Pearson Gwamanda v Tobacco Research Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/335/24
HARARE, 7 JULY, 2023
CASE NO LC/H/950/22
AND 14 AUGUST,
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 7 JULY, 2023

JUDGMENT NO  LC/H/335/24

CASE NO LC/H/950/22

AND 14 AUGUST,

2024

PEARSON GWAMANDA	APPLICANT VS

TOBACCO RESEARCH BOARD	RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant	- Mr. P.S. Sithole (Legal Practitioner)

For Respondent	- Mr. G. Mhlanga with Mr. S. R. Pasvani (Legal Practitioner)

CHIVIZHE, J:

On the 24th of July, 2024 this court handed down an order dismissing the application for review filed in this matter. It was indicated that the reasons would follow. The following constitute the reasons for the judgement rendered. The delay in hand down of the determination is sincerely regretted. The matter was placed before me as an application for review filed in terms of Section 92EE (1)(b) and (c) of the Labour Act [Chap 28:01] The application for review was noted as against the disciplinary proceedings conducted before the Respondent’s Disciplinary Committee which proceedings culminated in a dismissal penalty imposed on the Applicant on the 30th of August 2022. The application for review was opposed.

BACKGROUND FACTS

The factual background to the matter was as follows. The Applicant was employed by the Respondent in the position of a state certified nurse based at the material time at Kutsaga Clinic. He had been employed for twenty-four years. The Respondent is a statutory body established in terms of the Tobacco Research Act [Cap 18:21]. On the 11th of July, 2022 Applicant was suspended without salary and benefits. On the 16th  of August, 2022 the

conditions of suspension were altered to be with full salary and benefits. On the 25th August, 2022 the Respondent notified the Applicant of disciplinary proceedings to be convened on the 29th and 30th of August, 2022. The Applicant was to answer to two charges, namely violation of paragraph 24 and 33 in Group D of the Tobacco Research Board Code of Conduct (hereinafter referred to as ‘The TRB Code’). The allegations behind the first charge were that the Applicant had ignored the request by the disciplinary officer to submit a written statement during the course of investigations. With regards the second charge the allegations were that he had inappropriately attended to two minors in the course of his duties at the clinic. He was alleged to have fondled Charity Petulo and touched Confidence Banda’s private parts on two different occasions.

The disciplinary proceedings were conducted on the 29th and 30th of August, 2024. On the 30th of August, 2024 the determination was handed down. The Disciplinary Committee, after considering the submissions and evidence presented before them, found the Applicant not guilty on the first charge but guilty on the second charge. A penalty of dismissal was consequently imposed on him. The Applicant was dissatisfied and noted an appeal to the Appeals Committee on the 06th of September 2022. On the 8th of August Applicant was served, through his lawyers, with a letter confirming the verdict and the penalty. The Respondent, however, failed to convene the Appeals Committee to preside over his Appeal. The Applicant even sought the intervention of the Respondent’s General Manager who is the final appeal authority under section C (12)(ii) of the Tobacco Research Board Employment Code of Conduct through a letter dated 23 September, 2022. The Appeals Committee still did not sit. As a final resort Applicant lodged the application for review that was set before me.

GROUNDS OF REVIEW

The Applicant was seeking to impeach the disciplinary proceedings on the basis of the following grounds;

The  Disciplinary  committee  was  biased  against  Applicant  such  that  it  ignored  glaring inconsistencies and contradictory evidence given by all witnesses.

The Disciplinary authority committed gross irregularity in the proceedings in that;

Applicant has been denied his right of appeal against the decision in time as provided in Section C of the Tobacco Research Board Employment Code of Conduct.

Applicant was given only one (1) working day to prepare his defence.

The verdict and penalty were decided by an improperly constituted panel of three (3) members instead of the required four (4) as provided in Article 7 of the Employment Code of Conduct.

The Disciplinary Committee erred in deciding that the standard of proof was on a balance of probabilities on a case of alleged sexual crimes.

Applicant was suspended from employment for more than 14 days without pay in violation of several parts of the Employment Code of Conduct.

POINTS IN LIMINE

The Respondent had through its Opposing Affidavit taken the point in limine that the application for review had been filed out of time. On the date of hearing, the Applicant, through Counsel, initially took a position to oppose the point in limine. Having later conceded to the point an oral application for condonation for filing the application out of time by five days was made. The application was not opposed by the Respondent. Condonation was accordingly extended to the Applicant for the late filing of the application and the application for review was deemed properly before the court. The court proceeded to hear arguments on the grounds as filed. The following were the arguments as presented on each ground and the court’s finding in respect of same.

EVALUATION

WHETHER OR NOT THE DISCIPLINARY COMMITTEE WAS BIASED

The first ground for challenging the disciplinary proceedings was of bias on the part of the Disciplinary Committee. The Applicant contended under this head that the Disciplinary Committee was biased against him in that they ignored glaring inconsistencies and contradictory evidence by the witnesses that appeared before them. The Applicant pointed specifically to the evidence of Charity Petulo, who was the first alleged victim and that of her mother. The Applicant also pointed to deficiency in the evidence by both the alleged victims in that they could not recall exactly when the alleged violations took place and why it took them long to report the alleged violations.

The applicant also highlighted specific pages in the record of proceedings where there was overwhelming evidence in support of his case which the disciplinary committee had purportedly ignored in its consideration of the evidence. Lastly the Applicant contended that the committee’ bias was also exhibited when it opted to impose a dismissal penalty instead of considering the alternative penalties. The Applicant

placed reliance on Minerals Marketing Corporation of Zimbabwe vs Mazvimavi 1995 (2) ZLR 353 as having laid down a clear test which all disciplinary committee should apply in order to ensure they act fairly and transparently.

The Respondent’ counter position was that the ground of bias as filed by the Applicant was not clear. It was apparent from a perusal of paragraph 22 of Applicant’s Founding Affidavit that Applicant had failed to show which specific witness’ evidence was inconsistent. The court had also not been advised of the specific ‘glaring inconsistencies’ Applicant was referring to. The Respondent submitted that it still remained a trite position at law that an application rises and falls on the basis of averments contained in the Founding Affidavit.  Reference was made to Magwiza vs Ziumbe NO and another 2000 (2) ZLR 489

(S) at 492D-F; Austerlands (pvt) ltd vs Trade and Investment Bank Ltd and Others 2006 (1) ZLR 372 (S) at 377G. The Respondent’s prayer was for paragraph 22 to the Founding Affidavit to be struck out as well as the submissions made by Applicant on bias.

The Respondent further submitted that, even if the court were to find that the point of bias was properly before the court, the Applicant had still failed to prove the bias he was alleging. The ground was also badly crafted in that it was not clear what case the Respondent was supposed to meet.

The court agreed entirely with Respondent on both scores. It was indeed correct that paragraph 22 of the Applicant’s Founding affidavit was vague and unclear. The ground merely made an allegation of bias without substantiating on the averments made. It clearly stood to be struck out. Assuming the court was wrong, however, in taking this approach it was also clear that the ground still stood to fail. The test for bias in this jurisdiction has been outlined in Unifreight Limited vs Madambo SC 5/18 to which the court was referred by the Respondent. In that case the Supreme court placed reliance on the authority of City Urban Transport (Pvt) Ltd vs Local Board Road Transportation Johannesburg 1932 WLD 100 where it was held that:

“The test for bias appears to be whether the person challenged has so associated with one of two opposing views that there is real likelihood of bias or that a reasonable person would believe that he would be biased”

The Applicant in this case had failed to show how the issue of bias manifested. There had also been no reference to the record of proceedings to show clearly when and how the bias manifested. It certainly could not be left to the Respondent and to the court to conjecture as to when and how the Disciplinary Committee was biased. The mere fact that the Disciplinary Committee returned a dismissal penalty could not on its own be sufficient proof of bias. The Applicant needed to go further which he did not. This ground simply had to fail.

The second ground for challenging the proceedings was based on gross irrationality. The Applicant alleged five ways in which the Disciplinary Committee acted with gross irrationality. I turn to address the specific items raised under each sub paragraph, the parties’ submissions and the court’s finding in respect of each.

WHETHER OR NOT RESPONDENT BREACHED ARTICLES 9.1(VII) AND 9.2(VII) OF THE CODE

The Applicant submitted that he was suspended from employment for more than 14 days without pay in violation of several parts of the TRB Code of Conduct. He contended that he was suspended without pay and benefits by the Respondent on the 11th of July 2022 and was only reinstated a month later on 18 August 2022.

In response, the Respondent’s position was that whilst it was admitted that the suspension without pay exceeded 14 days, any pecuniary prejudice that the Applicant had suffered was compensated when the suspension was lifted and Applicant was given his backpay and benefits as illustrated by Annexure “B” to its papers on page 12. The Respondent’s further position was that the delay, in any event, was caused by the Applicant who had not yet provided his response to the allegations on time. It was only during the disciplinary hearing that the Applicant explained that he was exercising his right to remain silent in order to avoid self- incrimination due to the charges being also criminal in nature. This explained why he had refused to supply his response to the allegations that were being raised against him. Respondent also placed reliance on the authority of Clever Chitavate vs Kukura Kurwera Bus Company LC/H/374/12 where this court held that;

“Be that as it may the next question that has to be answered is whether that anomaly vitiated the proceedings that were conducted by the Respondent. In the case of P.T.C vs. Zvenyika Chizema SC 108/04 Ziyambi JA quoting the case of Nyoni vs. Secretary for Public Service, Social; Welfare and another 1997 (2) ZLR 516 had this to say about delays conducting disciplinary hearings:

“…………..an employee validly suspended does not, because of delay alone, become remitted to reinstatement nor to reversal or review of a subsequent dismissal. Instead, they (the parties) each have available to them the remedy of mandamus to enforce due compliance with that which is timeous”

The Respondent submitted that the delay, if any, could not have the effect of vitiating the disciplinary proceedings before the Disciplinary Committee. This was clear as the Applicant had failed to show /establish any prejudice suffered as a result. The ground for review had to fail on that basis.

The court once again agreed entirely with the Respondent. It was clear that the Respondent was admitting to having placed applicant on suspension without pay for a period exceeding 14 days as provided in the TRB Code. It is however the position in our law as outlined in the Labour Court judgement referred to by the Respondent that an employee on suspension faced with delays in convening disciplinary proceedings cannot just sit. He has to take other options including utilizing the remedy of a mandamus. The same position had been taken in the Supreme court in the matter of Stella Nhari vs ZABG SC51/13. It was clear that the Applicant in this case had not taken steps to seek for a mandamus where there was clearly a delay by the Respondent. He had also failed to show what prejudice he did suffer as a result of the delay. He had also failed to respond to the submission by the Respondent that any pecuniary loss he suffered was compensated when suspension was uplifted and he was paid his backpay and benefits. The ground consequently had to fail.

WHETHER OR NOT RESPONDENT BREACHED SECTION 6(4) NATIONAL CODE OF CONDUCT

The Applicant’s submission under this head was that he was only given one (1) working day to prepare his defence. The notice of hearing informing him of a hearing on Monday 29 August 2022 was served on him on Thursday 25 August 2022 meaning that he was only afforded one working day notice being Friday 26 August. Applicant further submitted that although the TRB Code did not provide any applicable timeline, in terms of section 6(4)(a) of the Labour (National Employment Code) Regulations, 2006, he had a clear right to at least 3 working days’ notice of proceedings against him and the charge he was facing. The Applicant further contended that the Respondent was seeking to stretch the meaning of ‘working day’ to include weekends by basing on the industry Collective Bargaining Agreement, which is encapsulated in Statutory Instrument 41 of 2002. However, this agreement, according to the Applicant, was irrelevant to the dispute for it was not intended to be used as a tool for oppression of an employee party. This was in view of the provisions of section 75 (5) of the Labour Act [Cap 28:01] which section outlines that;

“A collective bargaining agreement shall not contain any provision which is inconsistent with this Act or any other enactment, and any collective bargaining agreement which contains any such provision shall to the extent of the inconsistency be construed with such modifications, qualifications, adaptations and excessive exceptions as may be necessary to bring it into conformity with this act or such other enactment.”

Applicant further submitted that in terms of Section A (2) of the TRB Employment Code of Conduct, the Labour Act [Chap 28;01] remained the fundamental basis of labour standards thus meaning that the application of timelines mandated by the Labour Act [Chapter 28:01] as read with the National Employment Code was mandatory. The Respondent therefore could not seek to exempt itself from compliance with same. The Applicant also contended that disciplinary proceedings involve legal process and in terms of section 33(6)(b) of the Interpretation Act [Cap 1:01] Saturday and Sunday are not working days for legal processes in this jurisdiction. In support of this position Applicant cited authorities in Mhuri v Ministry of Education, Sport and Culture LC/H/141/2009 and Air Zimbabwe v Mlambo 1997 (1) ZLR 220 (S) where a one-day notice was held to be insufficient by the Supreme Court.

The Respondent submitted that the Applicant was given 3 days’ notice. The Respondent in support of its position placed reliance on Statutory Instrument 41 of 2002 which provides that weekends are working days. Section 4 of Statutory Instrument 41 of 2022 provides that a “working day” means any day other than a day off or a public holiday. The Respondent urged the court to adopt the definition in Statutory Instrument 41 of 2002 in finding that the Applicant was duly given his 3 days’ notice. The court was urged to resist the submission by the Applicant that the gap that exists in the TRB Employment Code of Conduct could be filled by the Labour (National Employment Code) Regulations, 2006 when there were in fact regulations that were put in place to regulate the agriculture sector. It was Respondent’s further submission that Statutory Instrument 41 of 2002 is not designed to interfere with section 6(4) of the Labour (National Employment Code) Regulations, 2006 it merely clarifies how the section applies to the agriculture sector. It therefore seeks to brings life to the Labour (National Employment Code) Regulations, 2006.

The dispute between the parties centred around the definition of a ‘working day’. It was not in dispute that the relevant code under which Applicant was disciplined that is the TRB Employment Code did not provide a definition of ‘working day’. It was in seeking to cover that very gap that the parties found themselves in diametrically opposed positions. The applicant was contending that the court could fill the gap through the Labour (National

Employment Code) Regulations,2006 whereas the Respondent position was that Statutory Instrument 41 of 2002 was applicable in view of the fact that it relates specifically to the sector.

In resolving this point the court relied on the general position of the law that parties should in such instances rely on the industry code if it provides more favourable conditions for the employee, the reason being industry codes are specific to a particular sector and are designed to address unique issues and needs within the sector. However, if the National Code provides more favourable conditions, then that should be relied upon. The principle which underscores the need to apply the most favourable provisions to the employee rather than the employer was applied in the case of Zimbabwe Tobacco Association vs Zimbabwe Tobacco Workers Union and another SC 43/2004. It was clear to the court that in this instance the National Code of Conduct  provided more favourable conditions for the employee. The Respondent clearly should have relied on these provisions to give the Applicant three working days’ notice.

That however was not the basis for my decision. The Respondent in its papers had also raised the issue that in any event the Applicant had failed to establish that he was prejudiced by the failure to accord him three working days. The respondent placed reliance on the authority of Majurira v TREDCOR Zimbabwe (Pvt) Ltd SC 48/2013 where the Supreme court ruled as follows:

“The second ground relates to the failure to give the Applicant three days’ notice to prepare for the disciplinary hearing. In this regard, s 6(4)(a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I. 15 of 2006) entitles an employee to “at least three working days’ notice of the proceedings against him or her and the charge he or she is facing. While I am loath to pronounce any general rule on the point, it seems to me that strict compliance with s 6(4)(a) might justifiably be excused on the particular facts of this case. This is because the Applicant was fully aware of the charge he was facing, well before he received the notice convening the disciplinary  hearing,  and  therefore  had  ample  time  to  prepare  his  defence. Additionally, there is no indication in the papers before me that the Applicant was in any way prejudiced, and if so how, in the conduct of his defence by the failure to afford him three full days’ notice of the disciplinary hearing. I am therefore satisfied that the court a quo cannot be faulted for having found substantial compliance with the requirements of s 6(4)(a) in this specific instance.”

It was clear to the court that based on the facts of this case the Applicant had not been prejudiced in any way as he was aware of the charges he was facing. He had ample time to prepare his defence. This was further fortified by the decision he took on the date of hearing on 29th of August, 2022. The record clearly showed that the Applicant had raised the issue of insufficient notice as a point in limine before the commencement of the hearing on 29th August 2022. Without conceding to the irregularity as alleged the disciplinary committee proposed to have the matter postponed to 2nd September 2022 to allow the Applicant to prepare his defence. He, however, acting on the advice of his legal practitioners, declined the offer and elected for the proceedings to continue. He thus clearly waived his right to ever challenge the proceedings on the basis of insufficient notice.

It was clear to the court that the Applicant having taken that position he could not be allowed to blow hot and cold. He was as contended by the respondent estopped from claiming that his right to due notice of the hearing was infringed. The court was aptly referred to the authority of ARIS Enterprises (Finance) (Pvt) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A) at p 291D-F in regards the doctrine of estoppel. Closer to home the Supreme court had also defined waiver in the matter of Halwick Investments v Nyamwanza G.S. (09-SC- 048). It was also not lost to the court, that the Applicant was being represented by a legal practitioner throughout the disciplinary proceedings. Being represented he was very much aware of the implications of declining the offer extended by the disciplinary committee for a postponement of the matter. It meant that he could no longer raise the issue again before any forum. The submission that he was denied the right to 3 days’ notice had to also fail.

WHETHER OR NOT RESPONDENT BREACHED ARTICLE 7 OF THE TRB CODE

The Applicant also submitted that the verdict and penalty were decided by an improperly constituted panel of three (3) members instead of the required four (4) as provided in Article 7 of the Employment Code of Conduct. Applicant contended that this was a grave violation which impacted the fairness of the process. In support of his position Applicant relied on the authority of Minerals Marketing Corporation of Zimbabwe v Mazvimavi 1995 (2) ZLR 353 (S), where the Supreme Court invalidated proceedings of an improperly constituted Disciplinary Committee.

The Respondent’s counter position was that, whilst it was admitted that the verdict was reached by a disciplinary committee consisting of three, and not four, members, no prejudice

however was suffered by the Applicant. This was so because it was a management representative who was absent on the second and final day of hearing. The Respondent’s submission was that the basis of having representatives from both the employer and employee was to ensure that the interests of the parties are evenly represented. The Raespondent referred to the celebrated case in Musarira v Anglo American Corporation 05-SC-53 where the supreme court stated that once a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party․ The circumstances in this case however showed that it was the employer and thus the offended party who was not evenly distributed. The Respondent position was that it was the party that ought to have been complaining as its interests were not evenly represented during the final phase of the hearing. It had however chosen not to complain. The Applicant who was evenly represented in the disciplinary committee clearly suffered no prejudice therefore by the absence of one management representative. Instead it was to his advantage as there were more fellow staff association representatives than the employer representatives. Reference was also made to Majurira v Tredcor Zimbabwe (Private) Limited SC 48/2013; and Ramani v National Social Security Authority S-38-03. The Respondent also submitted that the matter in MMCZ v Mazvimavi 1995 (2) ZLR 353 (S) had been improperly relied upon by the Applicant as the facts of that case were totally different from this case. In casu, it was the Applicant who was at an advantage as he ended up with more representatives in the Disciplinary Committee than the Respondent. The Applicant was not prejudiced in any way and the Respondent prayer was that this court finds as such.

The court did find in favour of Respondent again on this point. It was clear that once again the Applicant had failed to prove/establish any prejudice suffered as a result of the irregularity. On that basis the court was constrained to find that there was gross irregularity as a result of the uneven distribution of members of the Disciplinary Committee. The ground was also dismissed.

WHETHER OR NOT THE DISCIPLINARY COMMITTEE IGNORED INCONSISTENCIES IN WITNESS TESTIMONY

The Applicant alleged that there were serious inconsistencies in the testimony of witnesses that the disciplinary committee had ignored. The Respondent challenged the ground on two levels. Firstly, that the ground had to be struck out as Applicant was making bare

assertions which were not supported. The Applicant had not bothered to tell the court and indeed the Respondent as to which evidence was inconsistent. The Respondent submitted that it was embarrassed to plead to such a ground. On the second point the Respondent contended that the ground in any event was not a ground for review but for an appeal. Both points as taken were fully merited. Firstly, it was clear that the ground stood to be struck out as Applicant had made bare assertions which were not supported by evidence. He had flimsly referred to inconsistencies between the evidence of Charity Petrulo and her mother but had not bothered to elaborated for the court to appreciate his position. The court’s view was that it was not enough for the Applicant to refer to pages of the record of proceedings without elaborating on the nature of inconsistency in the evidence given on those pages. More importantly however it was the court’s view that the second point raised by the respondent was also a valid point. It was clear that the Applicant, through this ground, was inviting the court to conduct an assessment of the witnesses’ evidence to determine whether there were inconsistencies in their evidence. He was also inviting the court to evaluate whether the findings made by the Disciplinary Committee were correct based on the evidence as presented. That power is clearly the preserve of this court only when sitting to hear an appeal. The test for a review was outlined in Woolworths (pty) ltd vs CCMA and Others [2010[5 BLLR 577 (LC) at paragraph [21] where the court stated as follows;

“In the Bears Furnishers case (supra) the court held that the judicial review powers given to the Labour Court is not for the purpose of necessarily weighing evidence which was presented during arbitration hearing, upon which the commissioner acted upon in arriving at his or her conclusion. “

It was clear in casu, that the Applicant had in his founding affidavit indicated specific pages of the minutes of proceedings which purportedly carried the witnesses’ contradictory evidence that was in his favour and which evidence the disciplinary committee had disregarded. The way the applicant had couched this ground was a classic example of a ground of appeal in which one is alleging a misdirection on the facts based on a wrong conclusion reached through a failure to consider certain evidence. It could  also be a ground of appeal based on a misdirection of facts in that the court /tribunal arrived at a conclusion contrary to the evidence as presented before the court/tribunal. The last possible basis was the one the court was referred to by the Respondent which was outlined in the case of Reserve Bank of Zimbabwe vs Carinne Granger and Martha Mataruka SC34/01 by Muchechetere JA where he stated as follows;

“An appeal to this court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the same facts would have arrived at such a decision.”

The ground stood to be struck out as it was clearly a ground of appeal.

WHETHER OR NOT THE RESPONDENT APPLIED THE WRONG STANDARD OF PROOF

The Applicant submitted that the Disciplinary Committee did not attach any weight to the fact that the allegations behind the charge were sufficient for criminal prosecution but no criminal prosecution was initiated either by the Respondent or the complainants. He further submitted that the biased conduct of the Disciplinary Authority also worked a serious injustice to him given that the facts behind the charge constituted a crime of Indecent Assault in terms of section 67 (1) of the Criminal Law [Codification and Reform] Act, [Cap 9:23]. The facts showed that neither the Respondent nor the Complainants reported the case for criminal prosecution. He had a very long clean 24 years of service with the Respondent, he however stood the danger of losing so much for a crime he had not committed. This was said to be contrary to the fundamental purpose of the Labour Act [Cap 28:01] which is to advance social justice and democracy at the workplace. The Applicant placed reliance on the authority in Astra Industries Limited v Peter Chamburuka, SC 258/11, 27/12 where the employer had charged the Respondent with theft but had not bothered to initiate criminal prosecution. It was held that;

“The essential elements of theft remain the same whether in a disciplinary hearing or in a criminal trial. The position now appears settled in this jurisdiction that where a person is charged in a disciplinary hearing with an offence of a criminal nature, such an allegation should be proved beyond a reasonable doubt and that it would be unfair to condemn a man and punish him for an offence of a criminal nature on a balance of probabilities rather than evidence which established the commission of the offence beyond a reasonable doubt.”

The Applicant submission was that the allegations in this case ought to also have been proved beyond a reasonable doubt. The application for review was therefore merited. The disciplinary

proceedings had to be set aside and he was reinstated to his original position with full pay and benefits.

The Respondent’s counter position was that the disciplinary committee in this case applied the correct standard of proof, that, of, on a balance of probabilities. It was denied that the standard of proof should have been beyond a reasonable doubt. The proceedings before the Disciplinary Committee were after all not criminal proceedings but civil proceedings in which the standard of proof is on a balance of probabilities. Reliance was placed on the cases of Nyarumbu L v Sandvik Mining and Construction Zimbabwe (Pvt) Ltd (13-SC-031) and Investments (Pvt ) Ltd v Cotton Company of Zimbabwe Limited HH-440-2012 where the court held that;

“The standard of proof in a case of this nature is commonly referred to as proof on a balance of probabilities. LORD DENNING formulated the standard of proof in theca se of Miller v Minister of Pensions [1947] 2 ALL ER 372 @ 374 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.”

The Respondent also contended that the disciplinary hearing itself was not a criminal hearing but a civil hearing. The Applicant was not charged with a criminal offence and the charges that were laid against him were not criminal charges unlike in the case of Astra Industries Limited v Peter Chamburuka SC 27/12 which the Applicant was seeking to rely on. The specific charges that were levelled against the Applicant were not found in criminal law. The degree of proof could not, therefore, have been beyond a reasonable doubt. Respondent’s Counsel further submitted that even where a charge is akin to a criminal offence the standard of proof remains the same. Reliance was placed on the authority in Zesa v Dera 1998 (1) ZLR 506 (S). In his judgement, Justice McNally noted that a criminal conviction is a serious conviction that could result in a death sentence or long term imprisonment and proof beyond a reasonable doubt is required. On  the  contrary, a civil case is merely a dispute between  individuals,  whose consequences are not detrimental to society as a whole and whose resolution can be done by balancing competing interests. This position was also established in Marine Centre (Private) Limited v O’brian Chakwizira SC 27/05; Zimbabwe Financial Holdings v Mafunga (05/03) SC 45/2005; and Malimanjani v CABS SC 47/2007. The Respondent also submitted that in any event this was once again a ground of appeal as Applicant was seeking to attack the correctness of the decision that was reached by the disciplinary committee on the law. There

was no procedural irregularity that was being alleged by Applicant. The Respondent further contended that the Applicant could not seek to attack the dismissal penalty imposed on him in a review application and on that basis, this ground also had to fail.

