal slip of 31 May 2012 because he could not have been in the bank before the bank’s opening time for him to have been served at 8.00am and that therefore the withdrawal could only have been done by a staff member of the bank.</p> <p> </p> <p> </p> <p>He further argued that the handwriting expert’s report was unreliable and inconclusive because the expert relied on photocopies of the withdrawal slips in assessing the signature. To show the unreliability of the photocopies the respondent pointed out the fact that the expert missed the variation between the forged signature on the photocopy of the 31 May 2012 withdrawal slip which ended with two dots and the appellant’s standard signature which had none.</p> <p> </p> <p> </p> <p><strong>ANALYSIS </strong></p> <p>            The charges that were laid against the respondent arose after the withdrawal of 31 May 2012 because the withdrawal slip was in his name and was purportedly signed by him. In addition, his identification particulars were also recorded thereon. A perusal of the record shows that there was no direct evidence linking the respondent to the offence. The appellant relied on circumstantial evidence. The respondent on his part argued that the circumstantial evidence relied on did not prove that he was guilty.</p> <p> </p> <p>In <em>S v Tambo</em> 2007 (2) ZLR 33 (H), 34 C-D (a criminal matter), the court held that;</p> <p>“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>However in cases where not only one inference can be drawn, the court in <em>Ebrahim v Pittman NO</em> 1995 (1) ZLR 176 (H), 176, held that;</p> <p>“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”(emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Miller v Minister of Pensions</em> [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;</p> <p>“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In the book, The South African Law of Evidence, 4th Edition, <em>Hoffman and Zeffertt</em> state as follows:</p> <p>“In a civil case … if the facts permit more than one inference, the court must select the most plausible. If this favours the plaintiff, he is entitled to judgment. If inferences in favour of both parties are equally possible, the plaintiff has not discharged the burden of proof.…</p> <p> </p> <p>Selke J held in <em>Govan v Skidmore</em> that the selected inference must ‘by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.’”</p> <p> </p> <p> </p> <p> </p> <p>The learned authors expound further and explain that the court may however find that the contentions of the party who has produced no evidence are the more probable. They state that what is weighed in the balance is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.</p> <p> </p> <p> </p> <p>In the text Principles of Evidence, 4th edition, the authors Schwikkard and van der Merwe similarly state:</p> <p>“In civil proceedings the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference. For example, in <em>AA Onderlinge Assuransie-Assosiasie Bpk v De Beer</em> (1982 (2) SA 603 (A)) it was held that a plaintiff who relies on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference: he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.”</p> <p> </p> <p> </p> <p> </p> <p> In <em>casu</em>, the appellant having alleged that the respondent had committed an offence, had the burden to prove the allegation. It is trite in our law that he who alleges must prove. It was the evidence of the appellant that the fraudulent withdrawal slip was processed at 0800hours on 31 May 2012. The fraudulent withdrawal was made in the name of the respondent and an almost similar signature to his was affixed to the withdrawal slip.  The withdrawal slip also bore the respondent’s personal details.</p> <p> </p> <p> </p> <p>It was on the strength of this that the charge was laid against the respondent leading to a disciplinary hearing, where a handwriting expert was called to examine the withdrawal slip to determine whether it was forged or it was indeed signed by the respondent. The expert found that the signature on the withdrawal slip was the same as the appellant’s standard signature. The expert’s conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert’s finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies.</p> <p> </p> <p> </p> <p>The bank was asked to assist in this matter but was not co-operative. At one point it was asked to provide the original copies of the withdrawal slip; it was also asked to assist with an explanation of the processing of a withdrawal slip and to also produce a video footage placing the respondent at the bank. The bank did not come through on all these requests. The bank’s uncooperative attitude must be viewed against the backdrop of the allegation that the bank knew or already had the respondent’s details; that the withdrawal slip was at all material times in the possession of the bank and was never accessed by the respondent and that the same bank teller who had served the respondent and processed the withdrawal of 18 May 2012 was the same teller who processed the same withdrawal on 31 May 2012.