Enock Mutero v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/66/22
HARARE, 02 MARCH, 2022
CASE NO. LC/H/189/21
JUDGMENT NO. LC/H/66/2022
CASE NO. LC/H/189/21
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO.LC/H/66/22

HARARE, 02 MARCH, 2022                             CASE NO. LC/H/189/21

AND 11 MARCH, 2022

ENOCK MUTERO						                  Appellant

CITY OF HARARE       		                                               Respondent

Before the Honourable G. Musariri, Judge;

For Appellant		        - Mr L. Seremani (Unionist)

For Respondent    	         -Mr R. Zinhema (Attorney)

MUSARIRI, J:

On the 6th May 2021 at Harare the Designated Agent (DA) A. Masiya made a determination.  He ruled that Appellant had been fairly dismissed from employment by Respondent.  Appellant then appealed to this Court against the determination . Such an appeal is provided for by Section 92D of the Labour Act Chapter 28:01.  The grounds of appeal were two-fold as follows,

“1.	The Designated Agent grossly erred and misdirected himself which misdirection amounts to a question of law by making a finding that the Disciplinary Committee was correct in finding the Appellant guilty of misconduct on a balance of probability despite the glaring inconsistences in the evidence.

2.	The Designated Agent grossly erred by siding with the evidence of third witness who was an accomplice without corroboration or taking caution on his evidence.”

Minutes of the disciplinary hearing are filed of record.  The 2nd witness (Chivazve) stated that

“Dept:        Did you then pay the cash on the day in question to the City of     Harare?

Witness 2:	No I paid the cash to Mr Mutero after he had convinced me that if I give him US $1000  my account would appear as if US$2000 would have been paid.

Dept:	Did you then give the accused the cash?

Witness:	Yes I did.

Dept:	Who else was there when you handed the cash?

Witness 1:	Chirimuuta was there.”

Chivazve’s evidence was confirmed by the 1st witness thus

“Dept:	Confirm the accused is the person who submitted the RTGS voucher of US$2000 to Credit Control for processing?

Witness 1:	Confirmed

Dept:	Did the accused person confirm submitting the US$2000 RTGS voucher?

Witness 1:	He confirmed”

Chirimuuta the 3rd witness further corroborated the first 2 witnesses as follows,

“Witness 3:	……. After explaining to him in detail Mr Chivazve agreed to the idea and he gave Mutero a thousand dollars (US$1000).  After Mr Chivazve had left Mr Mutero decided to swipe Mr Chivazve’s rates using his card but later he had a change of mind, he decided to approach Mrs Mananavire who had introduced us to this scum so Mr Mutero went ahead to fill the RTGS Forms then we contacted Mrs Mananavire who came and took the fake RTGS from for processing.  The figure on the RTGS had reflected US$2000.  The US$1000 was shared among us on the ratio of 2:1:1, Mrs Mananavire getting the lion’s share.”

Lastly a statement of Chivazve’s account in the name Braeside Motors showed the credit of the said amount of US$2000.  The Designated Agent (DA) opined thus

“…..it is clear that witness 3 testified that Claimant was given US$1000 by witness 2 in his presence, which fact was highlighted earlier on by witness 2.  The mere fact that witness 2 paid US$1000 to Claimant clearly showed that in as much as witness

3 was an accomplice his evidence was corroborated by that of witness 2.  A close analysis of the evidence of the witnesses on a balance of probabilities clearly shows that it is probable that Claimant committed an offence and the Disciplinary Committee was correct in finding Claimant guilty of misconduct and on a balance of probabilities.”

The Designated Agent’s analysis accords with the critical evidence excerpted above.  The inconsistences in the evidence flagged by Appellant were minor or inconsequential.  The Designated Agent’s analysis showed that he was conscious that accomplice evidence (3rd witness) should be treated with caution.  The accomplice’s evidence was corroborated by 2nd witness and the statement from Braeside Motor’s account.  In any event Section 52 of the Civil Evidence Act Chapter 8:01 provides that

“Subject to any other law, a Court may make a finding and base its decision on the evidence of a single competent and credible witness.”

The 2nd witness (Chivazve) was such single competent and credible witness.

In the circumstances I conclude that the appeal is devoid of merit.  It needs be dismissed.

Wherefore it is ordered that:

1. The appeal be and is hereby dismissed; and

2.  Appellant shall pay 50% of Respondent’s costs.

G. MUSARIRI

J-U-D-G-E