Farai Tichawangana v ZESA Enterprises (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/110/21
HELD AT HARARE 27 May 2021
CASE NO
JUDGMENT NO LC/H/110/21
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/110/21

HELD AT HARARE 27 May 2021				CASE NO LC/H/60/20

& 30 July 2021

In the matter between:

Farai Tichawangana				Appellant

And

ZESA Enterprises (Private) Limited		Respondent

Before The Honourable Murasi, J

For Appellant					Mr. B. Magogo

For Respondent					Mrs. R.T.L. Matsika

MURASI J:

Appellant was in the employ of the Respondent as Finance Director. Following an audit of Respondent’s books of accounts, it was recommended that Appellant be charged with misconduct. Appellant was charged with contravening section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 as read with the Public Finance Management Act, (PFMA) (Chapter 22:19). He faced nine (9) counts. Appellant was brought before a Disciplinary Authority which found him guilty of two of the counts and not guilty on the rest. Appellant is dissatisfied with this outcome and has appealed to this Court.

Appellant’s grounds of appeal are as follows:

The Disciplinary Authority erred in dismissing the preliminary point relating to the authority of the Respondent’ sole witness to represent Respondent in the absence of credible evidence on whether or not Respondent’s board had authorised the disciplining of the Appellant.

The Authority erred in finding, contrary to evidence suggesting that PME had already made delivery of material and commenced construction of substations, that Appellant made an advance payment of US$9.5 million.

The Authority erred in ignoring evidence led to the effect that the US$9.5 million payment was made in respect of five and not just two substations. A fortiori, the Authority misdirected itself in divers ways, to wit;

In having regard to two impugned pro-forma invoices for Mufakose and Glen Norah without making a ruling on their authenticity and without verifying the fact of their existence at the time of payment.

In disregarding abundant evidence that materials for the five substations was being delivered simultaneously and the construction thereof happening contemporaneously;

In disregarding evidence of the contemporaneous commissioning of the substations.

In giving no due weight to the fact that there was no evidence of a pre-payment duly recorded in both the 2011 Annual Financial Statements and the relevant annual external audit report of the Respondent’s books.

In failing to find, in keeping with the evidence tendered, that the Respondent suffered no prejudice as a consequence of the payment of US$9.5 million.

The Authority erred in failing to find that the authority to make payment in the form of donations and/or sponsorships to entities such as ZANU PF was granted by the Managing Director as the Accounting Authority who is permitted to do so by law and applicable policy.

A fortiori, the Hearing Authority erred in failing to find that some of the donations were envisaged in the organisation’s newly crafted marketing policy.

As regards the penalty, the Authority paid lip service to the totality of the mitigatory circumstances raised by Appellant relating to, inter alia, the ZESA Holdings interventions and operating practice coupled with ministerial directives which the Appellant had no power to override or ignore. In settling for dismissal, the Authority grossly misdirected itself in its exercise of discretion such that no reasonable tribunal could have arrived at such a decision.

Mr. Magogo informed the Court that the Appellant was abandoning the first ground of appeal and proceeding with the rest.

Appellant’s Submissions

I should mention from the onset that after the oral submissions made on 27 May 2021, Appellant’s Counsel later submitted a bundle of documents which are copies of invoices relating to the transactions between the Respondent and PME. These will be taken into account in determining this matter.

In oral submissions, Mr. Magogo referred to the terms of the contract signed between the Respondent and PME and that the charges emanated from the observations made by the auditors. The Court was referred to Appellant’s heads of argument dealing with the issue of ‘advance payment’ and ‘down payment from paragraph 12.6 onwards. It was also stated that PME had waived its rights to be bound by the terms of the contract as provided in Clause 1.1 of the said contracts. It was further stated that the payment was not made in terms of the contract as at the time of payment it was agreed that Respondent had financial challenges as it was facing cash-flow problems. Mr. Magogo further indicated that it was therefore agreed that there would be staggered payments between the Respondent and PME. It was averred that by the time the payment was made, it was already overdue as material had been supplied and that there was an email from PME showing that this had happened. Mr. Magogo also submitted that beyond the supply of the material, construction of the substations was underway and therefore the payment could not be classified as an advance payment. It was also averred that Respondent’s Board had deliberated on the matter of the receipt of the materials.

Mr. Magogo stated that the payment in question should have been reflected in Respondent’s books of accounts. The Court sought clarification in the following manner:

“Court:	Who was responsible for the reflection in the books of accounts?

A:	It was the Appellant.”

It was further argued that the Disciplinary Authority restricted his findings to the pro-forma invoices and disregarded the other invoices which showed that material had been delivered by PME and that the evidence showed that construction had commenced in respect of all the substations.

As far as the invoices were concerned, it was argued that these were not there when the payment was made and that Appellant could easily have made reference to them. Mr. Magogo stated that the Respondent’s stamp that appeared on the invoices was different from others as it did not show the details of who had received and actioned them. It was argued that the two invoices were put in issue before the Disciplinary Authority but it had not dealt with the issue. To this end, it was suggested on behalf of the Appellant that the person (s) who made the invoices must have seen the payment made by the Appellant before making the invoices. It was also pointed out that the Group Chief Executive Officer had instructed that the CBZ facility should be utilised in the liquidation of Respondent’s indebtedness to PME and that US$12 million was available for the purpose.

As far as the donations were concerned, Mr. Magogo submitted that these were authorised by the Accounting Officer and that in terms of the Admin Note, there was room for donations to be approved by the Managing Director. Mr. Magogo conceded that the donations did not fall under paragraphs (a) and (b) that is why they were forwarded to the Managing Director for approval.

Mr. Magogo submitted that the penalty imposed on Appellant was irrational having regard to the fact this issue had been known by the Respondent’s Board for a long time and no action had been taken and therefore there was no basis for stating that the employment relationship had soured. It was further averred that there was no prejudice to the Respondent as the payment was in respect of an overdue account. It was further argued that the Disciplinary Authority had failed to take into consideration the effect of the influence and instructions of the Group Chief Executive Officer in coming up with an appropriate penalty in the circumstances.

Appellant’s heads of argument were fairly detailed. Most of the issues raised in those heads of argument were addressed in oral submissions. Appellant, in paragraph 13 of those heads of argument refers to the observations made by the Disciplinary Authority as regards the construction of the substations and takes issue with the fact that the evidence showed that there was a simultaneous construction of those substations. In paragraph 15 of the heads of argument it was argued that the instruction from the Group Chief Executive Officer was;

“that payment should be made to PME from the whole proceeds of the CBZ facility.”

And therefore;

“The instruction was not at all unlawful neither was the payment irregular.”

In paragraph 17, Appellant’s Counsel seeks to distinguish between a pro-forma invoice and an actual invoice and that the Disciplinary Authority should have discarded these in favour of the invoices issued when delivery of the materials was made. It was also averred that;

“Appellant categorically stated that the pro-forma invoices relied upon by the Respondent were not present at the time of the making of the payment. …The pro-forma invoices were in fact ghost invoices.”

In paragraph 17.15, the following averment is made:

“It is submitted on the merits of the Appellant’s contention that the impugned invoices could have been smuggled in at the time of the audit or other time that appellant cannot be aware of. They were conveniently stamped but the impostor forgot to initial and date the same.”

Paragraph 22.6 shows the following except:

“Even then, the payments were made in 2014 and at that time discussions had already commenced on the Marketing Expenditure policy which culminated in the approval by the ZENT Board on 28 February 2015.”

Mr. Magogo’s oral submissions on the issue of the penalty imposed on the Appellant are largely the same as those in the heads of argument. The documents submitted after the oral submissions to a large extent are in support of the fact that invoices had been submitted by PME to Respondent showing the materials that had been delivered to Respondent.

Respondent’s Submissions

Mrs. Matsika, in response, submitted that Appellant had made the payment to PME and the donations irregularly in breach of section 45 of PFMA and the duty of the Court was to find whether the findings by the Disciplinary Authority were correct and supported by the evidence.

As far as the payment of the US$9.5 million was concerned, Mrs. Matsika submitted that a reading of the contracts entered into between the Respondent and PME was imperative. It was stated that the contracts covered the whole scope of works. The duties of the parties were clear ex facie the contracts and that PME’s obligations related to more than the supply of equipment. Mrs. Matsika further submitted that in terms of the contract, it was not the price of supplying equipment/materials but what PME was supposed to perform under the contract. This was captured in Clause 9 of the respective contracts and that 60% of the contract sum related to the whole process covered by the contract. Mrs. Matsika stated that the issue of advance payment must therefore be understood in respect of the entire contract.

