Delta Beverages (Private) Limited v Clever Mabvuu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT, NO LC/H/370/25
HELD AT HARARE
CASE NO LC/H/774/25
2 OCTOBER 2025 & 9 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT, NO LC/H/370/25

HELD AT HARARE	CASE NO LC/H/774/25

2 OCTOBER 2025 & 9 OCTOBER 2025

In the matter between: -

DELTA BEVERAGES (PRIVATE) LIMITED	APPELLANT AND

CLEVER MABVUU	RESPONDENT

Before the Honourable Tsikwa, J:

For Appellant: K. Ncube (Legal Practitioner)

For Respondent: E. Rusere (Trade Union Official)

TSIKWA, J: This is an appeal in terms of Rule 19 of the Labour Court Rules, 2017 against the

arbitral award by Honourable Arbitrator T.P Ruziwa issued on 5 August 2025. The background facts of the matter are as follows:

BACKGROUND FACTS

The respondent was employed by the Appellant as a Process Attendant. His ordinary duties

included the checking of raw material levels, among others. On 19 of June 2024, the respondent was requested by his superiors to temporarily conduct the duties of a receiving clerk. His role on the day involved preparing and signing a ‘Goods Received Voucher’ (‘GRV’) after confirming

receipt of goods from the supplier. On the day in question, the appellant was to receive a load of 30,360 tonnes of maize. The truck ofloaded all of the compartments except for one which contained approximately 5 tonnes of maize. The respondent wrote on the GRV that the

appellant had received the full complement of 30,360 tonnes of maize, with ‘a loss’ of only 1 tonne.

The appellant alleges that this was part of a scheme involving its employees and the drivers of some of its suppliers to steal supplies from it and make it pay for all supplies ordered.

Consequently, the respondent was charged with ‘uttering a false document’ in terms of

Annexure II class 1.1 of the Delta Beverages Code of Conduct. The respondent admitted having authored the document but argued that he was not guilty because he was performing a

temporary duty on the day and was unfamiliar with the standard operating procedure and job description of the role.

A disciplinary hearing was held at the Immediate Superior Level, and he was found guilty as charged and subsequently dismissed from employment. He appealed to the Head of

Department Level in the workplace with the same result. He also appealed to the Works Council Level and that appeal was also dismissed. Upon approaching the NEC for conciliation, the

matter was referred for compulsory arbitration. The arbitrator found in favour of the respondent and held that the respondent’s conduct was excusable given that he was on a

temporary assignment without proper role delegation. He further held that the responsibility of verifying the ofloaded quantities rested with ‘other employees. Aggrieved by the award, the

appellant lodged the present appeal against the decision of the arbitrator.

GROUNDS OF APPEAL

The arbitrator erred in interfering, without a substantive basis, with the findings of fact made by three domestic tribunals even where no misdirection on the facts was alleged by respondent or was otherwise demonstrable.

The charge levelled against respondent having pertained to his unexplained recording of an objectively established basic falsehood as well as the utterance thereof, the arbitrator erred in concluding that respondent could be excused from its consequences on the basis that he had not received formal training.

The arbitrator erred at any rate in finding that respondent had made an honest mistake when such was not his case and when on the evidence the recording of a falsehood and its utterance could not be a mistake at all.

The arbitrator erred at any rate in not finding that the defence put forward by respondent amounted to a concession of wrongdoing and was such as could not repair the breakdown in the relationship caused by respondent's misconduct.

RELIEF SOUGHT

The appellant’s prayer is for an order that:

That the appeal succeeds with costs.

That the arbitration award of T.P Ruziwa is set aside and in its place is substituted the following:

"The appeal is dismissed.” The respondent prays that:

The appeal be dismissed

The court upholds the Award by Honourable Arbitrator T.P in its entirety.

ISSUES FOR DETERMINATION

Whether or not the arbitrator erred in finding that lack of formal training excused the respondent from the allegations of misconduct

Whether or not the arbitrator erred in finding that the respondent made an honest mistake

Whether or not the respondent’s defence amounts to a concession of wrongdoing.

Whether there was sufficient evidence on a balance of probabilities to prove the misconduct.

APPLICATION OF THE LAW

Whether or not the arbitrator erred in finding that lack of formal training excused the respondent from allegations of misconduct?

The appellant submitted that the arbitrator erred in finding that the lack of formal training excused the respondent from the allegations of misconduct. According to the appellant, the

temporary assignment of being a receiving clerk which was given to the respondent on the day in question was not so completely foreign to the respondent’s ordinary duties so as to require formal training. The appellant contended that the respondent’s ordinary duty as process attendant involved checking raw material levels. Thus, the respondent being asked to verify if maize, a raw material, has been received and signing for such receipt was a simple task that did not require training. Reference was made to the cases of Machawira v Parirenyatwa Group of Hospitals LCH-52-22 and Agribank v Mashukuto LCH-212-14 where a lack of training was not accepted as an excuse for misconduct. The appellant further argued that this was not the first time that the respondent raised a GRV. Therefore, the fact that he had done it before meant that no formal training was required

On the other hand, the respondent argued that he was a process attendant whose duties and responsibilities fall outside the task he was required to do on the day in question. As such, he was not privy to the procedures to be undertaken when receiving inbound material.

The employer’s obligation to equip and train for employees was established in the case of Quest Motor Corporation (Pvt) Ltd v Nyamukura 2000 (2) ZLR 84 (H). The same sentiments were

echoed in Mupombwa v Minister of Education, Sports, Arts and Culture LCH-09-14 where it was held that:

“Substantive fairness means the reason for termination must be valid by reference to incapacity and must be justified by consideration of factors surrounding each case. These include the

nature and cause of the incapacity. The degree and cause of incapacity. The employer should also provide adequate instruction, training and guidance.”

In casu, the issue of requiring training does not apply. The reason is that the minutes of the disciplinary proceedings before the Immediate Superior Level show that the respondent was

asked if on the day in question it was his first time raising a GRV to which he replied ‘No.’ This shows that the task was not foreign to the respondent and the issue of requiring formal training

cannot apply to a task which the respondent was familiar with. In addition to that, it is

undisputed that the respondent served the organisation for more than 30 years. Thus, it was not the lack of formal training that excused the respondent from allegations of misconduct.

Whether or not the arbitrator erred in finding that the respondent made an honest mistake?

The appellant submits that the arbitrator erred in finding that the respondent made an honest mistake when in fact the respondent acted with intention to misrepresent what goods were

actually received. In the appellant’s view, this intention was evident in the things the respondent knew he should have done but chose not to. To begin with, the appellant alleges that the exchange in pages 3 and 4 of the minutes of the proceedings shows that the respondent knew what he was tasked with and what the role entailed. Yet he chose not to do a second weigh in or check the truck as required. In addition to that, the appellant contends that they became aware of a scheme between the employees and drivers in which the appellant was being made to pay for products which were not delivered.

The respondent was charged with uttering a false document in terms of Annexure II, class 1.1 of the Delta Beverages Code of Conduct. In Delta Beverages v John Shumba SC-167-20 page 9, the following definition of uttering was quoted from The Virginia Law Register Vol. 8, No. 5 (Sep.,

1902) at page 322:

"Uttering is the passing, offering, or exhibiting, with guilty knowledge and fraudulent intent, a false instrument, which, if genuine, would be valid in law, and apparently the basis of some

liability."

In light of the above, it is clear that for the charge of uttering a false document to succeed, the appellant must prove that the respondent had the intention to record false information. This was the case in Vhukani Maadza v Air Zimbabwe (Pvt) Ltd SC-41-02 where the court found that the conduct of the appellant constituted the offence of falsification of information because he ‘deliberately wrote in the register false information about his identity as the respondent’s

employee.’. In casu, the appellant has failed to establish intention on the part of the respondent. The entire incorrect figures on the GRV were a result of the error that occurred at the second weigh bridge. The respondent cannot be held accountable for what transpired during the

second weigh as he was not physically involved and there is no evidence tendered by the

appellant that the respondent was required to oversee the process. N evidence has been led to prove that the respondent was at the ofloading point and he does not appear in the alleged CCTV footage. Any error that occurred at that stage falls within the accountability of those who conducted the second weigh, not the respondent who later recorded figures based on their

input. It would therefore be unjust to attribute blame to the respondent for events that occurred in his absence. During the hearing at the immediate supervisor stage appellant

indicated that he was given the instruction to assist Titus to check the trucks by Mrs Motsi. He said he then assisted by writing the GRV using the weigh bridge ticket and delivery note from the driver. Unfortunately, Mrs Motsi was not a witness to shed light on the nature of the

instruction she gave to respondent. Titus did not testify as well he could have shade light as to who witnessed the ofloading of the maize since respondent is denying witnessing that or being present at the ofloading point.

Whether or not the respondent’s defence amounts to a confession of wrongdoing?

The appellant argued that the respondent’s defence amounts to a confession of wrongdoing requiring no further proof. Reference was made to pages 3 and 4 of the minutes of the

proceedings at the Immediate Superior level. This reveals an exchange between the chairman and the respondent where the respondent admitted to having written the GRV and

acknowledged that he must check the truck using the weighbridge ticket to see what the truck is carrying. In light of that, the appellant argued that the respondent actually admitted to every aspect of the offence.

The respondent, on the other hand, argued that he conceded to having written the GRV but did not confess to uttering a false document.

In Reserve Bank of Zimbabwe v Philton Makena SC-37-24, the court referred to P.J. Schwikkard and S.E. Van Der Merwe in Principles of Evidence, 4th ed at 327 which defined an admission as statement made by a party in a civil or criminal proceeding which is adverse to that party’s case.

The exchange referred to by the appellant does not amount to an admission or confession of wrongdoing. When the respondent said that in order to raise a GRV ‘I see what the truck came

with against what we see on the weighbridge ticket’, he was merely explaining his methodology at the first weigh. Although he admitted to writing the GRV, the respondent never admitted to knowingly recording false figures nor did he admit to being present at the second weigh. With no admission of the wrongful act and no admission of intent or negligence, it cannot be said that there was a confession of wrongdoing. The appellant needed to lead more evidence on the circumstances in which the GRV was raised. In the absence of evidence to the effect that the respondent was present at the ofloading point it will be wrong to draw an inference that he was complicit with those who made sure that the truck was not completely ofloaded.

Whether there was sufficient evidence on a balance of probabilities to prove the misconduct.

It was the appellant’s submission that there was sufficient evidence tendered to support the charge of uttering a false document. The appellant contends that this evidence was the GRV document itself which was prepared by the respondent. According to the appellant, the respondent recorded on the GRV that 30,360 tonnes of maize had been received despite the

truck not having ofloaded its full contents. Therefore, the fact that the respondent entered the wrong information on the GRV and affixed his signature constituted a false representation and satisfied the charge of uttering a false document. The appellant further argued that the CCTV footage shows that not all the maize was ofloaded.

The Respondent argued that there was no evidence led by the appellant to establish the

misconduct on a balance of probabilities. He argued that the weighbridge processes could be carried out by different personnel and that he was not stationed or present at the weighbridge. He further argued that he did not have the authority or responsibility to verify the ofloaded quantities and that he simply relied on the information that was provided to him. The fact that the CCTV footage showed that not all the maize was ofloaded was irrelevant as he, in any

event, could not have known that the maize was not ofloaded since he was not present.

The general principle of law is that he who alleges must prove. This principle was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for

Health, Eastern Cape 2015 (2) SA 97 (SCA). This means that the obligation rests on a party who makes an assertion to provide evidence in support of such assertion. See Liberal Democrats & 4 Others v President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & 4 Ors CCZ-7-18.

It is also accepted that the standard of proof in civil matters is on a balance of probabilities. In the case of British American Tobacco Zimbabwe v Chibaya SC 30/19, the court cited the case of Miller v Minister of Pensions [1947] 2 AII ER 372, 374, wherein it was held that:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not.

Applying the guidance of the above authority, the appellant as the employer must therefore prove that it is more probable than not that the employee committed the misconduct. To establish whether the degree of proof was met, it is necessary to determine the sequence of events in relation to the alleged misconduct.

On the day in question, the respondent received an instruction from one Mrs Motsi, to write the GRV upon receipt of goods from the supplier. The procedure is that there are two weightings involved. In the first weighing, the respondent used the weigh bridge ticket to

determine what the truck came with. The second weigh took place at Aspindale, in the absence

of the respondent, where the truck was ofloaded. The respondent then utilised the figures recorded at the second weigh to complete the GRV.

The GRV document alone does not prove that the respondent was responsible for the second weigh. The GRV records the official quantities received based on internal weighing data but does not establish by its nature who conducted the weigh or whether the information recorded was knowingly false. Similarly, the CCTV footage showing incomplete ofloading only serves to show that some of the maize was not ofloaded but does not establish who was responsible. In addition to that, Mrs Motsi, who issued the instruction to the respondent did not testify to confirm whether the employee was indeed instructed to witness the second weigh or verify ofloading.

The absence of such testimony creates a serious evidentiary gap. The second weigh and physical ofloading were conducted by others beyond his control or presence. This is a point which the respondent emphasized throughout all the internal workplace proceedings but

appears to have been ignored. There is no evidence that the respondent was required or even permitted to be present during that stage. The appellant failed to call as witnesses these individuals who actually conducted or supervised the second weigh and ofloading. Their testimony would have been material to establish the chain of responsibility and whether the respondent had any duty to verify the second weigh. It would be dangerous to simply take the GRV alone as evidence and ignore the circumstances of this case. The appellant took an unjustified gamble of failing to lead viva voce evidence from everyone involved in this

transaction especially Mrs Motsi and Titus. Whist in the case of Madyiyauswa V ZFC and Anor SC73/15 it was held that disciplinary proceedings need not adhere to strict rules of procedure and that informality does not vitiate the fairness or legality of hearings, the informality adopted in casu was of the worst degree which affected the standard of proof in these proceedings. To hold that the case was proved on a balance of probabilities when the appellant did not lead

evidence from readily available witnesses.

During the hearing before the immediate supervisor the following exchange took place:

Q What do you consider when you want to raise the GRV?

A I see what the truck came with against what we see on the weigh bridge ticket. Q After the second weighing is there anything you do?

A I was not there when this job was done. I witnessed it when they started 1st weighing then they make you leave the truck in second weighing.

Q What is the reason for checking the truck before the second weigh?

A If the truck is empty or not but in this it was done by someone else but I was just given the responsibility to raise the GRV.

From the above exchange it is apparent that the respondent was raising a defence that he was not there when the second weighing was done and when the ofloading was done but someone

else. This defence cannot be rebutted by simply tendering a GRV but through viva voce evidence of those who were present. The reason for this is that the GRV was rendered a false document after failure to ofload all the maize. Otherwise, when the truck entered Delte Beverages

premises it had 30,360 tonnes of maize because it was full. Therefore, evidence needed to

prove that the respondent having completed the GRV he associated himself who did not ofload all the maize.

In light of the above, arbitrator cannot be faulted when he came to the conclusion that there was no evidence that was been placed on record to establish the misconduct on a balance of probabilities.

DISPOSITION

Wherefore, it is ordered as follows:

The Appeal be and is hereby dismissed.

The Appellant shall bear the Respondent’s cost of suit.

Gill, Godlonton & Gerrans, Appellant’s Legal Practitioners

United Food and Allied Workers Union of Zimbabwe, Respondent’s Representative

TSIKWA J