Abygale Marufu v TSL Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/13/2025
HARARE, 05th MARCH, 2024
CASE NO LC/H/871/23
AND
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/13/2025

HARARE, 05th MARCH, 2024	CASE NO LC/H/871/23 AND

13TH JANUARY, 2025

ABYGALE MARUFU	APPELLANT AND

TSL LIMITED	RESPONDENT

Before the Honourable Chivizhe, Judge:

For Appellant	Mr R. Matsikidze (Legal Practitioner)

For Respondent	Mr K. Maguchu (Legal Practitioner)

CHIVIZHE, J:

This is an appeal in terms of Section 92D of the Labour Act [28:01] against the Appeals Officer determination, dated 25th September, 2023.

FACTUAL BACKGROUND

The Appellant was employed as a procurement executive by the Respondent. She was responsible for managing the procurement processes for the organization. Her duties required strict adherence to the legal and procedural framework governing procurement, particularly as they related to the Respondent's operations. On the 29th March, 2023, the Appellant was charged with two charges i.e.“ any act of conduct inconsistent with the fulfilment of the express or implied conditions of her employment contract” as outlined in Section 4(a) of Statutory Instrument 15 of 2006 and “gross incompetence or inefficiency in the performance of her work”. It is common cause the second charge was later withdrawn by the employer. With regards the remaining charge it carried four counts all arising from two significant incidents involving the procurement of vehicles and information technology (IT) equipment. In the first count involving procurement of a vehicle it was alleged that she had

authorized the payment of a bribe to a ZIMRA official. Under the second count involving the IT equipment procurement incident it was alleged that she had failed to comply with procurement procedures and processes. More particularly she was alleged to have bought computer accessories and hardware without approved capex forms. Under the third count the employer alleged that she had varied the terms of a Memorandum of Understanding with the supplier of IT consumables without authorisation. On the last count the Appellant was alleged to have instructed her juniors to facilitate completion of capex forms after purchase and delivery of the computers and hardware in so doing concealing the defective work related to the processes referred above, Following a full disciplinary hearing which included witnesses evidence, the Disciplinary Authority found the Appellant guilty on all four counts of the charge. The Disciplinary Authority consequently imposed a penalty of dismissal from employment. Dissatisfied with the determination Appellant noted an internal appeal. The Appeals Committee in dismissing her appeal, upheld the findings and the penalty imposed by the Disciplinary Committee. Displeased with the outcome Appellant has approached this court with her appeal against the determination by the Appeals Officer.

GROUNDS OF APPEAL

The Appeals Officer grossly erred factually and at law in failing to make a finding that the Disciplinary Authority grossly erred factually and at law in convicting the Appellant for allegations of paying a bribe to a ZIMRA official when:

There was no evidence of her paying the bribe,

The facts and evidence led by the complainant were that she authorised payment of the facilitation fee, which is not the factual charge which was laid.

The facts are clear that at all material times, the request in question was for a facilitation fee duly authorised by Mary Mashingaidze of the Managing Director of Bak Storage.

The Appeals Officer grossly erred at law and factually in failing to make a finding that the Disciplinary Authority erred in including findings on evidence that was not led by the complainant, in particular, that:

The definition of a facilitation fee was not raised in the hearing.

The evidence on alleged reminders of capex allegations from the Group ICT Executive and Finance Manager was not led in the hearing by the complainant, nor were the two called to testify.

The evidence that the employee and Seth, the Procurement Officer, confirmed that not all the capex forms were in place.

That capex forms were part of the procurement procedure.

The Appeals Officer erred at law and factually in failing to make a finding that the

Disciplinary Authority erred at law in finding that the Appellant breached procurement procedures when clearly there was no such breach and no specific section thereof was cited in the charge sheet.

The Appeals Officer erred at law and factually in failing to make a finding that the Disciplinary Authority erred at law in finding that the Appellant failed to comply with a memorandum of agreement and relied on evidence not led.

The Appeals Officer erred at law and factually in failing to make a finding that Disciplinary Authority erred making a finding that the computers cost was more than what was available on the local market which was never part of the charges and never mentioned by the complainant.

The Appeals Officer erred in upholding the penalty imposed which was harsh, thus paying a lip service to the mitigation.

