Claudius Munyikwa v Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/531/16
HELD AT HARARE 10 MAY 2016
CASE NO
JUDGMENT NO LC/H/531/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/531/16

HELD AT HARARE 10 MAY 2016				CASE NO LC/H/856/14

& 9 SEPTEMBER 2016

In the matter between:

CLAUDIUS MUNYIKWA				Appellant

And

CIVIL SERVICE COMMISSION				Respondent

Before The Honourable Hove, J

For Appellant			Z N Kamusasa (Legal Practitioner)

For Respondent		Ms C Siqoza (Civil Division)

HOVE J:

The appellant in this case was charged in terms of section 44 (2) (a) of the Public Service Regulations 2000 as read with paragraphs 8, 9 and 24 of the First Schedule to the Regulations.

When the allegations were preffered against him, the applicant admitted during the hearing that he had failed to bank school funds.  He stated that he had erred in failing to bank the school moneys.

The appellant’s lawyer argued before this court that the failure to bank was not equivalent to theft or embezzlement which the appellant had been charged with.  It was argued that the respondent ought to have preffered appropriate charges of failing to bank and not those of theft.  It was submitted in arguments that the respondent had failed to prove that appellant had stolen the money.

A look at the charges preffered is thus necessitated.  The charge was in terms of paragraphs 8, 9 and 24 of the 1st Schedule to the regulations.

Paragraph 8 reads as follows;

“Theft of, or failure to take reasonable care of or to account for, or making improper or unauthorised use of public moneys or the moneys of any statutory fund or local authority.”

Paragraph 9 reads as follows;

“Theft of, or failure to take reasonable care of, or making improper or unauthorised use of, state property or the property of any statutory body, statutory fund or local authority, including motor vehicles, or the failure to take adequate steps to ensure that reasonable case is taken of any such property, or failure to report at the earliest opportunity any loss thereof or damage thereto.”

Paragraph 24 reads;

“Any act or omission which is inconsistent with or prejudicial to the discharge of official duties, including,  the abuse of authority.”

The appellant admits to erring in failing to bank funds.  This in my opinion is an omission adequately covered in terms of the preferred charges.

The appellant in failing to bank as he was supposed to, failed to take reasonable care of public moneys.  That is covered in terms of paragraph 8 and 9.  He also was guilty of an act or omission which was inconsistent with the discharge of his official duties in terms of paragraph 24.

It was thus not necessary in terms of the preffered charges for the respondent to have proved theft.  The allegation was theft or failure to take case of or account for or an act inconsistent with the discharge of official duties. The argument raised on behalf of the appellant in this regard is without merit.

In any case, the allegations were that he had failed to account for the money.  The facts show that when the auditors come, he failed to account for the money at that time.  If the money was at the school and he had not banked it, there was no reason why he failed to bring the existence of the money to the attention of the auditors during the audit.  His actions of not telling the auditors that the money was available or showing the auditors the money was irrational and unreasonable and can only be explained on the basis that the money was not there, the appellant had stolen it.  Theft was proved.

It is a clear principle of law that;

“It is trite law that, in general in finding facts and making inferences in civil cases, the court may go upon a mere preponderance of probabilities, although in so doing does not exclude every reasonable doubt…

In civil … one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

It was thus proper in the circumstances of this case to find that the appellant was most probably guilty of theft by balancing probabilities.

This also includes the alleged failure to account for $210 by the appellant.  The money remained unaccounted for and was paid a year after the audit.  The probabilities are that he had stolen the money.

The argument that the appellant was acquitted in the criminal court and therefore he ought to have been acquitted in the civil proceedings is baseless.

The standard of proof in a criminal case is one beyond a reasonable doubt.  This is a higher standard.  But, in civil cases, the standard is much lower, it is that of a balance of probabilities.  As stated in the case of Govan v Skidmore 1952 (1) SA 732, the court in a criminal case must ensure that every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond reasonable doubt and inferences from facts must, in order to be permissible, be such as to leave no reasonable doubt of their propriety and correctness.

This is not so in civil cases.  Where inferences from facts can properly be drawn without the need to ensure that no reasonable doubt of their properly and correctness is left.  In casu, the hearing committee was well within its rights to infer that the non-production of the monies during the audit pointed to the guilty of the appellant.

The appellant admitted that he had not maintained proper books of accounts.  The commission could not have erred by finding him guilty of this offence which he admitted to.

His explanation only served to explain why he had committed the offence.  At best it could serve as a mitigatory factor and not a basis of finding him not guilty.

The penalty of dismissal cannot be said to be too harsh under the circumstances when the appellant had been found guilty of theft of public funds.  This clearly goes to the root of the contract of employment.  See in this regard the cases of Toyota Zimbabwe v Posi SC 55/07 Circle Cement (Pvt) Ltd v Chipo Nyuawasha SC 60/03.

In the Toyota case (supra) the court found that an employer had the right to dismiss an employee who is guilty of conduct which goes to the roof of the relationship.

The Deputy Chief Justice stated that;

“The position accords with common law principle that an employer is entitle upon convicting an employee of misconduct which goes to the root of the contract relationship to dismiss him.”

The position in law was so settled.

In the premises the appeal is found to be one without merit and must be dismissed with each party bearing its own costs.

Messrs Kamusasa & Musendo, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners