City of Harare v Tawanda Lesley Mandizha

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/31/2020
HELD AT HARARE, 02 JULY 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGEMENT NO. LC/H/31/2020

HELD AT HARARE, 02 JULY 2015                               CASE NO. LC/H/808/13

AND 14 FEBRUARY 2020

In the matter between:-

CITY OF HARARE						Appellant

And

TAWANDA LESLEY MANDIZHA			Respondent

For Appellant		Mr. C. Kwaramba (Legal Practitioner)

For Respondent		Mr E. Jera (Legal Practitioner)

CHIVIZHE, J:

INTRODUCTION

There has been an undue delay in the handing down of this judgement. This was due to circumstances beyond the Judge’s control as the Judge fell ill and created a backlog. The court extends its most sincere apologies to the parties for the delay. The following is the judgement in the matter.

This is an appeal against an arbitral award handed down by Professor L. Madhuku on 20th August, 2013. The Arbitrator in his award found that the dismissal of Respondent was unfair and therefore the Appellant had to reinstate him without any loss of salary and benefits with effect from the date of dismissal. In the alternative the Appellant was directed to pay Respondent damages the quantum of which was to be agreed to by the parties within fourteen (14) days of the award. In the event of parties failing to agree on the quantum of damages the matter was to be set down before the tribunal by either of the parties for quantification of the damages payable.

PRELIMINARY POINTS

The parties had each taken a point in limine. The Appellant had taken a point in limine that the court had to determine first its application for stay of execution of the arbitral award. The Respondent on the other hand had taken the point that the Appellants Heads of Argument had been filed out of time and in clear breach of Rule 19 of the Labour Court Rules then. On the date of hearing of the matter both parties consented to the abandonment of the points in limine taken and the hearing of the matter on the merits. The preliminary points taken are accordingly struck out of the proceedings.

BACKGROUND FACTS

The Respondent was employed by the Appellant as a Valuation Technician from the 1st of September 2003. In January 2013 he was charged and dismissed from employment on allegations of corruption. The Respondent was dissatisfied. He noted what was essentially an appeal against both conviction and penalty. The matter was heard before Arbitrator Professor L. Madhuku. The simple issue referred for determination was

“Whether or not Tawanda L. Mandizha was unfairly dismissed, if so the remedy therefore’’

The record of proceedings contains the written submissions made by the parties before the Arbitrator. The Arbitrator did not capture the oral submissions by the parties made before him. The Arbitrator in his award zeroed in on the pertinent issues placed before him as to whether or not there was unfair dismissal. He found that Respondent had been unfairly dismissed. He consequently directed reinstatement or in the alternative damages in lieu of reinstatement. The Appellant was aggrieved and noted an appeal against the arbitral award.

THE APPEAL

The appeal has been noted on the basis of two simple grounds which are as follows;

“GROUNDS OF APPEAL

The Arbitrator erred at law by holding that the dismissal of the Respondent was unfair because it was unsafe for the Disciplinary Committee to convict the Respondent exclusively on evidence of one witness and two recordings yet the evidence before the Disciplinary Committee was sufficient for the Disciplinary Committee to convict the Respondent.

The Arbitrator’s award is so unreasonable and outrageous in its defiance of logic to constitute a ground of appeal. “

The Appellant’s prayer is that should the court find merit in the appeal then the arbitral award handed down on 20th August 2013 should be set aside and substituted with an order in the following terms

“1. The dismissal of the Respondent was fair”

WHETHER THE ABITRATOR WAS CORRECT IN FINDING THAT RESPONDENT WAS UNFAIRLY DISMISSED.

The first point raised by the appeal ground number 1 was that the Arbitrator erred at law when he found that the dismissal of the Respondent was unfair because it was unsafe for the Disciplinary Committee to convict Respondent exclusively on the evidence of one witness and two recordings. The Appellant submission was that the Arbitrator ought to have found instead that sufficient evidence had been led before the Disciplinary Committee. The Appellant made the further submission that it was in any event competent for a court of law (even a disciplinary committee) to rely on evidence of a single witness in order to find conviction on the charges levelled as long as the single witness is competent, reliable and unbiased. The Appellant relied on Rex vs Mokena (1932) OPD 79 and A.P.O David in his book The Law of Evidence in South Africa, Juta and Co Limited 1963 at page 136.

