Nedbank Zimbabwe Limited v Etilida (Etiridha) Deshe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/132/2025
CASE NO LC/H/30/21
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 1st MARCH 2022

JUDGMENT NO LC/H/132/2025

CASE NO LC/H/30/21

AND, 24th JULY 2024AND 25th MARCH, 2025

NEDBANK ZIMBABWE LIMITED	APPELLANT

AND

ETILDA (ETIRIDHA) DESHE	RESPONDENT

Before the Honourable Chivizhe, Judge:

For Appellant	-

For Respondent	-

Mr G. M. Nyangwa (Legal Practitioner) Mr A. Mtima (Legal Practitioner)

Mr M. Mugomeza (Legal Practitioner) Mr S. Z. Luthuli (Legal Practitioner)

CHIVIZHE, J:

The delay in the hand down of this judgement is sincerely regretted. On the 24th of July, 2024 this court issued an order to the following effect;

“1. Ground of appeal number 5 is struck off. 2. The appeal is dismissed with costs.

3. The judgement is to follow.”

The following constitutes the reasons for the order as granted.

The matter was placed before me as an appeal filed in terms of Rule 19 (1) of the Labour Court Rules, 2017 against the whole determination of theAppeals Board of the NEC for the Banking Undertaking (hereinafter referred to as the Appeals Board) as per Chairman P. Bvumbe dated 15th January 2021.

BACKGROUND FACTS

The Appellant is a financial institution endowed with the duty of being a custodian of depositors funds. The Respondent was employed by the Appellant as a Bank teller at the Appellant’s Msasa Branch in Harare. The Respondent was suspended from duty on the 16th of April 2019. She was charged with Category ‘D11’ (17) Failure to comply with standing instructions or follow established procedures resulting in substantial loss to the bank and Category ‘D11’ (15) Theft or Fraud during the period extending from 15 October 2018 to 9 March 2019. It was alleged that she had exchanged bond notes with the USD on a system at the disposal of the Bank called the Denomination Exchange Platform using what is known within the institution as the ‘Flexcube Core Banking System.’ This system was designed specifically for the exchange of similar currencies only. The Respondent was alleged to have been bringing Bond cash inflows into the bank and taking out USD cash from the Bank to the prejudice of the Appellant. This was happening at a time when the country was experiencing challenges. This was in breach of teller procedures as defined in the Flexcube Teller Module 5 Manual. TheAppellant alleged that the Respondent committed these fraudulent acts on a total of 25 occasions prejudicing the bank of USD7 770.00 worth of foreign currency. The Respondent was arraigned before the Hearing Officer on the 16th of May 2019 and was found guilty on both charges. She was subsequently dismissed from employment on the 9th of July 2019. The Respondent being aggrieved with the decision of the Hearing Officer. Initially she appealed to the Grievance and Disciplinary Committee (GDC) which deadlocked on the matter twice. Having failed to reach adecision, the matter was then referred to the NEC Appeals Board in terms of the Code. After considering the submissions and the evidence in the record, the Appeals Board exonerated the Respondent of the charges and accordingly reinstated her without loss of salary and benefits.TheAppellant was aggrieved by the decision of the Appeals Board. It therefore lodged the present appeal before this court.

GROUNDS OF APPEAL

1. The NECAppeals Boarderred andmisdirected itself in holding that therewas splitting of charges whenitwasclearthatthechargespreferredbythe Appellantwerestand-alone chargeswith stand-alone elements which could at law result in separate convictions separately.

2. The NEC Appeals Board grossly erred at law and in fact in holding that there was no standing prohibitory instruction as contained in Flexcube Teller Module 5 when it was clearly admitted that the Respondent underwent training and even admitted that she saw the Flexcube Teller Module 5.

3. The NEC Appeals Board erred and misdirected itself in finding that the backend report was not

credible and as a result affected its admissibility when such reservations should only affect its

weight.

4. The NEC Appeals Board erred and misdirected itself in finding that there was absence of

evidence that the Respondent brought in bond notes and took out United States Dollars in the

absence of evidence when the back-end report clearly documented these anomalies.

5. The NEC Appeals Board erred and misdirected itself in failing to appreciate the fundamental difference between mathematicaldenomination and currency value which facilitated the currency arbitrage to the prejudice of the Appellant.

6. The NEC Appeals Board seriously misdirected itself in ordering the reinstatement of the Respondent when it was clear that the very serious conduct of the Respondent amounted to a breach of trust that goes to the root of the employment contract between the Appellant and the Respondent therefore entitling the Appellant to use its discretion to dismiss the Respondent.

WHEREFORE, the Appellant prays on the present terms that:

1. The appeal be and is hereby allowed with costs on the higher scale of legal practitioner and client scale.

2. The decision by the NEC Appeals Board be set aside and substituted with the following determination;

"The appeal be and is hereby dismissed with costs of suit on the higher scale of legal practitioner

and client scale"

EVALUATION

GROUND #1- SPLITTING OF CHARGES

The Appellant, submitted through its Heads of Argument that there had been no unfair splitting of charges as found by the Appeals Board. There were two main tests as to whether or not there has been improper splitting of cases. These were summed up in R v Peterson & Ors 1970 (1) RLR 49 at 51F-G as follows:

“…. where a man commits two acts, of which each, standing alone, would be criminal, but does so with a single intent and both acts are necessary to carry out that intent, then he should only be convicted of one criminal offence. Another commonly applied test, which is a useful one in certain circumstances, is that the same evidence which is essential to prove one criminal act should not be used to prove another. Where the essential evidence in such cases proves two criminal acts, only one should be charged.”

The Appellant position in casu, was that, the charges levelled against the Respondent were clear, separate and distinct and that parties mandate was to deliberate on whether the Respondent had a single intent in carrying out the alleged acts. TheAppellant further submitted that, the test to be applied in determining whether there had been unfair splitting of charges was set out in Taruvinga v Cimas Laboratories SC19/05. On the basis of the authority there is no unfair splitting of charges where there are facts to the respondents conduct that constitute different offences. The issue in this case was whether the two offences were separate and distinct and could have been committed independently of each other. Reference was made to nAppellant also referred to S v Zacharia 2002 (1) ZLR 48 where the two tests of the single intent or continuous transaction test and the same evidence or dominant intent test were outlined. It was the Appellant’s position on the basis of the authorities there had been no splitting of charges in this case. The Respondent position that the charges had emanated from a single cause of action and therefore resulted in unnecessary splitting of charges was therefore without basis at law as the cause of action was irrelevant in assessing whether or not there was splitting of charges. It was further submitted that since the Respondent did not traverse her intention when conducting the 115 acts of misconduct, this entitled the Appellant to charge separately for the offences as it is trite that where an allegation is not specifically controverted, it is taken to have been admitted. Reference was made to Fawcett Security Operations (pvt) limited v Director of Customs and Excise and others 1993 (2) ZLR 121 SC.

The Respondent in counter, submitted that, the Appellant grossly misdirected itself in paragraphs 13 to 14 of their heads of argument when it alleged factual circumstances that did not apply to the Respondent. It was her further submissions that in the charge letter, the Appellant made it clear as to what constituted the charge and the conduct that gave rise to the charges. Theprimary allegation giving riseto thosecharges was the misuse of the denomination exchange platform resulting in the alleged prejudice. The alleged offences in casu, could not therefore have been committed independently of each other. The Respondent also contended that in applying the ‘single intent’ and ‘dominant intent’ test as highlighted in the Zachariah case cited by the Appellant, it revealed that the hearing officer had used the same evidence to find the Respondent guilty of both charges. It was Respondent’s submission therefore that the Appeals Board did not grossly misdirect itself in finding that both charges preferred emanated from the same act. This constituted an unfair splitting of charges. The Respondent prayed for the dismissal of this ground on this basis.

In oral submissions, Counsel for the Respondent, referred to a judgment by Chitapi J in S v Chikwaka HH813 at p6-7 as having outlined a new test different from the traditional tests

which were referred to by the Appellant and are outlined supra. The Respondent was urging the court to apply the same test. It is therefore this court’s view that the NEC Appeals Board did not misdirect itself in finding that both the charges preferred on the Respondent emanated from the same act of misconduct and constituted an unfair splitting of charges. Accordingly, this ground of appeal is meritless and ought therefore to be dismissed.

GROUND # 2-ABSENCE OF NO STANDING ORDER

Under this ground the Appellant submitted that the ruling of the Appeals board could not be allowed to stand because its findings in regards to the non-existence of the Flexcube Denomination Exchange Platform was not proven. It was the Appellant further submission that a standing instruction did not amount to a contract but rather a term and condition of an already existing employment contract. Therefore there was no extraneous need for it to show that there was indeed such a standing instruction. Especially when it had not been given an opportunity to go back to the branch to adduce evidence in proof of the same. Appellant also contended that it was incompetent for the Respondent to raise a bald and bare defence after it was established that she had undergone training. It was Appelant position the onus was on the Respondent to prove that she had not been privy of the standing instruction. Reference was made to the Supreme Court Case of Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) wherein the court held that it is a general principle that he who makes an affirmative assertion, whether plaintiff or Respondent, bears the onus of proving the facts so asserted. However, where a negative assertion can be said to be an essential element of a party’s claim or defence, that party bears the burden of proving it. The Appellant’s position was that the Respondent had the burden to prove the essential element of her defence. The Appeals Board therefore had no reason to interfere with the ruling at the disciplinary hearing when the Respondent had not proved an essential element in his defence. TheAppeals Authority had also gone on a frolic of its own in seeking to replace the decision of the disciplinary hearing. This conduct had been held as impermissible by the Supreme court in Nzara and Others vs Kashumba N.O. and Others SC 18/18. The Appeals Board had sought extraneous evidence after an admission had been made on record that the Respondent was given a form of instruction. The Appeals Board needed no further evidence beyond the admission as made. It therefore misdirected itself and this court could set aside their determination.

On the second ground of Appeal, Counsel for the Respondent submitted that the Appellant’s second ground of appeal does not challenge critical conclusions by the NEC

Appeals Board, particularly the fact that complainant failed to prove on a balance of probabilities that there was in existence a standing instruction and that the Respondent was made aware of the instruction. The Respondent was facing a charge under Category ‘D11’(17) which was a charge for ‘Failure to comply with standing instruction and follow established procedures resulting in a substantial loss to the bank.’ Counsel for the Respondent submitted that it was therefore imperative for the Appellant to first show that indeed there was a standing instruction and that it was given to the Respondent either expressly or impliedly. TheAppellant was the one alleging and hence it had the obligation to discharge the burden but it failed to show on a balance of probabilities that the instruction was indeed an existing rule which the Respondent was privy to.

Counsel for the Appellant contended that instead of assessing the evidence before it, the NEC Appeals Board went on to demand extraneous evidence including audit reports, paper trails and witnessess which was not necessary for the purposes of disposing the present appeal before it on a balance of probabilities. Since viva voce evidence had been presented before the hearing officer to corroborate documentary evidence prepared by the experts, the Appeals Board ought to have weighed the case against the facts on a balance of probabilities instead of expecting the Appellant to prove its case beyond a reasonable doubt. It was Counsels submission that since the Appellant had already secured a conviction, the burden of proofto convert the guilty verdict lay with the Respondent. It was Respondent’s onus to prove that the conviction made was not only irrational but a defiance of logic and only on this basis could the Appeals Board exercise its appellate powers. Counsel for the Appellant submitted that in the absence of irrationality in the defiance of logic, the tribunal could not use its appellate powers and such use of power was hence irregular amounting to a misdirection of the law.

Counsel for the Appellant submitted that the NEC Appeals Board misdirected itself in finding that there had been no standing instruction. Counsel contended that the naming of a standing instruction did not need to be congruent. As long as the Employee was aware of the existence of such an instruction, that standing instruction became binding. Counsel for the Appellant further submitted that the Appeals Board did not actively exercise its mind in defining fraud in terms of the Criminal Codification and ReformAct [Chapter9:23] nor did it properly put the actions of the Respondent within the definition given. This was in light of the fact that the enterprise of receiving Bond Notes in exchange for USD notes was a common and repugnant practice. Counsel for the Appellant further submitted that the Appeals Board failed to address the issue of prejudice and real risk. Counsel submitted that there was no need

to establish actual prejudice in convicting someone of fraud it was only necessary to prove that there was potential prejudice to establish a conviction.

Counsel forthe Appellant contended that the NECAppeals Board erred and misdirected itself in failing to appreciate the fundamental difference between ‘mathematical denomination’ and currency value which facilitated the ‘currency arbitrage’to the prejudice of the Appellant. It was Counsels submission that there is a distinct difference between ‘mathematical denomination’, which is the act of naming and ‘currency arbitrage’ which is the simultaneous purchase of a currency in one market and sale of it in another to take advantage of differences or fluctuations in exchange rates. Counsel further contended that the Appellant was holding depositors’funds which were fungibles in foreign currency and the Respondent took advantage to illicitly dispossess it of its specially denominated fungible into the Zimbabwean Dollar.

Counsel for the Appellant further contended that the Appeals Board seriously misdirected itself in ordering the reinstatement of the Respondent when it was clear that the very serious conduct of the Respondent amounted to a breach of trust that goes to the root of the employment contract between the Appellant and the Respondent therefore entitling the Appellant to use its discretion to dismiss the Respondent. It was Counsel’s submission that the Respondent had dismally failed in her role of handling depositor’s funds and therefore in accordance with the Supreme Court judgment in Standard Chartered bank Zimbabwe Limited v Chapuka SC125/04, where it was found that conduct inconsistent with the fulfilment of the implied or express terms of a contract of employment goes to the root of the contract giving the Appellant aprimafacie right to dismissthe Respondent.Appellants Counsel further submitted that the position of the law is clear that the employer has a discretionary power as to the issue of penalty to be imposed on any employee who has been found guilty of misconduct especially in a case such as this.

Counsel for the Appellant prayed that the court upholds all the grounds of appeal and award costs on a punitive scale as the on-going litigation procedures have resulted in it being put out of pocket. The court needed to note that the Respondent is legally represented.

RESPONDENT’S CASE

Counsel for the Respondent further submitted that the finding by the hearing officer is inconsistent with the Respondent’s testimony as the Respondent clearly denied ever attesting to the Flexicube Module as shown on pages 69 to 70 and page 73 of the Disciplinary hearing minutes. It is therefore Respondent’s contention that the Appellant attempted to challenge the

NEC Appeals Board on a finding it did not make. It was the NEC Appeals Board finding that the Complainant failed to show that the Respondent was given the instruction and it was also their finding that the Module 5 was not placed on record. The Appellant was given an opportunity to request an adjournment so as to provide the necessary proof but failed to do so. Counsel for the Respondent relied on the authority in Astra Industries v Chamburuka SC 27/12 where it was established that he who makes a positive allegation bears the burden to prove such allegation. It is therefore Respondent’s contention that this ground ought to be dismissed.

Counsel for the Respondent submitted that the back-end report submitted by the

Appellant did not provide credible evidence. TheAppellant failed to prove the charge of Theft or Fraud under Category D11 (5) because it failed to show that an audit was done, or that the back-end report produced was indeed system generated and specifically pertained to the Appellant and that it was indeed authentic. Counsel for the Respondent submitted that the authenticity of the alleged back-end report was challenged and it remained a fact in issue, therefore the weight attached to the report could not substantially prove the offence of Theft or Fraud in the presence of the glaring disparities. The Hearing officer therefore ought to have called for corroborative evidence from the work and reports pertaining to the Respondents activities at work. It is therefore Respondent’s contention that the NEC Appeals Board cannot be faulted for concluding that the Hearing Officer’s decision ought to have demonstrated why hebelieved that thetransactions in the back-end report pointed to the commission of the offence despite all the contestations raised against it. Counsel for the Respondent further submitted that it is a general rule of evidence that a party who wishes to produce a document must prove its authenticity by either leading evidence of the maker, signatory or person who witnessed its signing. The Appellant having admitted that he had no supporting documents to back the authenticity of its report thus accordingly informed the NEC Appeals Boards’ decision. It is Respondent’s contention that as long as no mention was made of the weight of the evidence presented by the Appellant, the allegation of probative value is thus misapplied and the ground of appeal must fail.