</p> <p> </p> <p> </p> <p>The bank’s uncooperative attitude is not irrelevant in the determination of this appeal. The specific requests that were made of it were in relation to critically material aspects that would need to be adverted to in determining whether, on a balance of probabilities, the respondent could be said to be guilty. In the absence of such, the guilt of the respondent cannot be said to have been proved, even on a balance of probabilities. The finding of the NEC Grievance and Disciplinary Committee, which was confirmed by the court <em>a quo</em> cannot, in the circumstances, be faulted.</p> <p> </p> <p> </p> <p>The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.</p> <p> </p> <p> </p> <p>The court <em>a quo</em> found that, because the bank was in possession of the withdrawal slip, any of its officials could have used the documents that had previously been presented in order to capture the signature and the identity particulars of the respondent.  The court <em>a quo</em> found that it was not clear whether the respondent was involved or not in the withdrawal of 31 May 2012. The appellant’s involvement was thus not proved. The appellant’s involvement or guilt in the withdrawal that occurred on 31 May 2012 was not the most readily apparent and acceptable inference. Rather, the balance of probabilities tended, in the view of the court <em>a quo</em>, to point to direct involvement by the bank or its employees.</p> <p> </p> <p>Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court’s general knowledge.  In <em>Menday v Protea Assurance Co. Ltd</em> 1976 (1) SA 565 at 569B-C it was stated that</p> <p>“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.” </p> <p> </p> <p> </p> <p>In <em>R v Chidota </em>1966 (3) SA 428, (another criminal matter) the learned judge QUENET (JP), held that:</p> <p>“where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”</p> <p> </p> <p> </p> <p> </p> <p>It is trite that in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.  </p> <p> </p> <p>                        In <em>S v Zuma</em> 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the evidence. </p> <p> </p> <p>In <em>casu</em>, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.</p> <p> </p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In light of the above findings, I am of the view that the appeal lacks merit and therefore ought to be dismissed with costs following the cause.</p> <p> </p> <p> </p> <p>In the result, it is ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GARWE JA                    :           </strong>I agree</p> <p> </p> <p><strong>GOWORA JA                :           </strong>I agree</p> <p>  </p> <p><em>Mawire J. T &amp; Associates</em>, applicant’s legal practitioner</p> <p><em>Gama &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/30/2019-zwsc-30.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41736">2019-zwsc-30.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/30/2019-zwsc-30.pdf" type="application/pdf; length=224903">2019-zwsc-30.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/misconduct-employee">misconduct of employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-evidence">Civil matter (EVIDENCE)</a></li></ul></span> Mon, 10 Jun 2019 07:30:35 +0000 admin 9310 at https://old.zimlii.org Muparaguda v Commercial Workers Union of Zimbabwe (SC 55/18, Civil Appeal No. SC/ 824/17) [2018] ZWSC 55 (27 September 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/55 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (49)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>WARDLOVE MUPARAGANDA</strong></p> <ol> <li> </li> </ol> <p><strong>COMMERCIAL     WORKERS     UNION     OF     ZIMBABWE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE                                                   </strong></p> <p><strong>GARWE JA, GUVAVA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE:     JULY 3, 2018 &amp; SEPTEMBER 27, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>T. Zhuwarara, </em>for the appellant</p> <p><em>R.R. Mutindindi, </em>for the respondent</p> <p> </p> <p> </p> <p><strong>BHUNU JA:       </strong>The appellant was employed by the respondent as a Senior Organising Secretary with effect from 19 January to November 2009. On 12 October 2009 the respondent suspended him without pay following allegations of misconduct.</p> <p>    </p> <p>Disciplinary proceedings were instituted against the appellant commencing 30 October 2009. The proceedings were in terms of the (National Employment Code of Conduct) Regulations S.I. 15 of 2006. The hearing officer was however unable to determine the matter one way or the other.  Consequently, on 3 November 2009 he referred the matter to the employer for final determination saying that:</p> <p> “… as the Hearing Officer, I am unable to make a ruling as such I forward both submissions and my summary to the employer for his Final decision. The accused employee Mr Muparaganda is therefore advised to appear before the general secretary personally or with a representative of his choice at 1200hrs at GWUZ head Office Park town Harare”</p> <p>Following the hearing officer’s failure to reach a verdict, the General Secretary wrote to the appellant lifting the suspension without pay. His letter to the appellant reads in part:</p> <p>“Your suspension without pay has been lifted and you can get your pay if you go to the bank now”.