Lesley Mudembe v ECODIT

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/355/24
HELD AT HARARE 17TH JULY 2024
CASE NO LC/H/489/24
AND
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE

Held at Harare 17th July 2024

AND
In the matter between

LESLEY MUDEMBE

And

ECODIT

Judgment No LC/H/355/24

Case No LC/H/489/24

Appellant

Respondent

Before the Honourable Makamure Judge.

For the Appellant: C. Muchichwa

For the Respondent: S. Sadomba

Makamure J:

This is an appeal.

The following are the grounds of appeal and I quote:

1. ‘The Tribunal a quo erred and misdirected itself on a point of law in failing to appreciate that the essential elements of the offence of embezzlement had not been proven.


2. The Tribunal a quo erred and misdirected itself in failing to canvass the factual issues that: a) Appellant had no obligation whatsoever to issue a report over the deducted tax.

   b) The funds in question were disbursed to the MEL/CLA Manager as travel advance in respect of which he had control over and not the Appellant.

   c) Investigations commenced only after the enumerators had been repaid in full.

   d) The MEL/CLA Manager even admitted during the hearing that the funds were informally handed over to complainant who only agreed to assist him.

   e) The tax deductions made by the Appellant were only provisional and were repaid to the enumerators before any investigations had commenced.

   f) In previous sessions, the Appellant only disbursed funds to enumerators not from an advance but from the perspective of being the Field Finance and Administration Officer thus the circumstances with the dispute were different.

3. The Tribunal a quo grossly misdirected itself in proceeding to issue a determination well after the expiry of thirty (30) days thus being in violation of paragraph 10.6 of the Code of Conduct.

4. The Tribunal a quo grossly misdirected itself at law when it decided a matter in respect of which it no longer had jurisdiction.

5. The Tribunal a quo erred and misdirected at law (sic) in failing to interpret the Appellant’s job description in relation to the disbursement of the funds to the enumerators.

6. The Tribunal a quo erred and misdirected itself at law when it failed to appreciate that the irregularities during the disciplinary hearing were of such a magnitude that justified setting aside the whole disciplinary proceedings.


7. The Tribunal a quo erred and misdirected itself in failing to appreciate that the mitigating factors submitted by the Appellant far outweighed the aggravating factors and that the Disciplinary Authority erred in failing to consider such mitigatory factors.’

The respondent had a preliminary point to raised, but it was abandoned so that merits of the appeal could be considered.

The appellant was employed by the respondent as a Field Finance and Administration Officer. He was stationed at Chiredzi. He was on a fixed term contract running from 1st October 2022 to 30th September 2023. On 12th July 2023 he was charged with ‘embezzlement’ in terms of the Code of Conduct of the National Employment Council for Welfare and Educational Institutions ( NECWEI) (the code). Disciplinary proceedings were conducted against him. He was convicted and penalized with dismissal. He appealed but his appeal was dismissed. He was aggrieved by that outcome and appealed to the National Employment Council (NEC). At the NEC the Designated Agent (DA) who heard it dismissed the appeal. Still aggrieved by the outcome he has appealed to this Court raising the grounds listed above.

The facts of this matter are that during the course of his duties the appellant disbursed funds on behalf of the respondent to certain Enumerators (enumerators). The enumerators were contracted to the respondent as independent contractors. In terms of the contracts between the enumerators and the respondent, their daily payments were forty United States Dollars (40USD). In terms of the contracts the enumerators were responsible for paying their own tax. However, when the appellant disbursed the payments to the enumerators, he made deductions for tax which the respondent was unaware of. When the appellant submitted a reconciliation statement, he did not disclose the deductions which he had made. As a result of the deductions, some of the enumerators complained to the respondent. Appellant was as a result charged as indicated above and disciplinary proceedings were conducted against him. During the course of the disciplinary proceedings the appellant was not able to justify why he made the tax deductions when it was clear that this was the enumerators’ responsibility and not that of the respondent. Further when he made the deductions, he made deductions of different amounts to different enumerators. There was no standard way in which the said deductions were done. By the time that disciplinary proceedings were conducted the appellant had refunded some of the enumerators. He made some of the refunds through the Ecocash platform. Eleven(11) enumerators confirmed to having received refunds through Ecocash. An amount of seventy-six United States Dollars(USD76) was however still outstanding.

