Conwell Mujuru v Broadcasting Authority of Zimbabwe

### Preamble
JUDGMENT NO. LC/H/334/24
IN THE LABOUR COURT OF
CASE NO. LC/H/788/22
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 10 JULY 2024

AND 14 AUGUST 2024

IN THE MATTER BETWEEN: -

JUDGMENT NO. LC/H/334/24 CASE NO. LC/H/788/22

CONWELL MUJURU	APPELLANT

AND

BROADCASTING AUTHORITY OF ZIMBABWE	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Appellant	Mr. C. Macheka

For Respondent	Mr. M. Moyo

MURASI J., BACKGROUND

Appellant was in the employ of the Respondent as Finance and Administration Director. Allegations of misconduct were levelled against in terms of the National Code of Conduct, that is, contravening section 4 (a), it being alleged that he was guilty of gross incompetence or inefficiency in the performance of his duties. The brief allegations were that Appellant had presented a financial report containing incorrect information which was calculated to mislead Respondent’s Board. In the hearing several witnesses were called to testify against the Appellant. It is important to make the observation that none of the witnesses gave any evidence to demonstrate that the financial statements allegedly produced by the Appellant contained any errors. It was the Hearing’s finding that Appellant’s statement in response to the charges levelled against him amounted to evidence against him. The Hearing Officer also made the finding that Appellant’s attitude in not cross- examining some of the witnesses was an acceptance of the evidence and the charges.

The appellant is dissatisfied with the outcome and has approached this Court for relief. The Appellant initially filed six grounds of appeal, however, Mr. Macheka indicated that Appellant was abandoning the fourth and fifth grounds of appeal. The remaining grounds of appeal are as follows:

The Chairperson of the disciplinary committee grossly erred and misdirected himself in making a finding that the Appellant was grossly inefficient in the performance of his duties

in circumstances where the allegations were not supported by any evidence led in oral testimony.

The Chairperson of the disciplinary committee grossly erred and misdirected himself in shifting the burden of proof to the Appellant, especially on the charge of gross inefficiency arising from an alleged presentation of a financial report with errors when the Employer had led no evidence to prove the allegations.

The Chairperson of the disciplinary committee grossly erred and misdirected himself in making a finding that the Appellant had failed to remit statutory payments and medical aid, he was grossly inefficient, when in actual fact, the entity had no money to make the payments.

The Chairperson erred and misdirected himself in imposing a penalty of dismissal in circumstances where dismissal was unwarranted.

PRELIMINARY ISSUES

Mr. Macheka brought to the attention of the Court that Respondent’s Counsel had proceeded to file documents on the date of the hearing which was unprocedural in the circumstances. Mr. Moyo conceded that this was indeed the case and stated that he had intended to make an application for leave to file the documents in the hearing. Mr. Moyo did not comply with the Rules. There is need for legal practitioners to abide by the prescribed rules. It is also clear that filing documents on the hearing date would obviously cause inconveniences to both the Appellant and the Court. The Court determined that the documents were improperly before the as prescribed in Rule 26 of the Labour Court Rules, 2017 and proceeded to expunge those documents from the record.

Mr. Moyo raised the point that Appellant’s grounds of appeal did not raise points of law and that consequently the appeal should be dismissed. The Court stated that its ruling on matter would form part of the main judgment. The Court will proceed to address the issue as follows. What is clear from the submissions made by Mr. Moyo is that most legal practitioners seem not to be aware of the provisions of the Labour Act as regards this particular issue. Sections 98 (10) and 92 F (2) require grounds of appeal to raise points of law. Most appeals made in terms of Employment Codes of Conduct are made in terms of section 92 D of the Act. A reading of that section shows that such an appeal can raise both points of law and issues of fact. These are permissible as long as the grounds of appeal meet the requirement that they are concise and precise. In the result, Mr. Moyo’s preliminary point in this regard ought to be dismissed.

THE APPEAL

Mr. Macheka submitted that the Hearing Officer erred in finding the Appellant guilty of being grossly inefficient when no such evidence was adduced in the disciplinary hearing. He further submitted that no evidence was proffered to show that the financial report presented by the Appellant was fraught with incorrect figures. Mr. Macheka argued that no evidence was given to show any actual or potential prejudice which was occasioned by Appellant’s alleged wrong doing. He drew the attention of the Court to the fact that the Hearing Officer had shifted the burden of proof to the Appellant in that he leaned heavily on the Appellant’s written statement in response to

the charges. He submitted that this was against the renowned principle that he who alleges must prove.

As far as the third ground of appeal was concerned, Mr. Macheka stated that Respondent did not produce evidence or call witnesses to show that the company was financially stable. He further stated that one Toriro was the one who was supposed to inform the hearing Officer that the company had money but that the Appellant had failed to make the payments to CIMAS and other statutory payments.

Inn response, Mr. Moyo stated that the crucial issue being raised by the Appellant was the adequacy of the evidence. He submitted that the issue of whether the evidence showed that the Appellant had been grossly inefficient was a factual one. He further submitted that this being a factual issue, the only basis for interference by an appellate court be that the tribunal a quo’s decision was irrational. Mr. Moyo stated that Respondent premised its findings based on admissions made during the hearing. To this end, he referred the Court to page 33 of the record as recorded in Appellant’s written response to the allegations. Asked by the Court whether any documentary evidence was produced during the hearing, Mr. Moyo responded in the negative. He also added, after inquiry by the Court, that the witnesses called to testify did not give evidence about gross inefficiency and that it was “not necessary to prove that he was guilty of that because of the averments on page 33.” Mr. Moyo further argued that it was not necessary to call an expert and that the evidence of the witnesses supported the finding of guilty. He further submitted that the Appellant had admitted that his report was erroneous, and he had a responsibility to check his subordinates’ work.