Mrs. Matsika argued that the submission made on behalf of Appellant about the meaning of ‘advance payment’ or ‘down payment’ did not assist the Appellant as there was no requirement that payment be made prior to commencement. What was required was that payment be made prior to completion of works. She therefore reasoned that there was no merit in Appellant’s argument that simply because material had been delivered, the payment could not be an advance payment. Mrs. Matsika pointed to the existence of the invoices relating to the two substations and stated that they showed what the payment related to and there was no reason for the Disciplinary Authority to doubt what they were.

Mrs. Matsika also stated that the cheque requisition made by the Appellant (page 133) showed that it was payment for EPC materials and this tallied with the invoices supplied by PME. She said the invoices tallied with the payment as these were done on the same date with identical amounts. She further pointed out that the argument that the invoices did not exist or somehow were manufactured was not made earlier and reference was made to page 188 of the record. Mrs. Matsika referred to the decision by the Disciplinary Authority which had rejected Appellant’s averments and had stated that if the payment related to the five substations, PME would have issued invoices in respect of the five substations (page 27).

In respect of the fact that the Group Chief Executive Officer had authorised the payment, Mrs. Matsika stated that Appellant was the Finance Director who had a duty to independently assess the propriety and regularity of the payment before making it. She further stated that the charge was that Appellant had failed to exercise that duty and Respondent did not accept that the payment was regular as it was tainted with irregularity. Mrs. Matsika further pointed to the fact that Appellant could not rely on the email from PME which had requested for payment of 100% of the contract price as this was clearly outside the provisions of the contract signed between the Respondent and PME. In this regard she referred to the letter written by PME dated 20 April 2011 which appears on page 422 of the record. She submitted that the figures that were quoted therein fell outside the provisions of the contract.

In respect of the argument raised by Appellant that the payment was not reflected in Respondent’s Financial Statements, Mrs. Matsika submitted that this would not resolve the matter as the Disciplinary Authority was faced with invoices from PME and what those invoices told him was that an advance payment had been made. The fact that it was not reflected in financial statements could not have carried any weight in the determination of the matter. Mrs. Matsika argued that the charge did not require that there be prejudice as what was being alleged was that the payment was tainted with irregularity and in this regard Appellant was regarded as the ‘gate-keeper’ on behalf of the Respondent who had made a payment outside the provisions of the contract signed between Respondent and PME.

Mrs. Matsika also stated that Appellant was misleading the Court when it was averred that the Disciplinary Authority did not make a pronouncement on the invoices as this was referred to at page 27 of the record. It was also argued that there was no agreement between the parties to ‘stagger payments’ as there is no record of such.

In respect of donations, Mrs. Matsika submitted that these clearly were not permitted in terms of the Admin Note and that Appellant was aware of this. The fact that they were authorised by the Managing Director did not regularise their payment. It was also argued that Appellant, in an exit interview record at page 392, had stated the following:

“As Finance Director, I would not rubber stamp donations when it came to payment but would consider materiality of such payments.”

However, the Appellant had proceeded to make the payments. Mrs. Matsika referred to the donation made to Munacho Mutezo where Appellant had authorised the purchase of seventy-five (75) broiler chickens for his political party victory celebrations. She added that this was a personal function and that Respondent did not have anything to do with those proceedings. She went on to point out that Appellant could not seek to rely on the marketing policy which was put in place on 6 February 2015 when such donations pre-date the policy.

Mrs. Matsika stated that there was no basis for interfering with the discretion exercised by the Disciplinary Authority in dismissing the Appellant having regard to the gravity of the offence. Appellant was the Finance Director who was aware of his duties as gate keeper of Respondent’s finances. He was also aware of the existence of the contracts and the provisions of PFMA. She stated that Appellant owed a duty of utmost good faith to Respondent and an extreme high standard of care was required of him and his commissions or omissions had eroded the trust that existed between him and the Respondent. To this end, it was submitted that a penalty of dismissal was appropriate.

Respondent’s Counsel filed fairly detailed heads of argument and most of the issues raised therein were canvassed in oral argument.

The Law

Both parties refer to relevant precedent on the duties of an appellate court when determining an appeal based on findings of fact. Such cases as Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 and ZINWA v Moyounotsva SC 28/15 were cited by the parties. The thread through all these cases is that an appellate court can only interfer with a lower court’s exercise of judicial discretion on limited grounds. A lower court’s exercise of discretion can only be interfered with in exceptional cases where it has been exercised in an unreasonable manner. It should be apparent from the record that the court a quo failed to take some matters into consideration, or that it failed to give weight to relevant issues or gave little weight to relevant issues or was influenced by extraneous issues or that the decision was plainly incorrect.

Analysis of the facts and evidence

A reading of the Appellant’s second and third grounds of appeal show that they raise issues pertaining to the payment of the US$9.5 million. The averments are that, contrary to evidence led, the Disciplinary Authority did not take into consideration that delivery of materials had been done and construction of the substations was under way. It was also argued that the payment was not in respect of two but five substations. The Appellant further takes issue with the fact that the Disciplinary Authority did not make a ruling on the authenticity of the invoices and that the construction and commissioning of the substations was being done at the same time. The Appellant also raised the issue that the payment was not reflected in Respondent’s Financial Statements of 2011 and that the issue of prejudice was not canvassed by the Disciplinary Authority. I intend therefore to deal with the two grounds of appeal at the same time.

The Charge

The Appellant was charged with contravening section 4 (a) of the Labour (National Employment Code of Conduct) Regulation, Statutory Instrument 15 of 2006 as read with the Public Finance Management Act (PFMA). The details of the charge are shown in the Notice to attend a Disciplinary Hearing dated 12 November 2019, Appellant was informed that he was going to face the following charge:

“That you acted contrary to the provisions of the contract between ZENT and PME for the construction of substations in Mufakose and Glen Norah, by making an advance payment of US$9, 500,00.00. In terms of the parties’ contract, ZENT’s obligation for an advance payment was capped at 60% of the contract sum which was US$5, 243,600.00. The difference between the authorised payment and the payment you authorised, that is, US$4,256,400.00 is therefore an irregular expenditure and was made in contravention of the financial control systems set in place by ZENT. In making this payment you breached Sections 45 (b) and (c) of the Public Finance Management Act (PFMA) that obliges you to ensure that the system of financial management and internal control established for ZENT is implemented and that you take appropriate steps to prevent irregular expenditure.”

A reading of the charge shows that Respondent took issue with the failure by the Appellant to adhere to the provisions of the contract signed between the Respondent and PME. The contract, as stated, required that Respondent pay an amount equivalent to 60% of the contract price.

I will begin with Appellant’s explanations tendered as regards the payment of the US$9.5 million. Page 108 shows part of the response given by Appellant in a letter dated 15 July 2019:

“I am unaware of the $9.5 million prepayment and would need the auditor to advise how he came to the conclusion given over US$18 m worth of EPC material had been received. We need to first resolve such issues of principle which to me are self-evident. These issues were never discussed with the Auditors during the audit or in the closing meeting.”

Page 188 of the record and in particular, paragraph 8.9 shows part of Appellant’s response to the charge as follows:

“Noteworthy is the fact that PME’s deliveries were for all substations and not for select substations. That PME’s invoices named two substations was for their own accounting but as far as ZENT was concerned a payment was due for all substations and that is the spirit within which the payment was made. It will be noted that all ZENT generated correspondence that accompanied this payment did not particularise the substation, the understanding being that the payment was in any event insufficient.”

In oral submissions, Mr. Magogo stated the following:

“The payment was not made in terms of the contract.”

“At the time the contracts were made it was agreed that ZENT was in financial doldrums and had cash flow problems and the agreement was that there were to be staggered payments between ZENT and PME”.

“The two invoices were not there when payment was made.”

“The person(s) who made the invoices must have seen the payment made by Appellant before making the invoices.”

The first observation I make is that Appellant does not deny that he did not follow the provisions of the contract when making the payment. This much comes from the statement made by Mr. Magogo. It is an admission that the contractual provisions were not adhered to. In my view, this is the essence of the first rung of the charge, non- adherence to the terms of the contract. Section 36 of the Civil Evidence Act, (Chapter 8:01) provides as follows:

“(1) An admission as to any fact in issue in civil proceedings, made by or on behalf of a party to those proceedings, shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2) Subject to subsection (3), in determining whether or not any fact in issue in civil proceedings has been proved, the court shall give such weight to any admission proved to have been made in respect of that fact as the court considers appropriate bearing in mind the circumstances and manner in which the admission was made.

