Panganai Muza v CBZ Bank Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/218/24
HARARE 13 FEBRUARY ,2024
CASE NO. LC/H/985/23
AND 16 MAY, 2024
In the matter between: -
PANGANAI MUZA
Appellant
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THE LABOUR COURT OF ZIMBABWE
HARARE 13 FEBRUARY, 2024
AND 16 MAY, 2024

In the matter between: -

PANGANAI MUZA
Appellant
Versus
CBZ BANK LTD
Respondent

Before the Honourable L. Hove, Judge:

For Appellant : In Person
For Respondent : Mr .P.C Fanti

This is an appeal against the decision of the Appeal Officer’s determination which upheld the decision to find the appellant guilty of acts of misconduct and to dismiss him.

At the hearing of the appeal the respondent’s representative raised preliminary points which challenged the grounds of appeal filed in casu. The grounds of appeal are four and they are that;

Ground of Appeal Number 1

The decision of the appeal’s officer upholding the appellant’s conviction and dismissal is grossly unreasonable to warrant interference by this Court, specifically so because the appeal’s officer did not apply his mind to the matter neither did he provide reasons for dismissing the appellant’s appeal and upholding the disciplinary authority’s decision.

Ground of Appeal Number 2

The appeal officer further misdirected himself and erred at law in failing to make a determination at all on the presence or otherwise of bias and failing to admit evidence by appellant proving the said bias by the hearing officer. There was no basis in refusing to do so especially considering that bias had been raised as a ground of appeal.

Ground of appeal number 3

The appeals officer grossly erred and misdirected himself in upholding the disciplinary authority’s guilty verdict and dismissal penalty. This is more so because;

a) The disciplinary authority erred in failing to find that there is no where in the eco cash agent services manual subsisting at the relevant time, that included or specified the appellant’s role in the reconciliation process, instead the manual clearly states that the teller and cash officer were sorely responsible for the process.

b) Assuming but not conceding that the appellant was supposed to be aware of the e-wallet system, the disciplinary authority and by extension the appeals officer, erred in failing to note that the manual did not specify who was supposed to do the e-wallet reports.

c) The appeals officer erred in failing to find that the disciplinary authority had grossly erred and misdirected himself in failing to find that there was no credible evidence to prove that the appellant had taken cash for his personal use through ‘I Owe You’ as complained of.

d) The disciplinary authority failed to note that the eco cash withdrawal were distinguishable and not applicable to RBZ imposed limits., particularly so as the Ecocash limits were specifically outlines in the relevant manual on paragraph 1.6 thereof. Further because the respondent was merely an Ecocash agent and did not have the authority to alter the conditions (limits) provided by the principal (Ecocash). Consequently, there was no violation of any limits in this regard.

e) The Disciplinary Authority erred in failing to note that the investigation report clearly outlined that the encashment through the Ecocash platform was flawed as withdrawals could not be monitored. Consequently, and considering the flaws in the system as well as the clandestine manner in which tellers concealed and misrepresented information on the Ecocash system, appellant could not be found guilty of failing to apply measures that were not in place either in the manual or in practice.

**Ground of Appeal Number 4**

Consequently, the Appeals Officer erred in confirming the Appellants guilt on the charges and upholding the dismissal penalty.

**Preliminary points by respondent**

The respondent challenged the appellants ground of appeal and argued that grounds of appeal numbers one and three were incompetent. It was argued that the grounds of appeal were so fatally defective that they ought to be struck off the roll.

**Ground of appeal number one and three**

It was submitted that these grounds are defective in that they failed to attack any particular finding made by the appeals officer. The grounds are alleged to lack precision as is required in terms of the rules. It was also alleged that the ground sought to attack factual findings without alleging any gross unreasonableness in the factual findings.

**Appellant’s response**

The appellant argued that these same grounds had been raised in previous proceedings and they had not been found to be wanting in any way. It was submitted that the Registrar had accepted the notice of appeal without finding any fault with the grounds.

**The court’s analysis ground 1 and 3**
 The court considers that it is not the function of the registrar of the court to decide whether or not grounds of appeal are competent at law. The Registrars responsibility does not include the judicial functions which are to be functions of the court.

The court also notes that none of the previous cases referred to by the appellant considered the issue of whether or not the grounds of appeal were fatally defective.

The issues raised are therefore properly before the court.

Ground number 1 is so widely cast that it seeks to challenge the entire determination it reads as follows;

“The decision of abuse officer upholding the applicant’s conviction and dismissal is grossly unreasonable to warrant inference by this court specifically so because the appeals officer did not apply his mind to the matter neither did he provide reasons for dismissing the appeals appeal and upholding the disciplinary authority’s decision.”

This ground of appeal is in my opinion bad in that it is so widely expressed that it seeks to challenge every aspect of the decision appealed against. It is also not attacking any specific finding made by the appeal authority. In the case of **Sonongo v Minister of law and order 1996 (4) SA 384** the court held that;

“It has been held that grounds of appeal are bad if they are so widely expressed that they leave the Appellant free to canvas every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or ruling of law appealed against so vaguely as to be of no value either to the court or the respondent, or if they in general fail to specify clearly and unambiguous terms exactly what case the respondent must be prepared to meet.”

The first ground of appeal failed to identify with precision the findings that is being attacked. It is not clear in what way the appeals authority failed to apply his mind to the matter and also what aspects of the disciplinary authority’s decision did the appeals authority fail to give reasons for. The ground of appeal does leave the appellant free to canvas every finding of fact and ruling of law making it bad at law.

Ground of appeal number 3 is clearly not concise and neither is it clear. It does not specify which findings are being challenged. This ground of appeal is argumentative and is not clear on what findings are being challenged.

There is therefore merit in the preliminary point that grounds of appeal 1 and 3 are a kitchen sink approach against the whole determination which do not attack any particular finding. See the case of **ZACC v Mangwiro and another (11 of 2022) [2022] 11.**

**Grounds of appeal number 2**

The second round of appeal is clearly incompetent. It seeks to raise issues of bias in an appeal. Bias is clearly an issue for review and not an appeal.

In an appeal the court is limited to the substantive correctness of the decision appealed against while in review the court does not concern itself with the substantive decision.


Allegations of bias address issues of procedural fairness and are not concerned with the substantive correctness of a decision. See Herbstein and Van Winsen. The civil practice of the High Courts of South Africa 5th Edition page 1271, Where the learned authors state that;

“The reasons for bringing proceedings under review or an appeal is usually the same vis to have the judgments set aside. Where the reason for wanting this is that the Court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where however, the real grievance is against the method of the trial it is proper to bring the case on review.”

It is therefore improper to bring review issues like bias in an appeal. Therefore, the second ground of appeal is incompetent.

**Ground of appeal number 4**

This is not a proper ground of Appeal. Like the 1st and 3rd ground of appeal, it is vague, it is not clear what specific finding is being attacked. It appears that the ground of Appeal is simply a complaint that the tribunal a quo was wrong in making a particular finding. The basis of the attack is not stated. The Supreme Court has frowned upon similar grounds of appeal. See Mahommad v Kashiri SC 85/19, where the court stated;

“The appellant’s first ground of appeal simply complains that the court below was wrong in making a particular finding and should have instead made a different finding. The basis of the attack is not stated. Further, the ground of appeal does not indicate why the finding of fact or ruling is to be criticized as wrong, is said to be wrong.”

In the premise all the grounds of appeal are found to be fatally defective. The appeal must therefore be struck off the roll.

**Order:**

1. The appeal be and is hereby struck off the roll.
2. Each party will bear its own costs.
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