ANALYSIS

It is my view that there are two issues for determination in this appeal. The first is whether Respondent adduced enough evidence to prove on a balance of probabilities that the Appellant was guilty of gross incompetence and inefficiency. The second issue is whether the Hearing Officer indeed placed the burden of proof on the Appellant.

Respondent’s Counsel referred to the well -touted precedent in Barros v Chimphonda and Another 1996 (1) ZLR 58 (S). This case outlines the clear principle that an appellate court can only interfere with a decision of a lower court or tribunal where there is evidence of a misdirection. Put differently, the appellate court must be satisfied, not only that there was no evidence upon which the decision could be based, but also where the evidence, although present, was so inadequate that no finding could reasonably be based thereon. In other words, it must be clear that no person properly applying his mind to the issue could reach such a conclusion. The decision must be irrational. (See also Nyoni v Secretary for Public Service, Labour and Social Welfare and Anor 1997 (2) ZLR 516 (H)).

In Sable Chemical Industries Limited v David Peter Easterbrook SC 18/10, it was held as follows:

“The position is also settled that a serios misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure and determine according to law.”

Further, in Reserve Bank of Zimbabwe v Corrine Granger and Anor SC 34/01, kit was also held as follows:

“And a misdirection of fact is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

The first issue is whether there was enough evidence placed before the Hearing Officer to enable that Officer to return a verdict of guilty. A reading of the Hearing Officer’s findings shows the following. In paragraph 35 the Hearing Officer states as follows;

“An analysis of the Employee’s defence shows that he wants to shift the blame to a subordinate.”

Paragraphs 35 to 40 relate to the Employee’s defence as contained in the Appellant’s written response and his evidence before the hearing Officer. Crucially, there is no reference to any evidence  adduced by the Employer to  prove the allegations  levelled  against  the Appellant. CHIWESHE JA in National Foods Limited v Martin Jongwe and Anor SC80/24 referred to the case of Groeneweld N.O. and Anor v Swanpoel 2002 (6) SA 729 where it was stated as follows:

“It hardly needs stating that a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in court constitutes a serious misdirection.”

My view is that the Hearing Officer was supposed to refer to the evidence adduced by the Respondent during the hearing to determine whether the allegations had been proved on a balance of probabilities.

This brings me to the reliance made by the Hearing Officer on the Appellant’s written response to the allegations. Indeed Mr. Moyo stated in oral submissions that there was no need to adduce further as this written response was an admission by the Appellant. Was it proper to rely on the Appellant’s written response as an admission? The facts militate against making such a finding. The record shows that Appellant pleaded Not Guilty and gave a defence. His Founding Affidavit shows a refutal of the allegations preferred against him. He only admitted to typographical errors. This, in my view, cannot amount to an admission as contemplated in section 36 of the Civil Evidence Act. The question is, whence did the evidence relied upon by the Hearing Officer come from? The record of proceedings does not contain such evidence. Indeed, there was an admission by Mr. Moyo that the witnesses who testified did not give any iota of evidence as regards the issue of gross incompetence or inefficiency.

This brings me to the Hearing Officer’s interpretation of the principle of burden of proof. This is what the Hearing Officer had to say:

“Balance of probabilities means that on the basis of evidence submitted, it is more likely than not that the employee is guilty. It is not necessary to prove 100% guilt; 51% or more evidence is sufficient for the chairperson or presiding officer, after having examined evidence from both sides, to be able to say whether the accused employee is probably guilty or probably innocent.”

The issue of awarding percentages is incorrect. How are percentages arrived at? Law is not an exact science. How would one apportion percentages as in an mathematical problem? The Hearing Officer states that there is need to hear evidence from both sides. The principle was adequately laid down in Early Bird Farms (Pvt) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) where it was stated as follows:

“When determining whether or not an employee is guilty of misconduct the test which should be applied is whether the version of the party who bears the onus of proof (Employer) can be believed pr not. The process involves comparing the version of both parties to determine which version is more probable.”

In casu, the Hearing Officer did not have the advantage of ‘comparing two versions’. As admitted by Mr. Moyo, the Respondent version was missing. The Hearing Officer ended up ‘comparing’ the Appellant’s version against itself! I have elsewhere in this judgment made the observation that the Appellant’s written response to the allegations did not amount to an admission as contemplated in section 36 of the Civil Evidence Act. This therefore means that the Hearing Officer did not have evidence on whether the Appellant was guilty of gross incompetence or inefficiency. It is my view that in the circumstances, it will not be necessary to advert to the other issue.

In the result, the appeal must be allowed. The following Order is appropriate:

The appeal is hereby allowed.

The decision of the Hearing Officer finding the Appellant guilty culminating in his dismissal is hereby set aside.

The Appellant is hereby reinstated to his former position from the date of dismissal without loss of salary and benefits.

If reinstatement is no longer possible, the Appellant shall be entitled to damages in lieu of reinstatement which damages may be agreed upon by the parties failure of which either party may approach this Court for quantification.

Respondent to meet the Appellant’s costs.

Nyamundanda & Mutimudye Attorneys-	Appellant’s legal practitioners Dube-Banda, Nzarayapenga & Partners-	Respondent’s legal practitioners.