Chikomba Rural District Council v Lawrence Magwiroto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LCH67/24
HELD AT HARARE 7 FEBRUARY 2024
CASE NO. LC/H/89/21
AND 26 FEBRUARY 2024
IN THE MATTER BETWEEN:-
CHIKOMBA RURAL DISTRICT COUNCIL
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE    JUDGMENT NO. LCH67/24

HELD AT HARARE 7 FEBRUARY 2024    CASE NO. LC/H/89/21

AND 26 FEBRUARY 2024

IN THE MATTER BETWEEN:-

CHIKOMBA RURAL DISTRICT COUNCIL    APPELLANT

AND

LAWRENCE MAGWIROTO    RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant    Mr. H. Mutasa

For Respondent    Mr. T. Nyamucherera

MURASI J.,

This is an appeal against the decision of the Exemptions Committee of the National Employment Council for Rural District Councils.

The Facts

The Respondent was employed as a field officer by the Appellant. He was charged with fraud and after the internal hearing was dismissed from employment. Disgruntled with this decision, the Respondent appealed to the Exemptions Committee which set aside the decision of the hearing committee and reinstated him to his former position.

It is alleged that the Respondent misrepresented facts concerning monies that were due to the Appellant. He over mastered and under mastered amounts leading to the charge of fraud by the Appellant. The Appellant challenges the decision of the Exemptions Committee and reiterates that on a balance of probabilities, it proved that the Respondent was guilty of the charge of fraud. Accordingly the Appellant noted the following grounds of appeal:
 1. The tribunal a-quo grossly erred when it failed to determine that the presence of misrepresentation which potentially prejudiced the Appellant was sufficient to sustain the charge of fraud which had been preferred against the Respondent.

2. The tribunal a-quo grossly erred in determining that the Appellant’s failure to demonstrate how the Respondent would benefit from the aforesaid misrepresentation meant that the employer had failed to prove the charges that had been laid against the Respondent.

**Submissions by the Parties**

*Mr. Mutasa* submitted that the determination by the NEC was based on the fact that the Appellant had not shown how the Respondent could access the amounts in question. He stated that the under-mastering was common cause meaning that the information recorded was incorrect. He submitted that the issue for determination is whether Appellant needed to show how Respondent was going to access the money. He argued that this was not necessary. *Mr. Mutasa* further submitted that the misrepresentation was intentional and the further fact was that it was not the Respondent who raised the issue. In the result, it was argued that the Appellant had proved the matter on a balance of probabilities.

In response, *Mr. Nyamucherera* stated that regard should be had to the charge the Respondent was facing. He submitted the charge clearly stipulated that the act of misconduct included the element that the perpetrator should gain advantage from the particular enterprise. He stated that the intention must be shown to cause actual or potential prejudice. He argued that in the present circumstances, the Appellant was required to prove that the errors were intentional and that Respondent wanted to gain advantage. He argued that Respondent had produced before the NEC documents showing that all the money which had been erroneously recorded was actually in Appellant’s account and this had not been disputed by the Appellant during those proceedings. *Mr. Nyamucherera* argued that there was no evidence presented by the Appellant on how the Respondent was to access the amounts in question.


He also referred to the issue of over-mastering which was not explained by the Appellant as in those circumstances Respondent would be obliged to pay money to the Appellant.


The Law

First and foremost, it is trite to note that the standard of proof even where the alleged act of misconduct is of a criminal nature, is on a balance of probabilities. This was elucidated by the Supreme Court in *ZESA v Dera 1998 (1) ZLR 500 (S)*. This position was cemented in *Lawsign Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd SC 31/2013* at paragraph 3. See also *Zimbabwe Financial Holdings v Mafunga 2005 (2) ZLR 289 (S)*.

The offence of fraud with which the Respondent was charged is couched as follows:-

*Fraud: an employee commits fraud when he or she makes a false statement or claim whether in oral or written term and to make any false representation by word or conduct in order to obtain material advantage. Altering or attempting to alter fraudulent or false documents.*

See Section 8 (d) (ii) under the Second Schedule to the Collective Bargain Agreement Rural District Councils Statutory Instrument 87/2017.

In interpreting the code of conduct, McNally JA in *Coh Coh Enterprises (Pvt) Ltd v Mativenga & Another 2001 (1) ZLR 151 (S)* at 152 D stated that, obiter:

*We must bear in mind that codes of conduct, being often drafted by laymen, should not be over-strictly interpreted.*

The courts in interpreting a code of conduct have taken the approach that the golden rule must be applied and words given their ordinary grammatical meaning except where to do so leads to an absurdity so glaring that it could never have been the intention of the framers. See *Madoda v Tanganda Tea Co. Ltd 1999 (1) ZLR 374 (S)*.

Analysis

The term fraud is clearly defined in the Code of Conduct that is relied on by the Appellant. The Appellant through their Heads of Argument is of the view that to interpret the definition in its ordinary grammatical meaning would be remiss as this would lead to an absurdity. Hence where the Code of conduct uses the word *and*, it should be read or substituted with the word or. Thus, the golden rule of interpretation must apply.
 The following wise words in **Natal Joint Municipal Pension Fund v Endumeni Municipality** 2012 (4) SA 593 (SCA) are apposite:

“Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production.”