</p> <p> </p> <p> </p> <p> </p> <p>The appellant subsequently appeared before the General Secretary for a disciplinary hearing in terms of the hearing officer’s reference. The General Secretary delivered his verdict on 30 October 2009 dismissing the appellant from employment.</p> <p> </p> <p> </p> <p>Aggrieved by the dismissal, the appellant appealed to the Ministry which in turn referred the matter for arbitration. The arbitrator made an award nullifying the prior proceedings as unprocedural and   fatally defective.  In particular he held that the referral by the hearing officer to the General Secretary for a final determination a nullity for want of compliance with the rules saying:</p> <p>“There was no reason whatever for the Hearing Officer to have proceeded to refer the matter to the General Secretary. The hearing officer was obliged to make a decision.”</p> <p> </p> <p> </p> <p>Having set aside the proceedings before the hearing officer and the General Secretary, the arbitrator proceeded to hear the matter <em>de novo.</em> In his verdict the arbitrator found the appellant guilty of a dismissible act of misconduct for late banking of Union dues in contravention of s 17.17.1 of the respondent’s Constitution. He accordingly made the following award:</p> <p>“1.   Claimant’s dismissal was substantially unfair.</p> <ol> <li>Claimant’s dismissal was procedurally unfair.</li> <li>I therefore order the claimant be paid his salary and benefits from the date of suspension to the date of the award,</li> </ol> <p>26 April 2013. Such payment should be made within 14 days of receipt of this award.</p> <ol> <li>It is further ordered that claimant’s contract of employment is terminated with effect from 26 April 2013.</li> <li>If parties fail to agree on the calculations, they can approach the arbitrator for quantification”.</li> </ol> <p> </p> <p> </p> <p> </p> <p>Dissatisfied by the arbitral award, the appellant appealed to the Labour Court. The appeal raised only 2 issues for determination:</p> <ol> <li>Whether the defendant was entitled to a salary from the date of suspension when in fact his contract was terminated?</li> <li>Was respondent’s contract lawfully terminated?</li> </ol> <p>           </p> <p>The appellant was partially successful. In respect of issue number one, the court <em>a quo</em> held that the respondent was not entitled to his salary and benefits because he had been placed on suspension without salary and benefits. She reasoned that when the prior proceedings were nullified by the arbitrator the respondent reverted to his status as an employee on suspension without pay.</p> <p> </p> <p>As regards the second issue, the court <em>a quo</em> upheld and sustained the arbitrator’s award to the effect that the lawful date of dismissal was the 26 of April 2013.</p> <p> </p> <p> Despite the fact that the appellant had been partially successful, the learned judge in the court <em>a quo</em> in error proceeded to make an order as if the appellant had been wholly unsuccessful. The order reads:</p> <p>“The appeal therefore partially succeeds and accordingly the following order is made.</p> <p> </p> <ol> <li>The appeal be and is hereby upheld</li> <li>The arbitral award dated 26 April 2013 is hereby upheld</li> <li>No order as to costs.”</li> </ol> <p> </p> <p> </p> <p>In her ruling on the application for leave to appeal to this Court the learned judge properly acknowledged that she erred in making an order upholding the entire appeal when the appellant had only been partially successful.</p> <p> </p> <p>On the appeal before this Court the only issue was whether the respondent was entitled to his salary and benefits from the date of suspension to the date of lawful dismissal that is to say from 12 October to 26 April 2013. In holding that the respondent was not entitled to his salary the learned judge reasoned that the nullification of the entire proceedings by the arbitrator had also nullified the upliftment of the respondent’s suspension by the General Secretary. This is what the learned judge had to say at page 4 of her judgment:</p> <p>“However the proceedings uplifting the suspension, having culminated into an unprocedurally unfair dismissal were set aside. To my mind everything that transpired was set aside including the upliftment of the suspension. When the arbitrator set aside the dismissal, the respondent reverted to his position on suspension without salary and benefits see <em>Bank of Zimbabwe v Chikomwe and 211 Others</em> SC 77/00. I do not agree with the respondent that he was entitled to his salary and benefits as he was clearly on suspension without salary and benefits. This ground of appeal has merit and therefore succeeds.”</p> <p> </p> <p> </p> <p>With respect, it appears that the learned judge confused administrative action with disciplinary proceedings done by the employer or management. When the General Secretary lifted the suspension he was exercising his administrative function and not disciplinary action against the respondent. Disciplinary action was only instituted when both the hearing officer and the General Secretary took <em>quasi-judicial</em> action against the respondent.