(3) It shall not be necessary for any party to civil proceedings to prove any fact admitted on the record of the proceedings.

(4) It shall not be competent for any party to civil proceedings to disprove any fact admitted by him on the record of proceedings.

Provided that this subsection shall not prevent any such admission being withdrawn with leave of the court, in which event the fact that the admission was made may be proved in evidence and the court may give such weight to the admission as the court considers appropriate, bearing in mind the circumstances in which it was made and withdrawn.”

The Supreme Court, in Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12 confirmed this position.

The payments envisaged in terms of the contract are in Clause 9 thereof. As submitted by Mrs. Matsika, the 60% refers to the whole contract and not only the supply of materials. The contracts themselves clearly stipulate that they are for “the design, supply of equipment, construction and commissioning” of substations. It would appear Appellant’s Counsel’s argument is hinged on the supply of materials only. To this end, the additional material submitted by Appellant’s Counsel goes on to buttress the point that a lot of material had been supplied by PME to Respondent. The point is lost. That the payment is not in terms of the contract if further confirmed by the cheque requisition made the Appellant himself which is at page 133 of the record. Under ‘details of payment’ appears the caption ‘EPC Materials’. The payment was therefore for materials and not 60% of the contract price stated in the contract.

I have also considerable difficulty in following Appellant’s explanation concerning the payment of the US$9.5 million. Elsewhere in this judgment I make reference to Appellant’s response in which he stated that he had no knowledge of the amount in question. He does not 'own up’ at that stage that he indeed raised the requisition leading to the payment in question. It was argued by Mr. Magogo that there was an agreement to have ‘staggered payments’ in order to liquidate the indebtedness to PME. No such agreement exists on record and the minutes of Respondent’s Board do not contain such deliberations. As pointed out by Respondent’s Counsel, no such agreement existed.

The Disciplinary Authority rejected Appellant’s explanations about the two invoices and accepted Respondent’s submissions that the payment was in respect of the two substations. It was contended that the Disciplinary Authority should have made a finding on the authenticity of the documents. I note that the Disciplinary Authority deals with the invoices and accepts that they did in fact exist and accepted Respondent’s submissions in this regard. Appellant’s explanations about their existence shows some variations. In his response to the charges, Appellant states that the invoices were from PME were ‘for their own accounting’. (Page 188). At that stage, Appellant did not say that the invoices did not exist at the time of payment. In oral submissions, it was argued that they were not in existence when the payment was made and could only have been put in there after the payment. The evidence shows that the audit was initiated in February 2018 and Appellant was on duty. He was only asked to go on leave in October 2018. This would mean that PME ‘generated’ these invoices in October 2018 as it has not been denied that these invoices came from PME. The reason for so-doing has not been advanced.

A reading of the invoices and the documents generated by the Appellant show the following. Page 126 shows the application to transfer the amount in question. The following details fall under the heading, Beneficiary:

Account Name	:	PME Transformers (INDIA) Ltd

Account Number	:	608181

Bank			:	Chinatrust Commercial Bank, New Delhi India

Swift Code		:	CTCBINDD

Routing Number	:	3582051634001.

A look at the invoices issued by PME at pages 127 and 128 show the same details under the heading ‘For Credit to’. The details of the bank, account number, account name, swift code and routing number, tally. The total of the amounts in both invoices is US$9.5 million which is the amount on the application made by Appellant. The invoices gave the purpose for payment as “Advance towards the various material cost”. The cheque requisition at page 133 gave the details of payment as ‘EPC materials’. These were the facts which faced the Disciplinary Authority. Would a reasonable tribunal not have found that the payment was in relation to the two substations? I am of the view that it would.

The issue of the simultaneous construction and commissioning of the substations raised by the Appellant did not and do not assist in the resolution of the whether or not the payment was in terms of the contract signed between the Respondent and PME. The same applies to the fact that the payment did not appear in Respondent’s financial statements for the year 2011. This was just a red herring raised by Appellant which does not affect the determination of issues pertaining to the charge which the Appellant faced where Appellant had made the admission of having generated the payment himself.