Wherefore, the appellant prays that;

The Appeal succeeds with costs.

The decision of the Appeals Officer be set aside and substituted with the following;

The decision of the Disciplinary Authority be and is hereby set aside.

The Appellant be and is hereby found not guilty and acquitted.

The Appellant be and is hereby reinstated to her former position without loss of salary and benefits with effect from the 31" of July 2023 and If reinstatement is no longer tenable, the Appellant be paid damages in lieu of reinstatement

POINTS IN LIMINE

Both the Appellant and the Respondent have taken points in limine. The Appellant through her Heads of Argument has taken a point in limine that the notice of response is improperly before the court as it has been filed out of time. The Respondent has also taken a point in limine that the grounds of appeal are afflicted with vagueness and such impreciseness to the extent that they are defective in toto. The appeal ought therefore to be struck off with costs.

The Appellant submission is that the Respondent’s notice of response is improperly before the court as it was filed out of time without an accompanying application for condonation. Rule 19(2)(b) of the Labour Court Rules, 2017 requires a Respondent to file a notice of response within 10 days after receiving a notice of appeal. In this case, the Respondent was served with the notice of appeal on November 1, 2023, but only filed its Notice of Response on November 17, 2023. This was two days after the expiry of the

prescribed period. The Appellant argue that the provision in Rule 19(2)(b) is couched in peremptory terms, meaning that compliance is mandatory. Failure to adhere to this timeframe renders the Notice of Response improperly before the court unless condonation for the delay is sought and granted. The Appellant relies on the principle established in Chikura N.O & Anor v Al Sham's Global BVI Ltd SC 17/17, where the court emphasized that non- compliance with mandatory provisions of court rules results in a procedural nullity.

The Appellant submit that the Respondent had ample time between November 1 and November 15, 2023, to file the Notice of Response within the prescribed period. The failure to do so necessitated taking corrective action through an application for condonation. The Appellant has cited Mapuranga Carson & Carson Real Estate (Pvt) Ltd & Ors HH-123- 20 in support of her argument. The Appellant contends that the Respondent has clearly failed to take heed of her advice as there has been no notice of response filed on time. Condonation for the late filing of the notice of response that has since been filed has also not been sought.

The Appellant submit that the Respondent, being legally represented, ought to have been advised by their legal practitioners on the rules of the court and the consequences of such non-compliance. The Appellant highlight that legal practitioners have a duty to ensure that their clients adhere to procedural rules. The Appellant has referred to Business Equipment Corp v Baines Imaging Group and Talbert v Yeoman Produ cts (Pvt) Ltd, in which a distinction is made between faults attributable to clients and those attributable to legal practitioners. Regardless of where the fault lies, the Appellant argues that the Respondent’s failure to comply with Rule 19(2)(b) or seek condonation demonstrates procedural negligence. Consequently, the Appellant prayer is for the notice of response to be expunged from the record and for the application to be treated as unopposed.

The Respondent opposes the Appellant’s preliminary objection, which seeks to bar the Respondent from opposing the suit on the grounds that the notice of response was filed out of time. The Respondent submits that Rule 19(2)(b) of the Labour Court Rules, 2017 requires the filing of a notice of response within ten working days from the day after service of the notice of appeal. The Respondent contends that the notice of appeal was served on November 3, 2023, at 14:45, as indicated by the receipt stamp signed by one S. Songwe. Consequently, the ten-day period commenced on November 4, 2023, and the final day for filing was November 17, 2023. The Respondent thus argues that it complied fully with the prescribed rules by filing the notice of response on November 17, 2023. As such, the notice of response is properly before the court, and the Appellant’s point in limine is without merit.

The Respondent further submits that the Integrated Electronic Case Management System (IECMS) automatically conducts a compliance check for all documents submitted for filing. This compliance check ensures that documents are filed within the prescribed timeframes. Since the notice of response was successfully filed through the IECMS system, the Respondent argues that it is presumed to be in compliance with the rules. The Respondent relies on the principle articulated in Telecel v POTRAZ HH 447/15, where the court held that successful filing through a regulated system implies compliance with procedural requirements. The Respondent contends that this presumption renders the Appellant’s preliminary point a “misadventure” and that the objection should be dismissed.