</p> <p> </p> <p>It is the <em>quasi-judicial</em> proceedings that were tainted with irregularity and not the administrative action of lifting the suspension. The arbitrator could not have nullified the upliftment of the suspension because this was never an issue placed before him and in any case it was not tainted with irregularity. It is not in dispute that in terms of s 10.2.2 of the appellant’s Constitution, the General Secretary has the discretionary power to suspend any employee of the Union with or without pay.</p> <p> </p> <p>Secretary took <em>quasi-judicial</em> action against the respondent.</p> <p> </p> <p>There having been no irregularity in the manner in which he uplifted the suspension, the upliftment of the suspension was perfectly lawful and binding. An employer who elects to pay an employee during the course of disciplinary proceedings voluntarily assumes an obligation from which he cannot unilaterally wriggle out without first re-suspending the employee without pay.  Although it was within the appellant’s discretion to re-suspend the respondent without pay, it did not exercise that option until the contract was lawfully terminated on 26 April 2013.  For that reason the judgment of the court <em>a quo</em> upholding the arbitral award of 26 April 2013 cannot be faulted.</p> <p> </p> <p>While it is correct, as stated in the case of <em>Bank of Zimbabwe</em> (<em>supra</em>), that when disciplinary proceedings are set aside for irregularity, parties revert to the <em>status quo ante. </em>In this case the principle was misapplied because, at the time of the arbitral award, the respondent’s status had changed from that of an employee on suspension without pay to that of an employee on suspension with pay.  Thus the respondent could not have reverted to being an employee on suspension without pay because that status no longer existed. That being the case the appeal can only fail. There being no reason for departing from the general rule that costs follow the result.   </p> <p> </p> <p> </p> <p>It is accordingly ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p><strong>GARWE JA</strong>:                          I agree</p> <p>           </p> <p>                        <strong>GUVAVA JA</strong>:                       I agree</p> <p> </p> <p><em>Matsikidze &amp; Mucheche, </em>appellants’ legal practitioners</p> <p><em>Chambati Mataka &amp; Makonese, </em>respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/55/2018-zwsc-55.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34313">2018-zwsc-55.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/55/2018-zwsc-55.pdf" type="application/pdf; length=136255">2018-zwsc-55.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-against-determination-disciplinary-committee-under-disciplinary-code">Appeal against determination of disciplinary committee under disciplinary code</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li></ul></span> Wed, 24 Oct 2018 06:41:48 +0000 admin 9117 at https://old.zimlii.org Constable Dhlakama & Another v The Trial Officer & Another (HH 129-18, HC 7210/15) [2018] ZWHHC 129 (13 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/129 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CONSTABLE DHLAKAMA M. 994695P</p> <p>and</p> <p>CONSTABLE KARIRIRA L. 991058L</p> <p>versus</p> <p>THE TRIAL OFFICER</p> <p>and</p> <p>THE COMMISIONER GENERAL OF POLICE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>HARARE, 11 October 2017 and 13 March 2018</p> <p><strong>Opposed Matter</strong></p> <p><em>W. Mugiya, </em>for the applicants</p> <p><em>K. Chimiti,</em> for the respondent</p> <p>            MWAYERA J: The applicants approached the court seeking review of disciplinary proceedings concluded by the Police Trial Officer. What fell for determination was firstly whether or not the applicants’ case satisfied review grounds as provided for by the law, and, secondly, whether or not the applicants could be tried in terms of the Police Act after having been charged  in terms of ordinary law.</p> <p>            The brief background of the matter has to be put into perspective. The applicants were charged for contravening para 34 of the schedule to the Police Act [<em>Chapter 11:10</em>] as read with s 29 and 34 of the same Act. The misdemeanour being omission or neglecting or negligence to perform any duties in an improper manner. The first applicant, was charged on the basis of having channelled a deposit fine for public fighting to his own use. This court has jurisdiction to entertain review proceedings. Section 27 (1) of the High Court Act outlines the requirements of a review. It provides as follows:</p> <p>“Subject to this Act at any other law the grounds on which any proceedings or decisions may be brought on review before the High Court shall be:</p> <ul> <li>absence of jurisdiction on the part of the court, tribunal or authority concerned.</li> <li>interest in the cause, bias, malice or corruption on the part of the Presiding officer.</li> <li>gross irregularity in the proceedings or decision.”</li> </ul> <p>It is apparent the applicant seeks permanent stay of prosecution under the Police Act</p> <p>on the basis that the  applicant was also charged under the Criminal Law (Codification and Reform) Act. What is central here is whether or not the criminal trial in the magistrate court is the same as the disciplinary hearing envisaged under the Police Act. In my view these are two distinct processes clearly provided for by law. The process is akin to situation where a person is charged for a criminal offence for example, assault, then the complainant also sues for damages. Such two processes cannot be viewed as constituting double jeopardy which would call for review when one considers that the purpose of a review is to ensure that an individual receives fair treatment at the hands of the authority to which he has been subjected. The circumstances of this matter do not reveal unfair treatment see <em>Mugugu </em>v <em>Police Service Commission and Anor</em> 2010 (2) ZLR 185.</p> <p>            In the present case the disciplinary authority by instituting a disciplinary hearing did not abuse the lawful authority reposed on it by the Police Act. The Administrative Body was within its powers to constitute a disciplinary hearing. This is moreso when one considers s 9 of the Police Act which sanction that the Commissioner General of Police in consultation with the Minister of Home Affairs or any other Minister assigned by the President for the administration of the Police Act, may make standing orders which regulate the conduct and affairs of the Police Service.</p> <p>            The discipline regulation and orderly conduct of the Police Service does not in any manner oust criminal proceedings where allegations involve criminal connotations. I agree with the sentiments echoed by the Judge in H<em>athan Chilufiya</em> v <em>Commissioner General of Police and 3 Others</em> HH 89-16 when it was stated:</p> <p>            “On the question of the accused person being exposed to double jeopardy as he is being tried       in the Magistrates’ Court for the same offence. I am satisfied that he can raise his conviction     and sentence as mitigating factor if he is convicted in the Magistrates Court. A trial and       conviction in terms of s 34 (1) is in terms of s 34 (9) not regarded as a conviction in terms of       any other law. It is regarded as a disciplinary action. This means the applicant is not exposed      to double jeopardy as alleged the trial in the magistrate court does not justify the staying of          the sentence imposed for disciplinary purposes. The two actions are separate and well           anchored on legal provisions. The charge as proffered under the tribunal is not a criminal         charge but an alleged disciplinary misdemeanour. In clear contrast with a criminal charge      which by law cannot be entertained by a disciplinary tribunal. The police standing orders clearly define what constitutes a criminal offence in the standing orders Volume 1 para (4) states</p> <p>                        ‘Criminal offence means any offence under common law or statutoryenactment other than an offence under the Police Act.’” [<em>Chapter 11:10</em>]</p> <p>            The police disciplinary tribunal has no jurisdiction to institute criminal proceedings as the law prescribes the criminal jurisdictions on specified courts and for disciplinary tribunal only to the extent that the jurisdiction is necessary to enforce discipline in the force concerned. Section 193 of the Constitution is instructive it states.</p> <p>            “Only the following court may exercise or be given jurisdiction in criminal cases</p> <ul> <li>The Constitutional Court, Supreme Court, High Court and Magistrates Court.</li> <li>A court at tribunal that deals with cases under a disciplinary law to extent at the jurisdiction if necessary for the enforcement of discipline in the disciplined force concerned.”</li> </ul> <p>In the present case the institution of disciplinary proceedings did not in any manner oust the institution of criminal proceedings given the alleged fraud. The institution of disciplinary hearing does not preclude criminal proceeding and vice versa. A reading of s 278 of the Criminal Law and Codification and Reform Act [<em>Chapter 9:23</em>] clearly shows that criminal proceedings in respect of the same conduct for which disciplinary proceedings have been instituted is permissible. See s 278 of the Code on Relation of Criminal to Civil or disciplinary proceedings, it states:</p> <ol> <li>In this section “disciplinary proceedings means any proceedings for misconduct or breach of discipline against a public officer or member of a disciplined force or a statutory professional body or against any other person for the discipline of whom provision is made by or under any enactment; disciplined force means:</li> <li> </li> </ol> <ul> <li>the police force or</li> <li>the prison service or any other force organised by the state which has</li> </ul> <p>as its sole or main objective preservation of public security and of law</p> <p>and order in Zimbabwe.</p> <ol> <li>A conviction or acquittal in respect of any crime shall not bar civil or disciplinary</li> </ol> <p>proceedings in relation to any conduct constituting the crime at the instance of any</p> <p>person who has suffered loss or injury in consequent of the conduct or at the instance</p> <p>of the relevant disciplinary authority as the case may be.