Idea Musauki v Arcturus Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/740/2016
HARARE, 16 MAY 2016
CASE NO. LC/H/740/2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/740/2016

HARARE, 16 MAY 2016					CASE NO. LC/H/721/14

AND 18 NOVEMBER 2016

In the matter between:-

IDEN MUSAUKI					Appellant

And

ARCTURUS MINE					Respondent

Before The Honourable E. Makamure, Judge

Appellant			In person

For Respondent		H Muromba (Legal Practitioner)

MAKAMURE J:

This is an appeal against the decision of the respondent’s appeals committee which upheld a decision to dismiss appellant from its (respondent’s) employ.

The facts of this matter are as follows.  The appellant was working with one Never in the same room.  They were mixing gold slime facing each other.  They were less than one meter apart during that process.  The said Never stole 507 grams of gold slime and hid it.  The respondent thereafter raised charges against the appellant alleging that in view of his (appellant’s) proximity to Never, appellant saw Never stealing and that he did nothing about it.  As such appellant must have been an accomplice to the theft.

The appellant appeals to this court on the grounds that there is no statement from Never implicating him; that he did not see the said Never steal; that guarding against theft did not form part of his duties and that he was not physically involved in the theft.

It is not disputed that there was no statement from Never implicating the appellant. However the respondent though circumstantial evidence found the appellant to have been an accomplice to the theft.

In his own words, the appellant admitted that the said Never and himself were mixing gold slime together.  Then from that same mixture Never removed a portion.  Both the appellant and Never must have been aware that the mixture that they were working on belonged to their employer.  This is precisely what they were employed to do.   These circumstances show that the only conclusion one can arrive at is that if Never took anything or a portion of this mixture the appellant was bound to see it.  The facts are that Never took 507 grams, and that the appellant must have seen him taking it.  He may not have been concerned with Never’s actions but the fact that both of them were working on their employer’s property created an obligation on the appellant to take care of that property.  His failure to so take care makes him an accomplice to the unlawful taking by Never. The fact that he personally was not found in possession of the slime does not absolve him from the complicity.  It is appreciated that the appellant was not a security guard.  His duties however, were the same as those of Never. Infact they were working on the gold slime together and facing each other.  However the assertion by the appellant to the effect that he did not see Never stealing from the same bowl that they were working on is simply amazing.  He was clearly reckless as to whatever happened to that gold slime.  That is an attitude which must be nipped in the bud. If all employees at the respondent’s workplace adopted the appellant’s attitude, soon there will be no workplace to talk about.  I think employees should respect their employer’s property.  This is so because it is part of their source of livelihood. Employees should be encouraged to jealously guard the interests of their workplaces as this benefits both the employer and the employee.

Thus, the Appeals Authority’s decision to uphold the finding that the appellant was guilty of theft as an accomplice cannot be faulted.

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) it was held that in balancing probabilities a court must choose what was most probable, even if there could be more than one possibilities. In the present case the fact that the appellant was working with Never and must have seen him steal cannot be ignored. It only leads to the conclusion that he is in one way or another, involved in the theft.  For that reason I find that there is no merit in all the grounds of appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Kantor & Immerman, respondent’s legal practitioner