Elizabeth Mafuratidze v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/332/14
HELD AT HARARE 30TH MAY 2014
CASE NO
JUDGMENT NO LC/H/332/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/332/14

HELD AT HARARE 30TH MAY 2014			CASE NO LC/H/205/10

& 6TH JUNE 2014

ELIZABETH MAFURATIDZE			Appellant

GRAIN MARKETING BOARD			Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr W Magaya, Attorney

For Respondent		Mr P Makuwaza, Attorney

MUSARIRI, G:

Appellant appealed against her dismissal from employment by Respondent.  With the consent of Respondent, she amended her three grounds of appeal by dropping the first 2 grounds. The remaining ground was amended to read as follows,

“The allegations of misconduct are far fetched, ill-conceived and there is no evidence led to prove the allegations of misconduct.”

Respondent opposed the appeal.

The crisp issue became whether the evidence tendered proved the offence charged.  The charges were fraud and an act inconsistent with the conditions of the employment contract.  It was specifically alleged that,

“… you wrongfully, unlawfully and fraudulent misrepresented information to the employer by giving out forged Ordinary Level confirmation results or forging such results and presenting them to the employer as your achievement when you knew that they were not…”

Filed of record is a document titled Confirmation Of Results dated 6 August 2008.  It is on the letter-head of New Era College.  It confirmed that Appellant sat for O-Level examinations at the college and passed 5 subjects.  It is signed in Dzumbira H A’s name as Principal.   Also filed of record is an application by Appellant to Respondent for the post of Provincial Secretary.  The application is dated 19 October 2007.  It attached Appellant’s curriculum vitae (CV). Therein Appellant indicated that she did O Levels at New Era College and of her results were pending.  In addition Respondent relied on viva voce evidence.

F Motsi stated that,

“I was tasked by Mr Muzambi to confirm results.  He gave me the slip.  I went to New Era and asked.  They said the letter is their but they then went through 2007 candidates register and results slip but could not find the name.  There was no candidate number either.  They said they did not confirm results but only give transcript.  Asked if Dzumbira was there and said he was at Zimsec marking exams.  I then went again and again.  I then saw Dzumbira.  He agreed that the signature was his and he knew Mafuratidze but could not figure out if she studied there or not.  He just said he was approached by someone.  Dzumbira was not co-operting probably because he had been arrested over the issue.”

P Nyemba stated,

“Question – Did you ever talk to Dzumbira?

Answer – Yes.  He said he gave Mafuratidze the letter.  When we asked Mafuratidze, she said she was told of that principal by someone else but could not disclose that someone else.”

On the other hand Appellant denied forging the confirmation of result and also denied presenting the same to Respondent.   She dissociated herself from the results.  It was common cause that she did not pass the O-Level subjects on the confirmation slip.

I consider this as a classic case of circumstantial evidence.  In such cases there is no direct proof of the matters in issue.  However the court is required to look at all the circumstances and determine whether the only reasonable conclusion therefrom proves the matters in issue on a balance of probabilities.    In casu there was no direct evidence of the misconduct charged.  However Respondent made out a compelling case based on circumstantial evidence.  Appellant herself stated in her CV that she did O – Levels at New Era. She stated that her results were pending. She listed the subjects involved.  “Fortuitously” a confirmation of results turns up in Respondent’s file stating that Appellant passed her O – Levels.  The subjects allegedly passed are amongst the subjects listed in her CV.  The confirmation turns up at the time when needed most, that is when Appellant had attended an interview.  She stated that she “only attended for Provincial Secretary in August “(2008).”  The confirmation is dated 6 August 2008.

Is this a fortuitous conjuncture of events or is it something else?  Me thinks that the conjuncture is just too convenient.  It is contrived.   By whose hand?  The person set to benefit was Appellant.  The irresistible conclusion is that Appellant either in person or by proxy did the various acts which led to falsification and production of the confirmation slip.  Her story that this was a “set-up” (her own words) lacks credit or support from the record.   It is simply unbelievable.

(Counsel did not draw my attention to any precedents on circumstantial evidence. Therefore I cited none in this judgment)

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E