At page 229/425 is a written statement by one of the enumerators confirming that he had some deductions made on what was due to him and that instead of getting USD400.00 he got USD340.00. He worked for 9 days instead of 10 days but still he should have got more than USD340.00 since then daily rate was USD40:00. At page 72/425 is a copy of a ‘Whatsapp’ message where the appellant advised the enumerators that ‘Your contracts was (sic) indicative that you were liable for taxation as such it was going to be very difficult to ask each one of you to return the tax money had there been any question or request to process our allowances net of tax…’ (Emphasis added)

During the course of the initial disciplinary proceedings, the appellant was asked whether there was a service agreement between the respondent and Econet Wireless (since he used the Ecocash platform to make the refunds). His responses were evasive and he was not able to confirm that the Ecocash platform was a proper platform in terms of the respondent’s policies or that it was one of the registered service providers for the respondent. In fact, the entire disciplinary proceedings are replete with evasive answers in trying to explain why he unilaterally made the tax deductions in the face of clear terms of the contracts.


As is common cause he was convicted, his appeal was dismissed. On the next appeal level at the NEC, in his analysis the DA had this to say, among other things: ‘Appellant failed to report the deductions in financial records and did not remit the deducted amounts as tax. Appellant’s lack of transparency and withholding of information about the deductions, and his failing to submit the deducted funds raises serious concerns. … Appellant sent Whatsapp messages to enumerators on 12July 2023, informing them that their contracts indicated that they were liable for taxation. This contractual clause referred to by the Appellant does not exist. This suggests a deliberate attempt to mislead.’

I will now refer to the relevant portion of a sample of a contract between the respondent and the enumerators/ Independent Contractors

‘Independent Contractor Agreement

(1)…

(2) FEES: The Contractor shall be paid a daily rate of USD 40.00 (Forty United States Dollars), gross (inclusive of tax), and inclusive of approved out-of-pocket, expenses, within thirty (30) business days of ECODIT receipt of an undisputed timesheet and written notification from ECODIT Representative (as defined in section 6) that all activities, outputs and deliverables, as outlined below, have been successfully completed, accepted and approved… (Emphasis added).

…’

When the parties appeared in Court argument on behalf of the appellant was that the offence was not proved; that the investigations of the matter took place on the 12th of July 2023 and therefore appellant did not derive any benefit from the funds which he had deducted. It was also argued that the disciplinary committee had no jurisdiction to deal with the matter. It was further argued that disbursement to the enumerators was ordinarily in the form of cash but other ways could be used to pay the enumerators. It was also argued that there were irregularities during the hearing and that such irregularities included unfair hearing. It was argued that there was bias when the matter was determined on appeal. It was also argued that mitigatory factors were not considered. The heads of argument submitted on behalf of the appellant on ground 1aver that the respondent failed to establish whether the appellant derived any benefit from the funds in question. On ground 2 the heads simply confirmed that there was a gross misdirection ‘on the factual issues raised under that ground’. With respect to grounds 3and 4 it was submitted that the matter was completed after the expiry of thirty(30) days which was a misdirection on the part of the Tribunal a quo. The case of **Matenhere v Conway College SC 16/24** was cited in support of the submission. The submission with respect to ground of appeal number 5 was that the appellant derived no benefit from the funds in question. With respect to ground of appeal number 6 the submission was that there were irregularities in disciplinary proceedings. The case of **Dalny Mine v Banda 1999(1)ZLR 220** was cited as the authority. I will hasten to point out here that the question of irregularity or irregularities is a reviewable ground. Thus ground 6 is therefore not properly before the Court. The submission with respect to ground of appeal number 7 is a repetition of what was submitted for grounds 1 and 5, that is that the appellant did not derive any benefit from the conduct in question.

In response it was argued on behalf of the respondent that the offence committed by the appellant was proven and that it was not the function of the Committee to prove the allegations levelled against the appellant. It was argued that the appellant had no authority to deduct the funds as he did; that even though he had made some refunds, an amount of seventy-six United States Dollars remained unaccounted for by the time that disciplinary proceedings were conducted; that the reconciliations he submitted, did not reflect that he had made some deductions.; that he sent ‘Whatsapp’ messages after the investigations had begun in order to justify what he had done; that the deductions he made were inconsistent as he deducted different amounts from the different enumerators; that he did not document the deductions. It was submitted that under the circumstances, grounds of appeal one and two had no merit. Equally, it was submitted that grounds of appeal 3 and 4 had no merit as they raised reviewable issues. It was argued that ground number 6 was vague and embarrassing as it was too general. It was submitted that in any event a person must escape liability because they are innocent and not because of procedural irregularities and further that not all procedural irregularities vitiate disciplinary proceedings. The case of **Air Zimbabwe (Private) limited v Chiku Mhensa and Mavis Mwarveye SC 89/04** is one of the cases which was cited in support of this submission. It was also argued that the prayer was incompetent. This was in view of the fact that the appellant was on a contract of fixed duration and therefore could not pray for reinstatement. His contract was to end at the end of September 2023 and therefore should he succeed in the appeal, he could only be compensated for the remainder of the contract. It was submitted that under the circumstances the appeal had no merit and was an abuse of the court and should be dismissed with costs on the punitive scale. In addition to what has already been cited, some of the other authorities cited in support of the respondent’s case include: **RBZ v Granger and Anor 47/09; Zvokusekwa v Bikita Rural District Council SC 34/15; Barros and Anor v Chimpondah 1999 (1) ZLR 58 (S); Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S); S v I Solano 1985 (1) ZLR 62 (S); Filikini v Attorney General 1990 (1) ZLR 105 (S); Nyahuma v Barclays Bank (Private)Limited SC67/05.**

In response Mr Muchichwa who appeared for the appellant conceded that the prayer was defective as submitted on behalf of the respondent.
 In the present appeal the facts are not disputed. The appellant deducted money from enumerators without authority and also contrary to the contracts of the enumerators. He was charged with and convicted of embezzlement of the funds. He could not meaningfully explain why he made those deductions. ‘To embezzle’ is defined as: ‘to appropriate to one’s own use

, as money or property entrusted to one’s care’. Although the appellant refunded some of the funds, there was still an amount outstanding. However, by the time that the refunds were made, complaints had already been raised. That means the offence was proved. He did not satisfactorily explain what he did with the money. So even if he had reimbursed all the money, that does not take away the fact that he had unlawfully taken the money in the first place. Since it was not for the benefit of the respondent, it must have been for his own benefit. The appellant therefore embezzled the funds meaning that there is no merit in the first ground of appeal. Ground two is covered by the fact that the contracts in question were responsible for their own taxes. The appellant had no justification at all to deduct any money from the contractors’ payments. So, this ground has no merit. On the third ground, the appellant raises a reviewable issue. The ground is therefore not properly before the Court. In the fourth ground of appeal, the appellant raises the question of the absence of jurisdiction on the part of the Tribunal aquo. He does not explain in what manner the Tribunal lacked jurisdiction. In the event that the ground is an extension of ground 3 where the stance taken is that the matter was completed after the expiry of thirty (30) days in contravention of S101(6) of the Labour Act, Chapter 28:01(the Act), then he too is to blame. S101(6) of the Act empowers ‘the employee or the employer’ to refer a matter to a labour officer where a matter has not been determined within thirty days from the date that the employee was notified of commencement of proceedings against him. Since he did not take the initiative to refer the matter to a labour officer, he acquiesced with the procedure adopted by the respondent. In any event this is a reviewable issue and is not properly before the Court. In ground number 5, the appellant does not say how his job description ought to have been interpreted. The ground lacks clarity. As correctly pointed out on behalf of the respondent, the ground is vague and embarrassing. This ground too has no merit. Ground number six refers to irregularities. The ground is not clear. This ought to have been raised by way of review. Ground seven refers to mitigation. This obviously has to do with what the appropriate penalty ought to have been. It is trite in this jurisdiction that the question of penalty rests with the employer. In the case of **Tregers Plastics (Pvt) Ltd v 1) Woodreck Sibanda (2) Paul Magondo SC22/12** the Supreme Court stated that: ‘It is now settled law that where the misconduct goes to the root of the employment relationship an employer is entitled to dismiss the employee. Further, the principle has now been firmly established that an appellate court will not interfere with an exercise of discretion by the employer unless there has been a misdirection in the exercise of such discretion. Innsor Africa (Pvt) Ltd v Chimoto SC 6/2012; Malimanji v Central Africa Building Society 2007 (2) ZLR 77 (S) …’. In the present case, the appellant has not shown the misdirection committed by the employer in the exercise of its discretion to impose the appropriate penalty. This ground has got no merit.