The Respondent submits that even if the court finds merit in the Appellant’s preliminary point, it is willing to seek condonation to address any perceived irregularity in the filing of the notice of response. The Respondent has referred to Dalny Mine v Banda 1999 (1) ZLR 220 (SC), where the court held that any non- compliance with procedural rules can be rectified upon condonation being granted. The Respondent submits that its readiness to seek condonation underscores its good faith and commitment to resolving the matter fairly. The Respondent prays for the dismissal of the Appellant’s preliminary point.

The Respondent has also raised its own preliminary objection to the grounds of appeal as outlined in the Appellant’s notice of appeal. The Respondent contends that the grounds fail to meet the legal requirements of clarity, brevity, and conciseness, rendering the appeal fatally defective. The Respondent submit that the Appellant’s grounds of appeal, as presently framed, fail to meet the standards set for valid grounds of appeal. The Respondent has cited Jensen v Acavalos 1993 (1) ZLR 216 at 220B, where the court held that grounds of appeal must be clear, concise, and precise to allow the opposing party to understand the case they must meet and to enable the court to adjudicate effectively.

The Respondent contend that several grounds of appeal lack specificity and fail to differentiate between factual and legal findings. The Respondent submit that grounds 1 and 2 allege that the appeals officer “grossly erred factually and at law” without specifying whether the attack is directed at a factual finding or a legal conclusion. The Respondent argue that this lack of clarity leaves both the court and the Respondent uncertain about the nature of the case being advanced. This contravenes the principles established in Sonyongo v Minister of Law and Order 1996 (4) SA 384 at 385F and Chinganga v Shava SC 12/22, where the courts emphasized the need for specificity in grounds of appeal.

On ground 3, the Respondent submit that this ground is generalized and fails to identify the specific nature of the breach alleged against the Respondent. Without such specificity, the Respondent cannot adequately respond to the allegation. Ground 4 challenges the appeals officer’s failure to make a particular finding but does not state why the finding was incorrect or provide a basis for the criticism. By referring to Mohammed v Kashiri SC 85/19 and Zimbabwe Open University v Ndekwere SC 52/19, the Respondent argue that a ground of appeal must articulate the basis for alleging that a finding of fact or ruling is incorrect.

The Respondent further submit that ground 6 does not constitute a valid ground of appeal as it fails to indicate whether the Appellant is challenging a legal ruling or a factual finding. The Respondent has labelled this ground as vague and embarrassing, referencing Chinganga v Shava SC 12/22, where the court dismissed similarly vague and general grounds of appeal, such as “the conviction is against the weight of evidence.”

The Respondent further submit that the sub-grounds of appeal are excessively argumentative and effectively attempt to argue the appeal rather than succinctly outline the errors being challenged. The Respondent has cited Econet Wireless (Pvt) Ltd v TrustCo Mobile (Proprietary) Ltd SC 43/13 and Zimbabwe Open University v Ndekwere SC 52/19 to underscore the impropriety of argumentative grounds of appeal. The Respondent also argue that all the grounds of appeal are rooted in complaints about factual findings rather than legal issues. The Respondent emphasizes that the Appellant has also failed to allege that the factual misdirections alluded to were so gross in nature, as to amount to a misdirection in law which is the threshold for interfering with findings of fact.

The Respondent submit that the cumulative defects in the grounds of appeal render the entire notice of appeal fatally flawed. The Respondent prayer is for the appeal to be struck off the roll with costs and in the alternative, should the court decide to proceed to the merits, the Respondent reserves the right to address the substantive issues raised by the Appellant. The Respondent has placed reliance on Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S), where the court held that appellate courts should not lightly disturb factual findings made unless there is a gross misdirection on the facts or a failure to properly assess the evidence.

The Appellant in response submit that the grounds of appeal are valid, clear, and properly before the court. The Appellant contends that the objection is without merit. The Appellant submit that the grounds of appeal meet the legal requirements of clarity,

conciseness, and precision. Appellant also notes that, contrary to the Respondent’s allegations, the grounds are neither vague nor argumentative but adequately outline the issues being appealed. The Appellant has placed reliance on the case of Chikura N.O & Anor v Al Sham's Global BVI Ltd SC 17/17 where the court held that it was not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several grounds of appeal in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of grounds of appeal. The Appellant argues that the present grounds of appeal conform to this principle and the real issues are immediately ascertainable by the court.