Counsel for the Respondent contended that the argument pertaining to the difference between ‘mathematical denomination’and ‘currency arbitrage’is ill advised and is being made for the first time on appeal. No allegations were made prior to pertaining to civil rights nor their infringement. Respondent’s Counsel submitted that at the relevant time, the exchange rate was USD 1 being equal to 1 Bond note therefore the question of taking advantage of fluctuating

exchange rates did not arise at this time. Counsel further submitted that theAppellants financial accounts for the year ended 31 December 2018 did not reflect any reports of the alleged ‘mathematical denomination’ versus the ‘currency arbitrage’ that was reported. It merely confirms that the Respondent was dismissed on allegations of theft that never occurred.

Counsel for the Respondent also submitted that there was no irregularity in the NEC Appeals Board’s decision to order the reinstatement of the Respondent to work as it was compliant with the law. Counsel pointed out that reinstatement is a primary remedy for an unlawful termination of employment. Counsel cited the authority in Mvududu v ARDA SC58/15 where the options of reinstatement or payment of damages in lieu of reinstatement are provided as lawful remedies. Counsel further submitted that the NEC Appeals Board also provided the option for payment of damages in lieu of reinstatement in the event that the Appellant no longer desired to reinstate the Respondent.

Counsel for the Respondent prayed that the appeal be dismissed with costs.

EVALUATION

On the 1st Ground of appeal that the NECAppeals Board erred and misdirected itself in holding that there was splitting of charges when it was clear that the charges preferred by the Appellant were stand-alone charges with stand-alone elements which could at law result in separate convictions separately, the position of the law is very clear. It is trite that an accused employee should not face two or more charges arising from the same transaction. In the case of Kuchera v Scientific and Industrial Research and Development Centre LC/H/222/07 the court held that;

“An employee should not face a multiplicity of penalties for a single act. The rationale of the rule against splitting of charges is to protect an accused person from a multiplicity of penalties arising from a single act.”

Moreover in the case of S v Mupatsi HH 73/11, it was held that,

“The rule against splitting of charges (which could more aptly be described as a rule of practice against the duplication of convictions) was designed to prevent a duplication of convictions……Accordingly, where the accused, in pursuance of a dominant intention, commits a number of offences, the proper thing to do is to charge him with only that offence which was his dominant purpose.”

In casu, it is clear that both charges levelled against the Respondent arose from one dominant alleged unlawful act of misusing the Flexcube Core Banking System to exchange Bond notes

for USD Notes in an attempt to defraud the bank and prejudicing the bank. On proper splitting of charges the appellant persists with submissions on paragraph 10 to 21 of the heads of argument. The set of facts used to prove both charges are exactly the same therefore leading to an undesirable splitting of charges when the Respondent ought to have been charged on one dominant act in light of the fact that all the other acts of misconduct were done in a bid to achieve the same final result. On the issue of unfair splitting of charges.

On the 2nd ground of appeal, the issue in question was whether or not there was a standing instruction. From a thorough reading of the record, it would appear that Counsel for the Respondent failed to reinforce their allegation of the existence of a standing instruction. The position in our legal system is very clear that he who alleges must prove. No allegations can stand on a baseless ground. In the case of Astra Industries v Chamburuka SC 27/12 it was held 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. This position has been affirmed by this court.”

The onus to discharge the burden of proof on a balance of probabilities lay with the Appellant. TheAppellant, simply put, had to show that indeed a standing instruction had been issued and it existed. Then secondly it had to show that indeed the Respondent had been made aware of such an instruction. Amere presumption that because the Respondent had gone for training on the Module meant that they knew is not sufficient to establish even on a balance of probabilities that the Respondent was privy to such. TheAppellant submitted that the Respondent had made an admission to being knowledgeable about the Flexcube Module 5, however this is contrary to the court’s reading of the record in which the court has found that the Respondent denied having ever attested to the Module. Counsel for Respondent responded on the issue of training in relation to the question and answer session on page 16. It would appear to be an admission but the Respondent however went on to say it was not the document. It therefore could not be concluded from her statements that indeed she had been taught the Flex system as suggested by the Appellant. To be precise, Respondent made the following exchange;

“Q:	Module 5 (Teller Module 5) are you aware of that E.D:	No I am not

Q:	Was this document brought to your attention or served upon you? E.D:    I only saw it

Q:	Did you sign for it at any given day. E.D: No.

….

Q:	Did you receive training on Flexcube? E.D: Yes

Q:	Did it include Module 5 for denomination exchange platform on Flexcube? E.D:    This was not part of my training.”

