Obey Chikarakati v OK Zimbabwe Limited

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/60/20
HELD AT HARARE ON 19TH NOVEMBER, 2019
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	         JUDGMENT NO. LC/H/60/20

HELD AT HARARE ON 19TH NOVEMBER, 2019             CASE NO. LC/H/296/18

AND 28TH FEBRUARY, 2020

In the matter between:-

OBEY CHIKARAKATI							        Appellant

AND

OK ZIMBABWE LIMITED						       Respondent

Before the Honourable Mhuri, J.

For Appellant		:	Mr. R. Dembure (Legal Practitioner)

For Respondent		:	Mrs. R. Matsika (Legal Practitioner)

MHURI J.

This is an appeal against the decision of Respondent’s Final Appeals Committee which upheld the tribunals aquo (Appeals Committee and Disciplinary Committee) verdict of guilty and penalty of dismissal imposed on the Appellant.

In a judgment LC/H/268/2019 I ruled that appellant’s 1st ground of appeal is a proper ground of appeal as such this appeal proceeded on the basis of this ground only.

The ground reads as follows:-

“The respondent’s Final Appeals Committee erred by upholding the conviction and dismissal of the Appellant when it was clear that there was no evidence that the Appellant had indeed committed the offence in question.”

I will deal first with the issue raised by respondent’s legal practitioner to the effect that as the ground does not allege any unreasonableness in the manner it is couched, it should be struck out.  The respondent’s argument was that the allegation should have been made in the ground of appeal and not in the heads of argument as was done by appellant t.  The failure to make the allegation in the ground makes the appeal fall.

Much as the respondent’s argument is legally sound, this issue was put to rest by the Supreme Court in the case of:-

ZVOKUSEKWA

vs

BIKITA RURAL DISTRICT COUNCIL      SC 44/15

in which GARWE JA when dealing with a similar argument and qualifying the remarks earlier made in the case of –

RESERVE BANK OF ZIMBABWE

vs

GRANGER AND ANOTHER        SC 34/01

had this to say at page 9 paragraph 22 of the cyclostyled judgment:

“In my view, the remarks in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think be guided by the substance of the grounds of appeal and not the form……….. what is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.  If it is clear that an appellant is criticising a finding of an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper merely because the words, “there has been a misdirection on the facts which is so unreasonable that no sensible person……. would have arrived at such a decision” have not been added thereto …….. and the failure to include the words referred to above would not render such an appeal defective …..”  (Emphasis added)

A reading of the ground of appeal shows that appellant is attacking the tribunals aquo’s findings on the basis that there was no evidence led to prove the charge.  In as much as there was no specific reference to the issue of unreasonableness in the ground of appeal, I find that this is not fatal to the extent that the appeal can be said to be defective.

In that regard, the appeal is proper and I consequently dismiss respondent’s argument and issue as raised.

I now turn to deal with the merits of the appeal.

It is a trite position of the law that an appellate court will not lightly interfere with a lower court’s decision on findings of facts unless it is satisfied that the lower court grossly misdirected on the evidence as to come up with an irrational decision.

HAMA

vs

NATIONAL RAILWAYS OF ZIMBABWE 1996(1) ZLR 664 (S)

This principle was succinctly put by ZIYAMBI JA in the case of –

ZINWA

vs

JOSEPH MOYOUNOTSVA   SC 28/2015

at page 7 paragraph 16 of the cyclostyled judgment thus

“It is settled that an appellate court will not interfere with factual findings made by a lower court unless those 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 put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it: or that the decision was clearly wrong.”

Both parties were in agreement that the above is the applicable principle in casu.

The evidence that was placed before the Disciplinary Committee for consideration were in the form of complainants’ written statements and witnesses written statements.  Appellant’s argument was that the written statements relied on were clearly and utterly inadequate to sustain the charges.  Appellant had explained his relationship with Mr. Jonas (complainant) which explanations, were not discarded at all, as such the Disciplinary Committee’s decision to convict appellant was clearly wrong and irrational and warrants interference by this Court.

In a nutshell, the allegations that were levelled against appellant were that in breach of the Rules pertaining to the OK Shop Easy Club Promotion, appellant caused the points which were supposed to accrue to a customer accrue to his own account.

The witnesses’ written statements were to this effect:-

Mr. Jonas (complainant 1)

My name is Jonas Rwinikiza.  I am your regular customer one of your managers took my points when I came to buy goods worth $303,20 on the 9th September, 2018.  He works at the receiving bay.