The Appellant submit that the grounds of appeal clearly articulate the errors made by the Appeals Officer. This clarity allows the Respondent to understand the case they must meet and informs the court of the issues requiring adjudication. The Appellant relied on Songono v Minister of Law and Order 1996 (4) SA 384, where Leach J stated:

“The grounds of appeal are required, inter alia, to give the respondent an opportunity of abandoning the judgment, to inform the respondent of the case he has to meet, and to notify the court of the points to be raised. It has been held that grounds of appeal are bad if they are widely expressed as to be of no value either to the court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.”

The Appellant contend that the present grounds fulfil this requirement by clearly expressing the issues the Respondent must address.

The Appellant further elaborates on the content of each ground of appeal. It is submitted that grounds 1 and 2 address whether the Appeals Officer correctly upheld the Appellant’s conviction related to the payment of a bribe. On ground 3 the Appellant submits that this ground challenges the decision to uphold the conviction regarding breaches of procurement procedures. The Appellant further submits that ground 4 questions whether there was compliance with the memorandum of agreement and whether the Appeals Officer erred in their findings on this issue. In Ground 5 the Appellant questions whether the punishment imposed was proportionate to the misconduct. The Appellant submits that these grounds are structured to highlight specific issues, providing sufficient notice to the Respondent and the

court about the nature of the appeal. Accordingly, the Appellant prayer is for the dismissal of the Respondent’s point in limine.

On the 19th of February, 2024 the parties appeared and presented arguments on the points in limine taken. Appellant’s Counsel persisted with two points in limine, one pertaining to the lack of a valid Notice of Response and secondly, the lack of authority for the deponent to the Opposing Affidavit. The Appellant prayer was for the Opposing Affidavit to be expunged from the record and the matter to proceed as unopposed. The Respondent’s Counsel in counter submitted that the first point clearly lacked merit on the basis of the reasons as already submitted before the court. In respect of the second point he submitted that on the basis of authorities such as Tianze Tobacco vs. Mutuyedwa HH 626/15 the irregularity was not fatal, it was also in the discretion of the court to request for the production of the resolution, a route which was suggested in authorities such as Air Zimbabwe vs J.V. Mateko and others . The Appellant Counsel, in his reply, indicated that he would not persist with the second point in limine, he was amenable to the production of the board resolution even at that stage of proceedings. He however was persisting with the first point in limine. The court in its ruling found the first point in limine as lacking in merit. It was clear that as the Respondent was legally represented the dies induciae had to be calculated from the date of service of the Notice of appeal on the Respondent Counsel. On that basis the Notice of Response had been timeously filed. The first point in limine was consequently dismissed. The Appellant Counsel having conceded to the second point in limine that point was duly dismissed. The court directed the Respondent to file the relevant Board Resolution and the matter was duly postponed on that date. The Board Resolution having been later filed, the matter was reset and proceeded on the merits on 5th March, 2024. The Respondent having failed to pursue its own point in limine that point has to be regarded as abandoned.

PARTIES SUBMISSIONS ON THE MERITS

Both parties appeared before this court and made submissions in favour of their arguments as presented.

APPELLANTS’ SUBMISSIONS

The Appellant challenges the findings of the Appeals Officer and Disciplinary Authority on three grounds: (1) the alleged payment of a bribe to a ZIMRA official, (2) the alleged breach of procurement procedures, and (3) the proportionality of the penalty imposed.

The Appellant submits that these findings were based on gross misdirections and were not supported by the evidence presented.