In dismissing this ground it was clear to the court that on the basis of the record of proceedings and the authorities as referred to by the Respondent i.e. Zesa vs Dera, Nyarumbu vs Sandvik the disciplinary committee had correctly applied the standard of proof on a balance of proceedings. The ground in any event stood to be struck off as it was raising an issue for an appeal rather than for review.

WHETHER OR NOT APPLICANT WAS DENIED THE RIGHT TO APPEAL UNDER ARTICLE 12 OF THE CODE

The Applicant’s submission was that he has been denied his right of appeal provided for in the TRB Employment Code of Conduct. He further submitted that, on paragraph 6 of Respondent’s Opposing affidavit, Respondent admitted to having received his appeal but did not give any firm reason why the appeal was not heard within the time limits provided for in Section C (12)(C) of the relevant code. Applicant submitted that despite his attempts to comply with stage 3 procedure in section C (12)(C), the Respondent remained defiant in not giving him a forum to appeal. Applicant also contended that although he was entitled to a speedy resolution of the dispute, the attitude adopted by the Respondent was that it remained in its power to decide when his appeal could be lodged. This was clearly contrary to Section C, Article 12 (iii) of the Employment Code which stipulated that all Disciplinary and Grievance Committee and Appeals Committee proceedings must be completed within 30 days from the date of commencement. Applicant further submitted that the Respondent had failed to comply with the code by failing to give a written decision within the stipulated 4 days after the finalization of the disciplinary hearing. The Appeals Committee then utilised this to reject his appeal on the basis that it had been prematurely lodged. This was not only a violation of the code but also of section 65 of the Constitution of Zimbabwe as read with the provisions of the Labour Act [Cap 28:01].

The Respondent, in counter, submitted that the Applicant was not denied his right to appeal to the appeals committee. The Appellant was yet to note his appeal with the appeals committee. It was Respondent’s position an appeal can only be properly filed after the written decision of the Disciplinary Committee is made available. The facts in this case however showed the Applicant filed his appeal initially on the 6th  of September, 2022 before the

determination of the disciplinary committee had been made available. See paragraph 18.1 of the record of proceedings, page 52 of the application, and page 67 of the application. The Applicant was then furnished with the written confirmation of the verdict and sentence through a letter dated 8th September 2022. See page 61 of the application. It was also clear that the Applicant through a letter addressed to the Respondent dated 9th September,2022 recanted the earlier appeal which he had filed. It was Respondent’s submission therefore that it was still waiting for Applicant to file his appeal. The appeals committee could not, proceed to review a decision without an appeal placed before it.

In the court’s finding based on the evidence in the form of the letter dated 9th September, 2022 which has been attached as annexure A to Respondent’s papers the Applicant did recant on the earlier appeal noted. This is clear from the wording of the letter by his Legal Practitioners which reads as follows;

“Our client intends to exercise his right of appeal against the decision of dismissal from employment, hence we request the record of proceedings as provided at article 10(ii) of your Tobacco Research Board Employment Code of conduct”

From the wording the applicant was clearly suggesting that he was going to be noting a fresh appeal based on the record of proceedings. The facts show the record was later provided on the 14th of September,2022. The Applicant however did not file a fresh appeal as per his letter of the 9th referred to above. He also did not advise the Respondent to consider his appeal on the basis of the initial papers filed on the 6th of September, 2022. The Respondent also responded to Applicant’s letter of the 23rd September, 2022 and in the letter reminded him of the contents of his letter of the 9th September, 2022.The Applicant instead of responding by taking any of the two options as referred to by the Respondent, proceeded to file his review application with this court. Clearly the applicant had no basis for alleging that his right to appeal had been denied. It was his fault he found himself in the predicament he was in. He firstly filed an appeal in the absence of the determination by the Disciplinary Committee, then when he did receive the determination, he did not take the option to withdraw the initial appeal and file a fresh appeal. This last ground also had to fail.

It was on this basis the application for review was dismissed with costs.