The provision itself is unambiguous. The ordinary meaning, therefore, should be accorded to the provision.

As far as the record is concerned, the following excerpts are pertinent in determining this matter. During the hearing before the Exemptions Committee, Appellant’s Legal practitioner stated as follows:

“The employer does not have to prove the actual advantage but the existence of a possibility to that effect.

There is a lot that has been said about the amount in the biller code but that does not help the appellant in any way. It does not exclude the possibility of missing funds. The matter should just end there,

The misstatement was a result of calculation. There is a probability that it could be an error and there is a probability that there could be fraud involved.”

What should be borne in mind that these submissions were made after the Respondent’s representative produced evidence of the Ecocash biller code which showed all the money receipted by the Respondent was in that account. **Appellant does not deny that indeed all the money receipted was in fact in the account.** Further, Appellant was not in a position to tell the Committee how the Respondent would access the amounts in question. All Appellant could state was that there was a ‘probability’ that Respondent could have accessed the amounts in question.

This brings me to the issue of ‘over-mastering and under-mastering’. ‘Over-mastering involved writing receipts which showed that money received by the Respondent was actually more than what was banked. In other words, the Respondent would be liable to make good from his pocket the difference between the money actually received and that reflected in the receipts. ‘under-mastering’ would be the opposite where money actually received would be more than what was reflected in the receipt books. I will proceed to examine two examples.

The record shows that on 7 July 2020, there was an ‘under-mastering’ of a total of

$250-00. Four days later, on 11 July 2020, there was an ‘over-mastering’ of an amount of $300-00. This example shows that as at 11 July 2020, the records showed that Respondent was liable to pay to Appellant the difference between the ‘over-mastering’ and the ‘under-mastering’ in the sum of $50-00. It was suggested by Appellant’s Counsel that this was how Respondent was scheming to prejudice the Appellant. However the averment is not logical. Why would Respondent ‘cook the books’ which would show that more money had been ‘received’ when this was not the position? In that scenario, he would be obliged to make good the difference!

From the above scenario, the record shows the following. Firstly, Respondent produced the Ecocash biller code which showed that all the money that was receipted was in the account. Secondly, Appellant was unable to state how the Respondent would access the amounts in the account. In fact Mr. Mutasa made the following submission:

“It is based on speculation, it will really be presupposed that because of this you have done ABC. I am not able to speculate as to how the enterprise was going to be unfolding. The material advantage does not have to materialize as long as it can be shown that the intention was to gain material gain then it can be read in that context.”

The Chairperson of the Committee had remarked thus:

“The code is clearly worded there has to be material advantage/gain. It could qualify as fraud if at the end of the day there is financial gain.”


In Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, it was held as follows:

"It follows therefore that where a party makes bald assertions not backed by evidence and the same are denied by the party against whom they are made, such bald allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value."

Appellant did not produce any iota of evidence showing that what Respondent had done showed that he had an intention to access the money that had been deposited in the account using the biller code. There was also no evidence that the Respondent accessed any of the amounts he had receipted. The inescapable conclusion is that Appellant only surmised that the ‘errors’ made by the Respondent could have been made with fraudulent intentions. Alas, it all ended there, being the subject of surmise and conjecture.

The issue of proof on a balance of probabilities has occupied the minds of many a court since time immemorial. L.H. Hoffmann and D.T. Zeffert in *The South African Law of Evidence*, Fourth Edition at pages 526 to 527 summarise this issue thus:

"Courts often speak of a ‘balance’ of probabilities, but the metaphor must be treated with care. The idea which this image conveys is that the party bearing the onus has to put sufficient evidence into his pan of the balance to make it outweigh the other. But this can be misleading. If the party who bears the onus produces some slight evidence in his favour, and the other party none at all, then metaphor suggests that his pan should go down. *But in fact the court may feel that the evidence is not sufficient to enable it to say that either party’s version is the more probable. It may even find that the contentions of the party who has produced no evidence are more probable, for example, when slight evidence suggesting the commission of a dishonest act is not enough to overcome the inherent improbability that the person in question would have done such a thing.* Thus courts have occasionally had topoint out that evidence does not have to be accepted merely because it is uncontradicted. What is being weighed in the balance’ is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.”


Having regard to the pleadings filed by the Appellant, it is evident that no evidence of a fraudulent misrepresentation was made. The Respondent wrote figures which were different from the amounts actually banked. However the correct amounts were banked in the Ecocash biller code. It is generally accepted that fraud, simply, is a misrepresentation made to another resulting in either potential or actual prejudice. The second ground of appeal hinges on the first ground. There was no misdirection on the part of the Committee.

In the result, the appeal ought to be dismissed. It is therefore ordered that:

1. The appeal is hereby dismissed for lack of merit.
2. The decision of the Exemptions Committee of the National Employment Council for Rural District Councils is hereby upheld.
3. Appellant to meet Respondent’s costs.

Gill, Godlonton & Gerrans- Appellant’s legal practitioners Lawman law Chambers- Respondent’s legal practitioners.
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