In elaboration of the ground, Mr. C. Kwaramba submitted that the Arbitrator in this case misdirected himself at law as he misapplied the law regarding the sufficiency of single witness evidence to find a conviction. He further submitted that the Arbitrator also erred in that he failed to assess the evidence given by the single witness in order to determine it’s sufficiency, credibility etc. Mr. Kwaramba also submitted that the Arbitrator erred by placing a higher burden on the Appellant to discharge. The burden to prove in civil proceedings was and remained on a balance of probabilities. The Arbitrator by finding that more evidence had to be led was essentially raising the burden of proof to beyond a reasonable doubt which was highly improper. The Arbitrator ought to have found based on the evidence presented by the single witness, Mr. Chapwanya, that the Respondent had been properly convicted on the charges. Mr. Kwaramba further submitted that the Arbitrator sitting as he was as an Appellate Authority his duty was not as a trier of facts. He was not sitting as a primary court. He also did not have the benefit that the Disciplinary Committee had of hearing and assessing the witness evidence. The Arbitrator therefore was not in a position to find as he did that the evidence of Mr. Chapwanya was unbelievable. Mr. Kwaramba then took the court through the record of proceedings before the Disciplinary Committee. His submission was on the basis of the evidence led before the Disciplinary Committee the Arbitrator was clearly wrong when he found the evidence to be insufficient or not credible. The Arbitrator had also failed in his award to give reasons for the conclusion reached. On this basis his award clearly stood to be set aside.

The Respondent’s position in regards the first ground of appeal was that the ground of appeal was misconceived. The Arbitrator had not found that it was unsafe to convict the Respondent on the basis of evidence of a single witness. Rather his finding was based on the fact that the Appellant had not discharged the burden of proof on it which burden was on a balance of probabilities. This according to Respondent was very clear from a reading of the award itself. The award showed that Arbitrator had properly analyzed the facts/evidence before him. The Arbitrator had then made two critical findings that; firstly the tape recordings contained no unambiguous assertion of the receipt of a bribe by Respondent, secondly that the Respondent conduct was neither unreasonable nor improbable.

In regards the issue of single witness evidence Respondent’s position was that the Arbitrator was correct in his conclusion reached. The position of the law was as captured in Dannybay vs The State HB/66/10 that a trial court is entitled to convict on the basis of a single witness evidence the only rider being that the evidence must be clear and satisfactory in every material matter respect. The Respondent’s further position was that the Labour Court in South Africa had since accepted that provisions of their Civil Evidence Act also applied to Labour matters. Reference was made to Baroworld Coachworks Wynberg vs Motor Industries Bargaining Council and Others 2009 ZALC 50. A similar provision was also said to be found in the Zimbabwean Civil Evidence Act [Cap 8:01) section 52.

Mr. Jera, for Respondent, in oral submissions elaborated on the points taken in Heads of Argument. He emphasized that the Arbitrator had correctly attacked the findings by the Disciplinary Committee on the basis that the evidence led by Mr. Chapwanya was inadequate, that the recordings did not establish that Respondent had admitted to receiving the bribe. On this basis therefore the award had been correctly arrived at and the court could not interfere with it.

ANALYSIS/FINDINGS

The Arbitrator in this case was sitting as an Appellate Authority. When the dispute was referred to arbitration the issue for determination was ‘whether or not the Appellant had unfairly dismissed the Respondent’. The Arbitrator’s role was to determine whether Appellant had correctly found the Respondent guilty and imposed the dismissal penalty in view of the evidence filed of record. It is therefore apparent the Arbitrator was dealing with the record of proceedings as well as the evidence placed before the Disciplinary Committee. It was not the duty of the Arbitrator to determine whether the Respondent committed the offense. See Fraser Muyaka vs Bak Logistics (Pvt) Ltd SC 39/17. His duty was to find based on the evidence filed of record whether the Appellant had correctly found the Respondent guilty on the charge of corruption. It is also clear that the Arbitrator could not make findings of fact in his award.

The Arbitrator in his award came to the following conclusion;

“The arbitral tribunal has analysed all the circumstances surrounding the making of the alleged statements. This has involved going through all the minutes of the Disciplinary Committee and paying particular and regard to the evidence in chief and the cross-examination. The conclusion is that the explanation by the claimant is neither unreasonable nor improbable. The Respondent has not discharged the burden of proof on a balance of probabilities. It is very unsafe, on a balance of probabilities, to convict the claimant exclusively on the evidence of one witness and his two recordings, which as already indicated contained no unambiguous assertions. The claimant should not have been found guilty. Accordingly there was an unfair dismissal”

The Arbitrator in this case was clearly aware of his role i.e. to determine whether the Respondent had been properly found guilty on the charge. He also was aware that he had to assess the facts and evidence based on the record of proceedings before the Disciplinary Committee. The Arbitrator through his finding that dismissal was unfair because it was unsafe for Disciplinary Committee to convict exclusively on the basis of evidence of one witness and the two audio recordings clearly erred at law. It is indeed the correct position of the law that it is competent for a court of law (including proceedings before Disciplinary Committee) to rely on evidence of a single witness and convict the accused on the basis of that evidence as long as that witness is competent, reliable and unbiased.