The Appellant submitted that the Appeals Officer grossly erred in upholding the conviction for paying a bribe to a ZIMRA official. The Appellant argued that no evidence was led to prove the payment of a bribe. The factual charge alleged the payment of a bribe, yet the evidence indicated that the payment was for a "facilitation fee" authorized by Mary Mashingaidze of Bak Storage. It was highlighted that the Appellant neither met the alleged ZIMRA official nor personally handed over the USD $200. The record showed that one Costa Masawi of Bak Logistics paid the amount. The Appellant further submitted that there was no testimony or evidence from ZIMRA or Costa Masawi to establish that the USD $200 was a bribe rather than a facilitation fee. Relying on CABS v Rugwete, the Appellant argued that where the facts do not disclose the offense charged, an acquittal is warranted. The Appellant maintained that the charge of paying a bribe was unproven, and the Appeals Officer therefore erred by failing to set aside the conviction. The Appellant also referred to Circle Trucking v Mika Mahachi, where the Supreme Court defined corruption (similar to bribery) using its ordinary meaning. The Appellant argued that the facts of the case did not meet the definition of bribery and that the conviction was a gross misdirection.

The Appellant also submitted that the Appeals Officer erred in upholding the conviction related to alleged breaches of procurement procedures. The charge alleged that the Appellant purchased IT equipment without completing Capex forms. However, the Appellant contended that the Respondent did not present evidence of the unapproved Capex forms. The Respondent also failed to cite specific provisions of the procurement policy allegedly breached. The Appellant argued that the purchases were made at the group level and were approved by relevant executives, including the CFO and ICT department. The Appellant emphasized that the purchases were in line with the employer's specifications. It was submitted that Capex forms could only be completed after delivery to avoid splitting invoices and to also ensure quality assurance. The Appellant relied on Mutsuta & Anor v Cagar (Pvt) Ltd where a misdirection of fact was defined as either failing to appreciate a fact or making a finding contrary to the evidence presented. The Appellant further cited ZINWA v Mwoyounotsva, TM Supermarkets v Mangwiro, and Aaron Zhombwe v BHPM Company, where the principle was laid that an appellate court may interfere with decisions that are grossly unreasonable or defy logic. The Appellant submission was that the Appeals Officer’s decision was grossly unreasonable the court was urged to set it aside.

The Appellant further submitted that the Appeals Officer erred in confirming the penalty of dismissal, arguing that it was harsh and disproportionate. It was submitted that on the basis of the relevant Code dismissal should be a last resort and not automatic, this applies even for dismissible offenses. In terms of Section 12B (4) of the Labour Act [Chapter 28:01], factors such as length of service, disciplinary record, nature of employment, and personal circumstances must also be considered. The Appellant highlighted that another employee, Patience Shiri, caused a USD $100,000 loss but received no comparable punishment. This inconsistency was cited as evidence that a lesser penalty could have been imposed in her case. The Appellant also cited NEI Zimbabwe (Pvt) Ltd v Makuzva, where the court emphasized that disciplinary action must be corrective and reasonable rather than punitive. Further reliance was placed on Musido v Hippo Valley Estates, Musumhi v PSC (Ministry of Health and Child Welfare), and Chavhunduka v United Bottlers, where similar principles were upheld. The Appellant argued that the Appeals Officer failed to give due regard to the mitigation factors and merely rubber-stamped the Disciplinary Authority’s findings.

The Appellant submitted in her prayer that the appeal should be upheld as the charges of bribery and procedural breaches were unproven. The penalty was also disproportionate to the misconduct on which she was convicted taking into account the mitigating circumstances.

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RESPONDENTS SUBMISSIONS

The Respondent opposes the appeal and argues that the findings of the Disciplinary Authority and Appeals Officer were correct in law and fact.

The Respondent submitted that the Appellant’s attempt to differentiate between a "facilitation fee" and a "bribe" is legally unsound, as the two are indistinguishable in substance. Citing Nayak v State WP (C) Orissa High Court No. 128259/2013, the Respondent argued that what matters is not the label but the essence of the act. The misconduct lay in procuring through unethical means, irrespective of the terminology used. The Respondent relied on National Battery (Pty) Limited v Matshoba (2010) 5 BLLR 534 (LC), emphasizing that the focus must be on whether the evidence demonstrates wrongdoing. The definition of a bribe was provided under Section 170 of the Criminal Code and Reformation Act [Chapter 9:23], where it involves obtaining or giving a reward as inducement for an act in relation to the principal’s affairs. The Respondent argued that the

Appellant’s actions fell squarely within this definition. The Respondent further referred to Circle Trucking v Mahachi 2009 (2) ZLR 26 (S), where the Supreme court emphasised that codes of conduct must be interpreted to uphold their intended purpose, which in this case was to eliminate corruption. The Respondent highlighted the common law principle of qui facit per alium facit per se ("he who acts through another, acts personally"), as cited in Musemwa v Estate Late Misheck Tapomwa HH 136/16. The Appellant’s authorization of the payment implicated her directly, regardless of whether she physically handed over the money.The Respondent submitted that the evidence from witness Mrs. M Mashingaidze, supported by WhatsApp messages, corroborated the Appellant’s role in facilitating the payment. The Respondent argued that the findings of the tribunals were reasonable and should not be disturbed, relying on Hama v NRZ 1996 (1) ZLR 664 (S).