I will now turn to the fourth ground of appeal. The Disciplinary Authority made a finding that the donations were not in terms of the Admin Note. That these donations were not made in terms of the Admin Note is common cause. Appellant avers that these donations were approved by the Managing Director and he only proceeded to pay the donations after the approval. Whilst the donations clearly fell outside the permitted grounds on which donations were supposed to be made, I did not hear the Respondent dispute that these were approved by the Managing Director, albeit illegally. It may be questionable that a whole Finance Director would pay out money to a function of a personal nature such as a victory celebration, the circumstances in which the payment was made have to be taken into account. It may be argued that Appellant was supposed to protest in terms of section 14 of PFMA. However, in the instant case the matter was referred to the higher office for consideration and that office had approved it. I am of the view the fault lay with the office that made the approval disregarding the provisions of the Admin Note. It has not been stated that the Managing Director was unaware of the provisions of the Admin Note. In fact the evidence shows that the Managing Director clearly made the approval with the knowledge that the Admin Note did permit such donations. However I am not inclined to agree with Appellant that the donation was in line with the ‘newly crafted marketing policy’ as the payments clearly pre-date the inauguration of that policy. I am of the view that Appellant should be found not guilty on the count.

I now turn to the last ground of appeal dealing with the penalty imposed on the Appellant. Both parties are agreed that the employer has a discretion to mete out the ultimate penalty of dismissal where an employee is guilty of misconduct. An appellate court can only interfer with such discretion where there is evidence that the discretion was exercised unreasonably. Appellant has averred that the Disciplinary Authority paid lip service to the mitigatory features raised by the Appellant. It was also stated that the Disciplinary Authority ignored the external interventions that influenced Appellant’s actions.

A reading of the record does not show that there were any ministerial interventions which bore directly on Appellant. The intervention by the Group Chief Executive Officer was to the Managing Director. In that instance, the latter had indicated that the whole CBZ facility should be utilised to liquidate the indebtedness to PME. However, the record shows that an amount of US$9.5 million was paid instead of the US$12 million which was available. This shows that the ultimate discretion lay the operatives at Respondent. The issue of absence of prejudice has been settled by precedent. The Supreme Court, in the Chimwala case stated that the value of prejudice is not the determining factor. The reasoning was that if an employer took a serious view of the misconduct, then the employer was entitled to dismiss the employee. The degree of non-compliance is the determining factor.

Respondent’s Counsel made submissions that Appellant was the ‘gate-keeper’ of Respondent’s finance and had a fiduciary duty towards the Respondent and the public as this was public entity. It was also submitted that Appellant was aware of the existence of PFMA and its requirements as well as the terms of and conditions of the contracts signed between the Respondent and PME. He however went ahead despite this knowledge. It was submitted that in the circumstances, the Respondent had lost trust in Appellant as his conduct went to the root of the contract of employment and in such event, a dismissal was appropriate.

I am mindful of the fact that I have stated that Appellant should not have been found guilty on the count relating to the donations. Does this lessen Appellant’s moral blameworthiness? I think not. It cannot be said that Appellant’s commissions or omissions were so trivial, so inadvertent, so abherrant or otherwise so excusable that the penalty of dismissal was unwarranted. (See Tobacco Sales Floors Ltd v Chimwala). Appellant’s actions in disregarding the provisions of the contract and section 45 of PFMA clearly show that Respondent cannot have any more confidence in the employee. It was his duty to safeguard Respondent’s finances. These were public funds. Appellant did not ‘bat an eyelid’ when a huge sum of US$9.5 million was being paid out without any regard to an existing and binding contract between his employer and a third party. This means that Appellant completely disregarded his contractual duties to the employer. I am of the considered view that there was no misdirection on the part of the Disciplinary Authority in exercising the discretion to dismiss the Appellant.

In the result, the appeal partially succeeds and the Court makes the following Order.

The appeal partially succeeds.

The first ground of appeal be and is hereby struck off having been abandoned at Appellant’s instance.

The second and third grounds of appeal be and are hereby dismissed for lack of merit.

The fourth ground of appeal be and is hereby allowed.

The fifth ground of appeal be and is hereby dismissed for lack of merit.

Each party to meet its own costs.

Makuwaza & Magogo Attorneys-		Appellant’s legal practitioners

Wintertons-					Respondent’s legal practitioners