Issac Dziyike v Cailogistics (Pvt) Ltd

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 10TH
JUDGMENT NO.LC/H/25/25
CASE NO.LC/H/789/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 10TH OCTOBER 2024 AND

In the matter between

JUDGMENT NO.LC/H/25/25 CASE NO.LC/H/789/24

ISSAC DZIYIKE	APPELLANT

And

CAILOGISTICS (PVT) LTD	RESPONDENT

BEFORE THE HONOURABLE E. MAKAMURE , JUDGE

FOR THE APPELLANT :T RUKWANDA FOR THE RESPONDENT: N. Z. MASUKU

MAKAMURE J:

This is an appeal against the respondent’s decision to dismiss the appellant. The appellant raised 3 grounds of appeal. At the commencement of the appeal hearing a preliminary issue was raised on behalf of the respondent. The issue was whether or not grounds 1and2 of appeal were properly before the Court. After hearing and considering argument the Court upheld the preliminary issue and ruled that the two grounds were not properly before the Court. They were therefore struck out. That left the appellant with one ground of appeal. That ground is:

‘3. The Appeal Hearing Officer grossly erred at law on making a finding that Appellant was never denied the opportunity to call witness(sic) to disprove the allegations levelled against him. It is trite that he who allege(sic) must prove. Clause A4(7) of SI 42-22 is clear that the burden of proof lies with the Respondent.

Conviction premised on the Appellant’s failure to prove his innocence is misplaced.’

The appellant was employed by the respondent as a driver. The allegations levelled against him were that on 27th April2024 he was asked to take truck number1032 for repairs to the respondent’s Head Office workshop. He was in the company of another employee, a mechanic and they used a certain route which is not ordinarily used. On the way they passed through or stopped at a certain place, that is,1758 Ilford Road Waterfalls where 153litres of fuel were allegedly syphoned from the truck. On the basis of these allegations disciplinary proceedings were conducted against the appellant . He was charged with and

convicted of the crime of theft in violation of provisions of the applicable code of conduct.

In his defence, the appellant admitted to taking the truck as instructed. He admitted using a different route from the one ordinarily used saying that it was during the peak hour and he was trying to avoid traffic. He says he had been advised that later that day he was to travel to Chinhoyi ,so on the way to the workshop he and his colleague stopped at a certain house in Waterfalls where he bought some food in preparation for the expected trip after which they proceeded to the Head Office workshop. He was led there by the mechanic who indicted that the house belonged to his(the mechanic’s) relative.(p21/60). He could not confirm the address since he said that he was not familiar with the area. He was not aware of diesel being syphoned from the truck, he denied that it happened but that if it happened, he was not aware of it. He also told the hearing that on 25th April 2024 that same truck had been on a trip with another driver who encountered problems with it. This is why it was being taken for repairs. On the 27th he was told by his supervisor that the truck was not filled up with fuel but that he

would be able to deliver it for repairs. After the disciplinary hearing he was found guilty. One of the reasons for the conviction was that and I quote :

“3.You failed to produce evidence that you did not syphon diesel from the truck in question on the 27th of April, when you diverted the route and took it to a fuel

syphoning site.”(My underlining for emphasis).

The appellant was aggrieved by the decision and lodged an internal appeal. The appeal was dismissed. One of the reasons for dismissal of the appeal was:

“3. You were not denied any opportunity to call witnesses in the proceedings to contest the allegations levelled against you.”

In Court , Mr Rukwanda who appeared on behalf of the appellant argued that the appeal authority erred by saying that the appellant was not denied an opportunity to disprove his guilt. On the other hand ,the position on behalf of the respondent was that at the hearing stage the appellant failed to prove his defence and that this was what the appeals officer was confirming. In other words, the position of the respondent is that the appellant should have proved his innocence.

It is trite that he who alleges must prove. In Bok v Davidson 1988(1)ZLR365(S) it was held that ‘he who seeks a remedy must prove the grounds therefore’. In Astra Industries Limited v Peter Chamburuka SC27/12 the Supreme Court stated that ‘The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.’ In Doves Funeral Assurance (Private) Limited v Fernby Investments (Private ) Limited & Five Others SC102/21 it was stated that : ‘It is a cardinal principle of our civil practice and procedure that the onus is on a person who claims

something from another in a court of law to satisfy the court that he or she is entitled to it.’ S70(1)(a) of the Constitution of Zimbabwe provides that any person who is accused of any

offence is presumed innocent until proved guilty. In the present case it appears that the appellant was asked to prove his innocence. This was wrong . It was unconstitutional and contrary to established principles in civil litigation.

A wrong approach was adopted in the course of conducting disciplinary proceedings against the appellant. In view of the authorities some of which I have referred to above , I agree with Mr Rukwanda that the respondent’s appeals authority fell into error by confirming the position that the appellant was not denied the opportunity to call witnesses to prove his innocence. In the result there is merit in the ground of appeal. The appeal succeeds.

It is accordingly ordered that:

The appeal be and is hereby granted.

The decision of the Appeals Hearing Officer dated 9July 2024 be and is hereby set aside and substituted with the following

The Appellant be and is hereby found not guilty and acquitted.

The Respondent be and is hereby ordered to reinstate the Appellant to his position as a driver without loss of salary and benefits with effect from date of dismissal.

In the event that reinstatement is no longer possible the Respondent be and is hereby ordered to award the Appellant damages as agreed between the parties. Should parties fail to agree either party is free to approach the Court for quantification.

The Respondent pays costs of suit on the ordinary scale.

PUNDU AND COMPANY,APPELLANT’S LEGAL PRACTITIONERS.

MAWERESIBANDA COMMERCIAL LAWYERS, RESPONDENT’S LEGAL PRACGTITIONERS.