</p> <p> </p> <ol> <li>Civil or disciplinary proceedings in relation to any conduct that constitutes a crime</li> </ol> <p>may without prejudice to the prosecution of any criminal proceedings in respect of the</p> <p>same conduct, be instituted of any time before or after commencement of such</p> <p>criminal proceedings.”</p> <p>In this case the applicants are members of the police force who were properly arraigned before the criminal court and also properly arraigned before the disciplinary tribunal for alleged improper conduct. The two umbrellas of proceedings are legally sanctioned. The disciplinary hearing is administrative and not criminal in nature hence there is no double jeopardy or prejudice entitling relief under the umbrella of unfair treatment. It is settled that the test applied on review is whether or not the proceedings are in accordance with real and substantial justice. The applicant sought to impute unfairness on the basis that criminal proceedings were also underway. The discussion above has shown that it is permissible to run both disciplinary and criminal proceedings in respect of the members in terms of both the Police Act and Criminal Law Codification and Reform Act.</p> <p>The applicant in oral submission sought to have the proceedings by the tribunal permanently stayed on basis that it was contrary to s 70 (1) of the Constitution. The applicant argued that the relevant Constitutional provision prohibited dual prosecution. If one is to take a close look of s 70 of the Constitution generally covers or deals with the rights of accused persons. Section 70 (1) (m) which applicant sought to rely on states:</p> <p>“Any person accused of an offence has the following rights (m) not to be tried for an offence in respect of an act or omission for which they have previously been pardoned of either acquitted or convicted on the merits.”</p> <p>            Despite pointing out to Mr <em>Mugiya</em>, counsel for the applicant that s 70 (1) (m) was not applicable given his client had not been subjected to double criminal prosecution for an offence or omission for which they had been pardoned or acquitted, Mr <em>Mugiya</em> insisted that continuation of the disciplinary hearing would be <em>ultra vires </em>the Constitution in particular section 70 (1) (m). The facts are clear that the applicants were not subjected to double prosecution. The disciplinary hearing was properly convened in terms of the Police Act and standing rules and that would not bar the institution of criminal proceedings.</p> <p>            The criminal proceedings were not over a matter for which the applicants had directly been pardoned or acquitted. The point taken by Mr <em>Mugiya </em>on applicability of s 70 (1) (m) of the Constitution to the present review in which the applicant sought permanent stay of disciplinary hearing was ill conceived. One could not help but read a deliberate ploy to mislead the court and paint a picture that there was double criminal prosecution. What the applicant sought to impugn was a properly constituted disciplinary hearing. In the absence of any indications of illegality or procedural irregularity and unfair treatment, there is no basis for setting aside and staying permanently the disciplinary hearing. In fact I must mention that the applicants seemed to be taking a gamble with the court in a bid to frustrate the disciplinary process.</p> <p>            The applicants in the founding affidavit relied on not having been served with state papers and also that they were being tried in the criminal magistrate court. The first argument was not pursued in the heads of argument and oral submissions. The applicants pursued the second grand of dual prosecution and introduced new grounds that their rights as provided for in section 70 (1) (m) of the constitution were being flouted. As has been shown there was no dual criminal prosecution. The disciplinary hearing and criminal trial are distinct processes legally sanctioned and in the circumstances of this case there was no question of double jeopardy arising.</p> <p>            The requirements of review have been established and I find no reason why the disciplinary proceedings should be permanently stayed. The application has no merit and it ought to fail. The applicant should bear the costs.</p> <p>            Accordingly it is ordered that:</p> <p>The application for review be and is hereby dismissed with costs.</p> <p>         <em>Mugiya &amp; Macharaga Law Chambers</em>, applicants’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/129/2018-zwhhc-129.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23453">2018-zwhhc-129.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/129/2018-zwhhc-129.pdf" type="application/pdf; length=176147">2018-zwhhc-129.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/disciplinary-proceedings-against-employee">disciplinary proceedings against employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-high-court">Jurisdiction (HIGH COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/89">Chilufya v Commissioner General of Police and Others (HC 3218/10) [2010] ZWHHC 89 (20 May 2010);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Fri, 11 May 2018 09:00:57 +0000 admin 8785 at https://old.zimlii.org