After considering all the grounds of appeal, none has been found to have any merit.

After everything has been considered, it cannot be argued that the offence committed by the appellant was not proved. In **British American Tobacco v Chibaya SC 30/19** the Supreme Court had this to say:

‘However in cases where not only one inference can be drawn, the court in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H), 176, held that;

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”(emphasis added)

In Miller v Minister of Pensions [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained 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, but if the probabilities are equal it is not.” (emphasis added)

In the book, The South African Law of Evidence, 4th Edition, Hoffman and Zeffertt state as follows:

“In a civil case … if the facts permit more than one inference, the court must select the most plausible. If this favours the plaintiff, he is entitled to judgment. If inferences in favour of both parties are equally possible, the plaintiff has not discharged the burden of proof….

Selke J held in Govan v Skidmore that the selected inference must ‘by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.’”

Under the circumstances of the present case, the respondent discharged the onus required of it before the Disciplinary Committee. However, when the appellant took the matter on appeal he did not succeed initially before the Appeal Authority and later, before the DA. The appeal before this Court was a dismal failure of an attempt to prove on a balance of probabilities, that the offence was not committed. The appellant even raised some procedural issues in an effort find fault with the decision of the DA which is now under scrutiny. That did not help. The appellant appears to be clutching at straws, so to speak. The probabilities are that he committed the offence. In the case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 457(S) the Supreme Court stated that:

‘In civil, as opposed to criminal, cases, it is sufficient for a plaintiff to establish, that, on the evidence adduced by the parties, his is the more probable cause.

...

I have not been furnished with any reason to depart from the general rule that an appellate court will not interfere with a 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 of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’

In **Hama v National Railways of Zimbabwe (above)** it was held that: ‘The general rule of the 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 or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.’ In the present matter the DA dismissed the appeal which was before him. His decision in my view cannot be said to be ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a decision’. I respectfully associate myself with the sentiments of the Supreme Court in the Hama v National Railways of Zimbabwe (above) case. In my view, the decision of the DA is beyond reproach. I find no error with it.

Having stated the above, I find that there is no merit in all the grounds of appeal. The appeal has no merit. It can only fail.

The respondent has asked for costs on the punitive scale. This is it was submitted, is because the appeal is an abuse of the Court. Indeed, the Court has a duty to protect itself. I did not hear dissenting views on behalf of the appellant on this issue. While therefore there is no opposition to the prayer for costs, the question of costs remains in the discretion of the Court. It is my considered view that costs on the ordinary scale are punitive and deterrent enough.

IT IS ORDERED THAT:

1. The appeal be and is hereby dismissed.

2. The appellant bears the costs of suit on the ordinary scale.

MUSHANGWE & COMPANY, APPELLANT’S LEGAL PRACTITIONERS.

GILL GODLONTON & GERRANS, RESPONDENT’S LEGAL PRACTITIONERS.


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