Emmanuel Musona v John Mack & Company t/a Golden Valley Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/631/16
HELD AT HARARE ON 7TH OCTOBER, 2016
CASE NO.
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/631/16

HELD AT HARARE ON 7TH OCTOBER, 2016 	    CASE NO. LC/H/134/14

AND 21ST OCTOBER, 2016

In the matter between:-

EMMANUEL MUSONA							    Appellant

And

JOHN MACK & COMPANY

t/a GOLDEN VALLEY MINE						    Respondent

Before the Honourable Mhuri, J.

(IN CHAMBERS)

MHURI J.

This appeal has been decided on the record in terms of Section 89 2(a)(i) of the Labour Act [Chapter 28:01].

Appellant was in Respondent’s employ as a gang leader before his dismissal on allegations of theft of gold ore.

Appellant filed this appeal on the following grounds which he termed reasons for the appeal:-

“1.	The charge of theft is wrong, it stated that he was panning at 23 L whilst he was not at that place.

Management fired one of the security guards from contract company because he denied that a bag of ore was found with Emmanuel.

The company guard called Dumisani was also suspended for saying the same.

These were the guards who were on patrol that very day.

Presiding officer wrote a verdict on complaint form before deliberations were done meaning to say it was a predetermined case.”

As regards the first ground it is not in dispute that on the relevant day i.e. 3rd January, 2014 Appellant proceeded to the 23 level in a skip leaving his other crew members behind.

It was his submission before the disciplinary committee that he left his crew members behind because the skip was full.

It was not in issue that the bag containing the gold ore was found on this level.  Appellant did not deny that by proceeding into the skip leaving his crew behind this was a contravention of procedures.

On the basis of the evidence before it, and on a balance of probabilities the Disciplinary Committee found Appellant guilty on the findings that:-

Appellant was a gang leader who was aware of the re=entry procedures from the surface to underground.  He went underground alone leaving his crew behind.

He did not wait for his supervisor to be given instructions on where he was going to work.

There were inconsistences in his evidence and that of the crew members.

The Disciplinary Committee discredited his evidence and found as credible the crew members evidence.  It is trite that an Appellant Court cannot interfere with the Court aquo’s finding on issues of credibility.

As regards the second ground of appeal, my finding is that this is not a proper ground of appeal.  It is difficult to comprehend, it is not precise, it is not concise.  I will therefore not allow it to stand.

As for the third ground, the record does not support Appellant’s averment.  The record shows that the verdict was read to the parties on the last day after the adjournments.  Page 16 of the record are the findings by the presiding officer.

Overally I find that the appeal is without merit and accordingly dismiss it in its entirety.

NATIONAL MINE WORKERS UNION OF ZIMBABWE – Appellant’s representatives

GILL, GODLONTON & GERRANS – Respondent’s legal practitioners