Brighton Saruchera v Clover Leaf Motors Group

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/79/2016
HARARE, 9 NOVEMBER 2015 &
CASE NO LC/H/338/2015
19 FEBRUARY 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/79/2016

HARARE, 9 NOVEMBER 2015 &		                               CASE NO LC/H/338/2015

19 FEBRUARY 2016

In the matter between

BRIGHTON SARUCHERA						APPELLANT

Versus

CLOVER LEAF MOTORS GROUP					RESPONDENT

Before the Honourable E Makamure J

For the Appellant	M Mareanadzo (Legal Practitioner)

For the Respondent     G Jakuosi  (Legal Practitioner)

MAKAMURE J:

The appellant was employed by the respondent as a branch manager at its Mutare Branch. Through his recommendation an order was made and resulted in the respondent company losing money in excess of two hundred and twenty one thousand United States dollars.

The recommendation turned out to have emanated from a fraudulent deal. The appellant was unaware of the fraudulent nature of the transaction. He was thereafter charged with gross incompetence/inefficiency and was dismissed as a result. His internal appeal failed.

He appeals to this court on the basis that there was no sufficient evidence against him. However the earlier tribunal found the appellant not to have applied himself to duty properly in that he did not exercise due diligence. In the circumstances he was found negligent in the conduct of his duty. The appeal tribunal upheld the dismissal verdict.

It appears common cause that the appellant did not exercise due diligence in how he handled the order in question. The circumstances are that an order was allegedly generated by one P Mabasa from Murowa Mines. The appellant’s senior manager recommended it. The appellant in turn recommended to senior management without personally checking the credentials of this P Mabasa or his position at Murowa. This resulted in the loss.

It is clear on a balance of probabilities that the appellant as the responsible authority ought to have checked before making any recommendation. Thus he cannot say that the earlier tribunal erred. In Passmore Malimanjani v Central Africa Building Society (CABS) SC 47-07, the Supreme Court stated that:

“It is trite that an appeal court does not interfere with the exercise of direction by a lower court unless it is shown that the discretion was improperly exercised.”

In Bambe v Bambe SC 91-02 the Supreme Court stated that:

“‘…. unless the decision is clearly wrong it cannot be interfered with …’  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appellate body is entitled to interfere.” (See also Bellenden v Satterthwaite [1948] ALL ER 343 at 345 BC)

I respectfully associate myself with the above sentiments. I am of the view that the Managing Director as the appellate body exercised his discretion properly.

I therefore find that this court cannot interfere with the decision being appealed. The appellate court should be cautious in interfering with earlier decision and should only interfere where there has been a gross misdirection.

I am unable to say that the appellate body grossly misdirected itself.

In view of the foregoing I find that there is no merit in the appeal. The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Muringi Kamdefwere, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners