Efron Banda v Shamva Gold Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/252/2013
HELD AT HARARE ON 17th JUNE, 2013
CASE NO. LC/H/961/12
JUDGMENT NO. LC/H/252/13
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/252/2013

HELD AT HARARE ON 17th JUNE, 2013	CASE NO. LC/H/961/12

In the matter between:-

EFRON BANDA								Appellant

And

SHAMVA GOLD MINE						Respondent

Before the Honourable G. Mhuri, Senior President

For Appellant	: 	Mr. W. Ndhlovu (Education Officer)

For Respondent	:	Mr. T. Tandi (Legal Practitioner)

MHURI G.:

At the conclusion of the hearing of this appeal I dismissed the appeal in its entirety with costs and indicated that the reasons will follow.  These are they:-

This is an appeal against the Appeal‘s Committee’s decision which upheld the Disciplinary Committee’s verdict and penalty.

Appellant raised four grounds of appeal namely

“1.	Respondent is acting on hearsay.

There is on sufficient evidence.

Respondent violated Statutory Instrument 165 of 1992 Part D No.2.

The area is high security area is not accessible.”

Appellant conceded that three of the grounds namely 1, 3 and 4 were not raised before the Appeal’s Committee for its consideration.  Appellant then withdrew the 3rd ground.

Appellant’s ground of appeal to the Appeal’s Committee was only one vis that there was no evidence.  It is this ground of appeal that the Appeal’s Committee heard and determined.  The other two grounds vis 1 and 4 raised before this court were not raised before the Appeal’s Committee.  That notwithstanding, however, the record clearly shows that Respondent did not rely on hearsay evidence at all.  It relied on the evidence of a witness Kapambe who saw Appellant enter into the Arcacia Plant and come out with a sack of gold ore concentrate.  It is this same witness who testified that he was given $20,00 bribe by Appellant.

This can not by any stretch of imagination be hearsay evidence.  An inspection in loco where both parties were present was carried out and the findings were that it was possible to gain access into the Arcacia Plant through the window as submitted by Kapambe.

The Appeal’s committee faced with such evidence, found as credible the evidence of Kapambe and disbelieved Appellant’s.  This was so in view of Appellant’s prevarication.  In view of the evidence placed before it, the Appeal’s committee made factual findings which findings, an Appellate Court cannot interfere with unless they were so outrageous.

See:-	Vimbai Mbisva  V Rainbow Tourism Group Limited

t/a Rainbow Hotel  and Towers SC 32/09

in which SANDURA JA (as he then was) cited with approval the principle as set out in the case of

Hama V National Railways of Zimbabwe 1996 (1) ZLR 664 S at 670 C-E

That – 	“The general rule of law, as regards irrationality is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

In casu the findings by the Appeal’s Committee that

“1.	During the week leading to the commission of the offence i.e from 22 to 29 June 2012, the appellant worked with Cheura who resigned to avoid disciplinary hearing which carried the same theft charges.

2.	On the 28th of June the appellant was seen breaking into the acacia plant and came out with a sack with concentrated gold ore.

3.	All other employees were implicated for panning at the Rodmill base, why would the witness lie that the appellant alone broke into the acacia plant to steal concentrated gold ore.

4.	The appellant was given adequate notice prior to the initial hearing but failed to explain and recall anything concerning the incident.

5.	On the said date, the 28th of June 2012, the appellant was at work and on night duty.

6.	An in loco inspection was done and the administering official was satisfied that it is possible for one to enter into the acacia plant using the method used by the appellant.

7.	Cpl. Kapambe’s submission that he was given 20 dollars is true although the appellant submitted that it is Cheura who gave Cpl Kapamba money.”

cannot be said to be outrageous to warrant interference by this court.

To that end the appeal could not be allowed.

AMWUZ – Appellant’s Representatives

Kantor and Immerman – Respondent’s Legal Practitioners