The court was aptly referred by Appellant to the case of Rex vs Mokena (1932) OPD 79, where De Villers JP said;

“This section (section 284 of the South Africa Code) should only be relied upon where the evidence of a single witness is clear and satisfactory in every material respect, and ought not to be evoked where, for instance, the witness has an interest or bias adverse to the accused, when he has made a previous inconsistent statement where he contradicts himself in the witness box and where he has not had proper opportunities for observation etc”

Although the statement was made in the context of a criminal case it is the court’s view that the position applies equally to civil matters including disciplinary matters where the burden of proof is much less than in a criminal case. The court was also referred by Appellant to A.P.O’ Dowd in his book The Law of Evidence in South Africa, Juta co Ltd 1963 at page 136 where he stated;

“In most primitive systems of law, great importance was attached to the number of witnesses called by a party. There were various rules calling for cases of a particular kind, or against particular persons, to be proved by a particular number of witnesses, or providing that a greater number of witnesses must prevail against a smaller number.

Modern law has for the most part abandoned this approach. The rule of our law is that quality is more important than quantity in determining the weight of evidence”

The Respondent himself also referred the court section 52 of the Civil Evidence Act [Cap 8:01] which provides as follows;

“Subject to any other law, a court may make a finding and base its decision on the evidence of a single competent and credible witness.”

Although no case authorities were available from this jurisdiction the court was persuaded to take the approach as taken in neighboring South Africa where provisions in their Civil Evidence Act were found to have application in Labour disputes. See Barroworld Coachworks Wynburg vs Motor Industries Bargaining Council and Ors 2009 ZALC 50. It is the Court’s finding that section 52 of the Civil Evidence Act [8:01] indeed has application in Labour disputes. In the circumstances of this case therefore it was proper for the Disciplinary Committee to have convicted Respondent on the basis of the evidence of the single witness Mr. Rugare Nicodimus Chapwanya.

The Arbitrator however had gone further to attack the evidence of the witness as well as the recording on the basis that the evidence was insufficient to garner a conviction on the charge. His basis was that there has been no unambiguous assertion that the Respondent had received the bribe. The charge that was levelled against Respondent was that of corruption which is provided under section 11 5c of the Appellant code. The charge is defined as follows;

“An employee is involved if he or she takes bribe or abetting or aiding corruption in order to do someone a favour on a matter related to the employee’s or other employee’s duties.”

The Appellant led evidence during the disciplinary hearing from Mr. Chapwanya referred to above. His evidence was to the effect that he had met Respondent in Mr. Mutambanashe’s office where he was making a follow-up on his application for a lease. The Respondent had then invited Mr. Chapwanya to his office where they exchanged phone-numbers. They had after that met over lunch where Respondent had asked for a bribe in the sum of US$ 1 500.00 which the witness had paid to him in three installments. The witness evidence had been collaborated by two recordings between the witness and the Respondent. The witness indicated that the first recording on the 13th December 2012 he had called Respondent to seek a way forward when his car sales had been demolished by Council. In that recording the witness had said words to the effect that

“After macents (money) ese aya madhara enyu haana zvaakaita here?”

Respondent was said to have responded by saying “ahh madhara enyu handichatombozivi kuti akaita sei”. The Respondent the asked Mr. Chapwanya “Hapana vamwe vapfanha vamakapa mari here?” and Mr. Chapwanaya replied “Hapana takangopa iwewe chete”.

In the second recording of 17th December 2012 this recording was done after Respondent had already been summoned to the Audit Division of the Appellant to answer to allegations of receiving a bribe. In that recording Respondent appeared to be evasive.

The Arbitrator in his award found that the evidence was insufficient as there was no unambiguous assertion of Respondent receiving the bribe. The Respondent before this court agreed with the Arbitrator that evidence ought to have been led to prove money exchanging hands between Mr. Chapwanya and the Respondent. The Respondent further submission is there was no assertion in the phone recordings that he had indeed received money from Mr. Chapwanya. On this basis the charge was not proved and the Arbitrator was therefore correct.

The court’s finding on this point is that the Arbitrator clearly erred in the conclusion reached. The evidence led by Appellant was indeed sufficient to found a conviction on the charge. It was clear from the evidence led that Respondent had entered into some unofficial relationship with Mr. Chapwanya where they had exchanged phone-numbers. This was against a background where Mr. Chapwanya was looking for a car sales lease, where Respondent himself was not even involved in the application, he however had obtained Mr. Chapwanya number and they had even met to have lunch. The Respondent motive for entering such a relationship was clearly suspicious. The first recording also referred to the issue of money exchanging hands. Mr Chapwanya referred to ‘macents’. The Respondent did not deny ever being given the money.. Neither did he question the aspect of exchange of money if he indeed was ignorant of the transaction. This clearly showed that he had indeed received the bribe from Mr. Chapwanya. The approach taken by the Arbitrator that there ought to have been an unambiguous assertion of the receipt of the bribe is not an essential element to prove the charge. The Disciplinary Committee was certainly correct when it arrived at a conviction of guilty on the basis of the evidence of single witness and the recordings. The charge had been established on a balance of probabilities. The Arbitrator on the other hand misdirected himself in the conclusion reached which conclusion was based on his own interpretation of the words and sentences used in the recordings.

WHETHER THE AWARD WAS SO UNREASONABLE AND OUTRAGEOUS IN ITS DEFIANCE OF LOGIC.

The Appellant raised as its second ground of appeal that the award by the Arbitrator was unreasonable in the sense of being so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion. In order for one to succeed on this ground which is based on the celebrated case of Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S) an Appellant has to establish that the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection.

It is also settled that an Appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, to put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong. See Zinwa vs Joseph Mwoyounotsva SC 28/2015.

The Arbitrator in this case was sitting as an Appellate tribunal. It is clear that acting in that capacity he could not set aside findings of fact made by the Disciplinary Committee unless such findings were so irrational that no reasonable tribunal applying its mind to the same facts would arrive at the conclusion reached.

It is very apparent from the perusal of the award that the Arbitrator did fall into an error of law. Firstly he did not conduct an exercise to assess the evidence. He basically found that the evidence by Mr. Chapwanya and the phone recordings was inadequate. He however proffered no explanation as to why he believed the evidence was insufficient. If he was attacking the credibility of Mr. Chapwanya as a witness he ought to have explained himself as to why he considered the evidence as not credible. The Arbitrator in his award also found the Respondent explanation for the circumstances to be credible and not unreasonable. Again there was no explanation as to why Respondent evidence was considered to be more credible than Mr. Chapwanya evidence. The Arbitrator also made a finding that there ought to have been an admission by the Respondent that he had accepted the bribe. The Respondent was facing a charge of corruption. The issue that arises is whether it was necessary for the Appellant to have led evidence to prove an admission by Respondent that he indeed received the bribe. As indicated earlier this was not necessary. The Arbitrator was clearly placing a higher burden on the Appellant to prove its case. Disciplinary matters falling as they do in the realm of civil matter the burden of proof remains on the balance of probabilities. The Appellant had clearly discharged the onus on it in this case.

The Arbitrator also reached a conclusion that it would be unsafe to convict Respondent exclusively on the basis of evidence of one (1) witness and two (2) recordings. Once again there was no explanation from the Arbitrator as to why it was unsafe to convict.

Finally in order for the Arbitrator to interfere with the findings by the Disciplinary Committee he had to necessarily address himself to the findings made by Disciplinary Committee. This meant that he had to analyze all the evidence adduced at the disciplinary hearing then the findings by the Disciplinary Committee before arriving at the conclusion that Respondent was unfairly dismissed. The Arbitrator in his award merely stated that the Respondent had not discharged the burden of proof on a balance of probabilities and therefore the Respondent should not have been found guilty. There were no further reasons given for the interference with the Disciplinary Committee findings. In order for him to interfere he had to find an irregularity in the decision of the Disciplinary Committee. In the absence of such finding he clearly could not interfere with the findings.

It is however apparent from the evidence led before the Disciplinary Committee that the Appellant did establish that Respondent was guilty of the charge of corruption. It was therefore not the duty of the Arbitrator to interfere with the findings unless there had been a misdirection or irrationality which the Arbitrator did not find in this case. The Arbitrator was clearly wrong therefore in his finding that Respondent was unfairly dismissed where the evidence clearly proved he was guilty.

The appeal clearly ought to succeed, therefore. It is accordingly ordered as follows;

The appeal be and is hereby upheld with costs.

The arbitral award handed down on 20th August, 2013 be and his hereby set aside.

The determination by the Disciplinary Committee finding Respondent guilty of corruption and imposing the dismissal penalty is hereby upheld.

The Respondent shall remain dismissed from employment.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Moyo and Partners, respondent’s legal practitioners