Mrs, Musayidire Zawadi (complainant 2)

My name is Musayidire Zawadi.  I am your regular customer.  We bought goods worth $303,20 on 9 September, 2018 and one of your managers Mr. Chikarakate took my points.  I am so disappointed I need my pots back.

Tinashe Tazvivinga (Respondent’s Buying Assistant)

On the 9th September …….. while walking in the shop I met Mr. Jonas our regular customer……. buying his groceries, he called me and started complaining that his token of appreciation promotion points…… were taken by the receiving bay Manager who happens to be Mr. Chikarakate.  He indicated that the manager in question had told him that he could only get the stock quantities he had asked for on condition that he gives points for the purchase to Mr. Chikarakate.

On the 12th of September another customer came to buy bulk purchases and the same manager Mr. Chikarakate also wrote his phone number on a small piece of paper which he gave to me and instructed me to give to the till operator so that he could enter the points for the purchases. …………..  The customer had to also let go of his points as he wanted the stocks…………………..

Nhamo Wadzingenyama (Buying Assistant)

1st incident

Three weeks ago one of our regular customers Mr. Jonas came to buy some cooking oil.  They were twenty boxes.

We had to dispatch the cooking oil through the receiving bay.  While we were loading the cooking oil into the customer’s truck, the wife of the customer started asking Mr. Jonas why they had not been awarded bonus points on their purchase.

Mr. Jonas comforted his wife and asked her to calm down as there was no need to complain because they had got the stock which they wanted.  The wife complied and it ended like that.

2nd incident

On the 9th September, Jonas came back to buy some cooking oil, ……………. we informed the receiving bay manager (Mr. Chikarakate) who was on duty.

He informed me to call the customer to the branch manager’s office where he was.  I was instructed to take the cooking oil to the till points while Mr. Chikarakate and Mr. Jonas remained sitted in the branch manager’s office.  Mr. Jonas later came to the till points on payment and produced a small paper which had a cell number written on it.  The cell number belonged to Mr. Chikarakate.  Mr. Jonas instructed the till operator to enter the points of the purchase to the number which belonged to Mr. Chikarakate.

Praymore Mudete (till operator) and Ronald Gwenzi (till operator)

The till operators’ evidence was basically the same, that when they served the customers, they were given a paper on which appellants’ cell number was written for them to credit the points.

Appellant did not dispute the fact that his cell number was used to enter/credit the points for purchases done by the customers.  His argument before the disciplinary committee was that he had a business relationship with Mr. Jonas and that they (Jonas and wife) should have been called for a discussion of this issue by the branch manager instead of rushing to institute disciplinary proceedings.

It is noted that the transaction processed by Ronald Gwenzi was for a different customer and not for Mr. Jonas.  Appellant did not state what relationship was there between him and this other customer for him to have the points credited to him.

A close examination of the written statements reveals that:-

Mr. J. Rwinikiza’s wife complained to her husband why they had not been awarded bonus points on their purchases.

Mr. Jonas also complained about his token of appreciation having been taken by appellant.

For them to get the quantities of stock they required they had to give their points to appellant.

The customers were disgruntled.

Another customer also parted with his/her points in the same manner.  The points were credited to appellant’s cell number.

Weighing this evidence against appellant’s explanation that he was the customer and had a business relationship with the Rwinikizas, the Disciplinary Committee was correct in finding the evidence of the witnesses more credible than that of appellant.

It is not disputed that

Appellant did not appear before the till operators to pay for the purchases made.  It was other people.

At the till papers on which appellant’s cell number was written were given to the till operators for the number to be credited with the points.

Appellant benefited from the points so credited to him by redeeming the points with utensils and airtime.

While there could have been a business relationship between appellant and the Rwinikizas, why would they complain if appellant and not them was the customer and would rightly be entitled to the points.  Further, why would the Buying Assistant be disappointed and decide to report to the Branch Manager.

Faced with such evidence, it was only reasonable for the Disciplinary Committee to find appellant guilty.

The decision which was confirmed by the subsequent appeals authorities cannot be said to be irrational or grossly unreasonable as to warrant interference by this Court.

To that end, I will dismiss the appeal in its entirety.

It is accordingly ordered that the appeal be and is hereby dismissed with costs.

MABULALA & DEMBURE – Appellant’s legal practitioners

WINTERTONS – Respondent’s legal practitioners