James Gumbeza v Zimbabwe Consolidated Diamond Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/101/2021
HARARE, 21 JUNE, 2021
CASE NO. LC/H/352/17
---------


IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/101/2021

HARARE, 21 JUNE, 2021	     	     	     CASE NO. LC/H/352/17

AND 16 JULY 2021

In the matter between:-

JAMES GUMBEZA									Appellant

Versus

ZIMBABWE CONSOLIDATED DIAMOND COMPANY			Respondent

Before The Honorable L. Hove, Judge:

For Appellant:	In Person

For Respondent:	N. Tambirai (Bere Brothers)

HOVE J:

The appellant was employed as a driver by the respondent. Allegations of theft were raised against him and he was found guilty and dismissed. This appeal is against conviction.

The facts which led to the theft were that respondent had received information that the Appellant was stealing diesel and other company property from the company. An investigation team was set up and it followed the appellant to hot springs. They advised him of their mission and he agreed to let the team search his house. The respondent alleges that instead of leading the investigating team to his house, he led them to a someone’s house. The investigating team included police details who cautioned him and he eventually led them to his house and a search was carried out but nothing was found. The investigating team however saw diesel stains from his house to another room that was locked. The team peeped through the window and saw what appeared to them to be containers filled with diesel, containers of used oil, a hammer and a grinder. The appellant allegedly told the team that the room belonged to his landlord who was in South Africa but refused to disclose the name of the landlord.

The appellant denied that he had deliberately led the team to a friend’s house, denied that he had stolen anything. A disciplinary committee however found him guilty and he was dismissed.

He appealed on the ground that the theft charges had not been proved as no stolen diesel or property was recovered.

The respondent argued that the basis of the conviction was circumstantial and on the basis of that circumstantial evidence, the respondent argued further, that it had managed to prove its case on a balance of probabilities.

The disciplinary committee found that the appellant had been away for a long unexplained period that day, that he had deliberately led the investigating team to someone else’s house, that when they got to his house there was evidence that diesel had been carried from his room to another room that was locked. That his actions on the day in question was indicative of someone who had something to hide. Further drops of diesel on the floor were clearly leading to a locked room.

The explanation given for leading them to someone else’s house was found to be unconvincing and during the disciplinary proceedings he changed the explanation to “I had panicked”.

This court is sitting as an appeal court in these proceedings and cannot interfere with findings of facts made by the disciplinary committee. This is a trite position of law. In the case of Hama v NRZ (1) ZLR 664 (S) the court stated this position in the following terms;

“The general rule of law, as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic……..that no sensible person who had applied his mind ………could have arrived at such a conclusion”.

The courts again stated  in the case of Nyahondo v Hokonya & others 1997 (2) ZLR 475 (SC) that;

“An appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained are so outrageous in their defiance of logic………….that no sensible person who had applied his mind to the question to be decided could have arrived at that decision”.

It is therefore clear that this court cannot interfere with the factual findings when nothing has been placed before it to show that the decision complained of was not only unreasonable but grossly unreasonable.

The employer had received word that the appellant was stealing diesel and other company properly. An investigating team was sent to his house and the appellant deliberately took them to someone else’s house. When he eventually led them to his house there was evidence that diesel had been carried from his room into another locked room. Drops of diesel showed the trail. The appellant refused to open the room but said it belonged to his landlord.

The investigating team looked through the window and saw what appeared to be containers full of diesel.

Labour disputes like all civil disputes are not proved before a reasonable doubt. A disciplinary committee merely needs to balance probabilities and see which is the more probable of the two versions.

The concept of balancing probabilities was explained in the case of Miller v Minister of Pensions [1947] 2 ALLER 372, 374 and quoted with approval by the Supreme court in the case of British American Tobacco v Jonathan Chibaya SC 30/19, The court stated as follows;

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, ‘we think it more probable than not, the burden is discharged”.

The authors Hoffman and Zettert in the book of South Africa Law of Evidence 4th Edition, it was stated as follows;

“In a civil case, if the facts permit more than one inference, the court must select the most plausible”.

The circumstantial evidence in this case favoured the employer. It was, in my opinion sufficient to discharge the onus which rested upon the employer. The probabilities were that the appellant most probably took the investigating team somewhere before leading them to his house to allow for the removal of stolen diesel and locking it away in another room.

The decision of the disciplinary committee can therefore not be classified as irrational. This court cannot interfere with the findings of facts.

In the result, the following order is made;

Order

1.	The appeal be and is hereby dismissed.

2.	Each party will bear its own costs.

Messrs Sawyer & Mkushi -	Respondent’s Legal Practitioners c/o Bere  Brothers Legal Practitioners