The Respondent submitted that the Appellant failed to comply with the Respondent’s procurement policy, which explicitly required the completion of Capex forms before any purchases. The procurement policy, specifically Section 5.4, was cited as binding on the Appellant, who was obligated to adhere to it. The Respondent relied on Taguzu v Commission for Conciliation, Mediation and Arbitration and Others (JR1785/18) [2023] ZALCJHB 197.The Respondent argued that employees cannot claim ignorance of clearly established workplace rules, as noted in National Battery (Pty) Limited v Matshoba. Addressing the Appellant’s claim that the charge was defective, the Respondent cited ZFC v Geza SC 14/97, asserting that charge letters need only inform employees of the misconduct alleged and need not specify a section of the code of conduct.

The Respondent contended that the Appellant’s actions in varying the terms of the Memorandum of Understanding (MOU) without approval constituted misconduct. The Respondent highlighted that the Appellant exceeded her authority by committing the Respondent to an additional USD $29,480 in credit without approval, thereby violating internal controls and financial risk management policies. The Respondent referred to Harmony Gold Mining Co Limited v CCMA (2013) 34 ILJ 912 (LC) and Innscor Africa v Gwatidzo SC 5/15, emphasizing that such conduct amounts to insubordination and breaches the fiduciary duty owed by employees. The Respondent also cited the internal audit report of February 15, 2023, which indicated that the cost of computers purchased by the Appellant exceeded market rates. The Respondent argued that this evidence justified the tribunal’s findings.

The Respondent submitted that the penalty of dismissal was warranted given the nature and gravity of the Appellant’s misconduct. The Respondent argued that dismissal is appropriate when misconduct goes to the root of the employment relationship, as outlined in Mutangadura v Turf Club SC 5/12. Relying on De Beers Consolidates Mines Limited v Commission For Conciliation, Mediation And Arbitration (2000) 21 ILJ 1051 (LAC), the Respondent also maintained that dismissal serves as a rational response to managing operational risk. The Appellant’s actions jeopardized the Respondent’s financial standing and reputation, justifying her termination. The Respondent asserted that while the Appellant presented mitigating factors, these were insufficient to override the serious view taken of her misconduct. It was clear that Appellant’s conduct undermined the trust between her and the employer, she also breached her fiduciary duty. The Respondent therefore contended that the findings of the Disciplinary Authority and Appeals Officer were reasonable and supported by evidence. The Respondent’s prayer is that the appeal be dismissed with costs.

EVALUATION

The court is tasked with determining the appeal brought by the Appellant against the findings of the Appeals Officer. The Appellant challenges her dismissal on three broad grounds: (1) the alleged payment of a bribe, (2) alleged breaches of procurement procedures, and (3) the proportionality of the penalty of dismissal.

ISSUES FOR DETERMINATION

WHETHER	THE	APPEALS	OFFICER	ERRED	IN	UPHOLDING	THE CONVICTION FOR PAYING A BRIBE TO A ZIMRA OFFICIAL.

The Appellant argued that the evidence failed to establish the charge of paying a bribe. The Appellant emphasized that she did not meet the ZIMRA official or personally hand over the USD $200, which was instead paid by Costa Masawi. She maintained that the payment was a "facilitation fee" authorized by her superior, Mary Mashingaidze. The Appellant relied on CABS v Rugwete, asserting that a charge must align with proven facts, failing which an acquittal is warranted. Further, the Appellant referred to Circle Trucking v Mika Mahachi to argue that the evidence did not meet the ordinary definition of bribery. The Respondent argued that a facilitation fee is indistinguishable from a bribe, as both involve unethical inducements. Citing Nayak v State WP (C) and National Battery (Pty) Limited v

