Prince Tafadzwa Murondatsimba v Zimbabwe Motor Investments Group of Companies t/a Lover Leaf Motors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/21/25
HARARE, 09 SEPTEMBER 2024 & 17 JANUARY 2025
CASE NO. LC/H/614/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 SEPTEMBER 2024 & 17

JANUARY 2025

In the matter between: -

PRINCE TAFADZWA MURONDATSIMBA

Versus

ZIMBABWE MOTOR INVESTMENTS GROUP OF COMPANIES T/A LOVER LEAF MOTORS

JUDGMENT NO. LC/H/21/25 CASE NO. LC/H/614/24

APPLICANT

RESPONDENT

Before the Honourable Kudya J

For the Applicant	- I. Nderere (Legal Practitioner)

For the Respondent	- J. Taruvinga Wuchiri (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the appeals hearing officer who upheld the guilty verdict and dismissal penalty meted out on appellant following allegations of willful disobedience to a lawful order in contravention of the respondent employment code of conduct.

The 2 grounds of appeal relied on by the appellant are the following:

The appeals hearing officer erred and misdirected himself at law by arriving at a verdict of guilty, despite the absence of fundamental elements necessary to establish the offence of wilful disobedience of a lawful order.

The appeals hearing officer erred at law by arriving at a verdict of guilt in circumstances where the evidence reflects that the appellant had complied with the order from the manager.

In the result the appellant prayed that the appeal succeeds, that the guilty verdict and dismissal penalty be set aside and be substituted with an order reinstating him to his job with full pay and benefits from the date of dismissal, or that he be paid damages in place of reinstatement if such is no longer feasible.

In response to the appeal, the respondent stated in limine that the appeal was bad at law as it lacked particularity on the factual findings complained about. On the merits plane, the respondent maintained that all the essential elements of the offence were proven and that evidence showed that appellant did not comply with the lawful order. In the result the respondent prayed that the appeal be dismissed with costs for lack of merit.

The factual background of the matter is that appellant in his capacity as a branch manager received an instruction from a meeting of 09 February 2024 on credit control not to accept or release motor vehicles from clients who were in breach of the credit control policy especially Ok Zimbabwe client. Contrary to the policy and contrary to the meeting instruction Ok Zimbabwe motor vehicles were released and accepted despite the fact that such a client was in breach of the policy. Appellant was consequently charged with lawful disobedience to the instruction of not accepting and releasing motor vehicles from clients who were in breach of the credit control policy.

He was found guilty and penalized with dismissal. He unsuccessfully appealed to the appeals officer. He has now appealed to the Labour Court on the appeal which is the subject of this judgment. At the onset of the appeal and in its heads of argument the appellant raised the point in limine that there was no board resolution authorizing the deponent to depose to the opposing affidavit in response to the appeal. In keeping with the spirit of the case of Dube vs PSMAS SC 79-19 the issue of the resolution was put to rest by the filing of the resolution which at the time of this judgment is now on file.

As regards the point in limine by respondent that the appeal grounds lack particularity it need be noted that although the grounds are indeed inelegantly crafted, they however satisfy the test set out in Kunonga vs CPCA HCH 217/11

In any event the elements for wilful disobedience are settled See Matereke vs Bowring 1978(2) ZLR 206 (S) It is clear that even without that stipulation in the grounds the legal

position relating to the charge is settled so the court cannot strike the matter off on the basis suggested above. The point in limine that appeal grounds are bad at law is without merit and should fail.

On the merits plane the question to be answered is: Did the facts of the case at hand pass the test in Matereke (Supra)? In the case at hand, it is clear that notwithstanding the instruction and the standing credit policy in place for motor vehicles for the (bad debtors) such clients’ motor vehicles received attention.

It is granted that appellant instructed his subordinates to adhere to the policy and the instruction, but there is evidence that in his capacity as Managing Director he made no effort to ensure compliance. That shortfall in his conduct made the employer conclude that he had willfully disobeyed the instruction. There was therefore nothing remiss in the appeals officer’s acceptance of the conclusion arrived at by the disciplinary committee that such conduct fell within the ambit of failure to obey a lawful instruction.

The test for appeals is settled. See Hama vs NRZ 1996(1) ZLR664. There is nothing in the reasoning of the disciplinary committee or the appeals committee that warrants interference by this court. First ground of appeal being without merit should fail.

As regards the 2nd ground of appeal this ground is almost a repetition of ground one if regard is had to the conclusion arrived at in ground one above. It was insufficient for the appellant to issue an instruction and not follow it through. Such an omission on his part demonstrates clearly that he fell short of his position as manager. The appeals officer can therefore not be faulted for accepting that the appellant did not comply with the instruction complained of above. The 2nd ground also being without merit should fail.

In the ultimate both grounds are without merit and should fail

IT IS ORDERD THAT:

Appeal being without merit in its entirety it be and is hereby dismissed with costs on the ordinary scale.

Scanlen and Holderness - Applicant’s Legal Practitioners Sa…Mkunhi Legal Practitioners - Respondent’s Legal Practitioners