Respondent also referred to Metallic Zimbabwe versus golden mill private limited SC121/2015. An appellate court should not lightly interfere with factual findings made by a trial court unless such findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion or that the court had taken leave of its senses. The court was urged to find that the NEC Appeals Board carefully considered the factual issues raised and gave detailed reasons based on those facts. There was no misdirection. In reply Appellant intended that the court on the issue of admission look at page 70 paragraphs 1 to 8 it is clear respondent admitted to breach of a system.The Appellant in casu, therefore failed in their duty to discharge the burden. The decision made by the NECAppeals Board was legally correct and the Court is in agreement. On this basis the 2nd ground of appeal is hereby dismissed.

On the 3rd and 4th Ground of appeal, which will be addressed as one as they are based on the same issue, which is whether or not the back-end report provided sufficient and credible evidence and whether it was admissible or not. It is this court’s finding that the authenticity of the Back-end report having been challenged, the party producing the evidence thus had the burden of proving such authenticity as this was a material dispute. TheAppellant produced the report in support of the charge in Category D11 (5) pertaining to Theft or Fraud. The evidence was challenged on the basis of authenticity. The NEC Appeals Board requested the Appellant to corroborate the evidence through the production of an audit, proof that indeed the report had been generated by the system and pertained specifically to the Respondent. The Respondent also referred to Briggs v Lawrence Billiat Mine Such Investments HH 749 where Mathonsi J stated that it would amount to a traversing of justice were the court to grant provisional sentence on the basis of vague, and unproven documents whose authenticity has been challenged. Although the matter referred to a liquid document, the same principle should apply in this case. As apparent from the minutes of the proceeding there was a material dispute of fact as to the authenticity off the back-end report referred to by the appellant. The Appellant would also have provided other corroborative documents pertaining to the Respondent such as cash reconstructions, daily cash summaries, CCTV footage or Teller journals. The Appellant failed to produce any of these which would have strengthened their case. This was also against

the background that the Appellant had testified that the Appellants paperwork was balancing and no anomalies had been detected. In the case of Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H), Makarau JP (as she then was) held that;

“A material dispute of facts arises when material facts alleged by the Applicant are disputed and transversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

It is in light of this that such evidence could not be relied upon given the glaring disparities. The ball was in the Appellants’ hands to reinforce and corroborate their evidence. They dismally failed to do so in this case. On the issue of powers of an appeal court The Respondent had shot itself in the foot as it is clear that it is NEC Appeals Board which had interfered with the determination by the disciplinary committee without establishing gross irregularity in the determination. The decision of the Appeals Board to diminish the probative value of the evidence tendered was therefore correct. On this basis both grounds 3 and 4 of appeal are dismissed.

On the 5th ground of appeal, it is clear from a perusal of the record that this is a novel issue that was not raised before the tribunal aquo. The ground is therefore improperly taken before this court. It is a trite position at law no fresh issues may be raised on appeal before the court sitting to hear appeal. This ground is therefore struck out.

On the 6th ground of appeal, the question the court is faced with is whether or not the NECAppeals Board misdirected itself in giving an order for reinstatement of the Respondent. The Appellant failed to comprehensively prove their case on a balance of probabilities. They failed to substantiate and reinforce their allegations. Something cannot stand on nothing, therefore they failed to build a strong and convincing case against the Respondent. Failure to do so thus meant they did not have the requisite proof or power to dismiss the Respondent from work. On this basis the Respondent was entitled to be reinstated to work or paid damages in the alternative. The NEC Boards decision was well informed and substantiated by the outcome of the hearing. This ground of appeal is therefore meritless and is hereby dismissed.

On the issue of punitive costs, the Respondent submitted that the Appellant ought to be penalised as it had abandoned four (4) grounds of appeal without any prior notice to the Respondent or the court. Punitive costs can be granted in certain circumstances including frivolous or vexatious litigation, abuse of process, unreasonable conduct or contempt of court, however, abandoning grounds of appeal without notice is typically considered a procedural misstep rather than a malicious or egregious behaviour that would warrant punitive costs. It is

in light of this view, that the court was inclined to award costs on an ordinary scale against the Appellant.

These are the reasons for the order granted by this court