Matshoba, the Respondent submitted that the label assigned to the payment is irrelevant if the evidence demonstrates unethical conduct. The Respondent further argued that the Appellant authorized the payment, implicating her under the principle of qui facit per alium facit per se ("he who acts through another, acts personally"), as held in Musemwa v Estate Late Misheck Tapomwa HH 136/16. The evidence presented demonstrates that the Appellant authorized the payment of USD $200, which was made to a ZIMRA official. The distinction drawn between a facilitation fee and a bribe lacks legal significance. As held in National Battery (Pty) Limited v Matshoba, the essence of the misconduct is the act of unethical procurement. The principle of qui facit per alium facit per se applies, rendering the Appellant accountable for the payment she authorized. The evidence corroborated by WhatsApp messages further implicates the Appellant. Consequently, the court finds that there was no misdirection in the Appeals Officer’s findings on this charge. The Appeals Officer clearly did not err in upholding the conviction for paying a bribe to a ZIMRA official.

WHETHER THE APPEALS OFFICER ERRED IN UPHOLDING THE CONVICTION FOR BREACHES OF PROCUREMENT PROCEDURES.

The Appellant contended that the Respondent failed to produce evidence of unapproved Capex forms or cite specific provisions of the procurement policy breached. The purchases were made at the group level, with the necessary approvals from the CFO and ICT department. The Appellant argued that Capex forms could only be completed post-delivery to ensure quality assurance. Citing Mutsuta & Anor v Cagar (Pvt) Ltd, the Appellant submitted that the Appeals Officer misdirected himself by failing to appreciate these facts. The Respondent argued that the Appellant violated Section 5.4 of the procurement policy, which required Capex forms to be completed prior to purchases. It emphasized that employees are presumed to understand workplace rules, as held in National Battery (Pty) Limited v Matshoba. Further, the Respondent submitted that the Appellant exceeded her authority by varying the terms of the Memorandum of Understanding (MOU) without approval, committing the Respondent to an additional USD $29,480. This constituted insubordination, as held in Harmony Gold Mining Co Limited v CCMA and Innscor Africa v Gwatidzo SC 5/15. The evidence confirms that the Appellant breached procurement policies by failing to complete Capex forms and unilaterally varying the MOU terms. The internal audit report revealed that the cost of computers exceeded market rates,

further aggravating the misconduct. The Appeals Officer correctly found that the Appellant’s actions violated established procedures, jeopardized financial controls, and amounted to insubordination. He therefore properly upheld the decision of the Disciplinary Committee on the breaches of procurement procedures, There is no basis for this court, sitting as an appeal court, to disturb the findings on the facts and law.

WHETHER THE PENALTY OF DISMISSAL WAS HARSH AND DISPROPORTIONATE IN THE CIRCUMSTANCES.

The Appellant argued that the penalty of dismissal was harsh and disproportionate, given her clean disciplinary record and mitigating factors. Citing Coh Coh Enterprises (Pvt) Ltd v Mativenga & Anor, the Appellant submitted that dismissal is not automatic even for dismissible offenses. She highlighted that another employee, Patience Shiri, caused a USD

$100,000 loss but faced no comparable punishment. The Respondent contended that dismissal was justified, as the misconduct undermined the trust and fiduciary duty essential to the employment relationship. Citing Mutangadura v Turf Club SC 5/12 and De Beers Consolidates Mines Limited v Commission For Conciliation, Mediation And Arbitration (2000), the Respondent argued that dismissal is a rational operational response to such misconduct. It is indeed the position of the law that the issue of an appropriate penalty lies in the discretion of an employer. The penalty of dismissal imposed in this case must therefore be assessed against the seriousness of the misconduct and its impact on the employment relationship. There is no doubt that the Appellant’s actions in authorizing an unethical payment and violating procurement policies significantly undermined the trust bestowed upon her. It also exposed the Respondent to financial and reputational risks. While mitigating factors were indeed placed before the disciplinary committee, these were overridden by the gravity of the misconduct. A penalty of dismissal was clearly justified in the circumstances. There is therefore no basis for this court to interfere with the penalty imposed.

In the result the following order is granted: The appeal be and is