Rainbow Tourism Group v Rosa Muchazivepi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/224/16
HELD AT HARARE 2 MARCH 2016
CASE NO
JUDGMENT NO LC/H/224/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/224/16

HELD AT HARARE 2 MARCH 2016				CASE NO LC/H/APP/1487/15

& 22 APRIL 2016						X REF. LC/H/689/14

In the matter between:

RAINBOW TOURISM GROUP				Applicant

And

ROSA MUCHAZIVEPI					Respondent

Before The Honourable L M Murasi, Judge

For Applicant			Ms W L Chirongoma (Legal Practitioner)

For Respondent		Ms L Makuzva (Trade Unionist)

MURASI, J:

This court allowed respondent’s appeal against the decision of applicant’s Appeals Officer.  The applicant is dissatisfied with that decision and seeks to approach the Supreme Court.  This is therefore an application for leave to appeal in terms of section 92 F of the Labour Act [Chapter 28:01].

Applicant intended grounds of appeal are as follows:

The honourable court with the utmost respect erred at law in making a finding that there had been improper splitting of charges subjecting the respondent to double jeopardy.

The honourable court erred at law by applying the principle of double jeopardy to the facts of the dispute between the parties.

The honourable court erred at law in making a finding that respondent had acquired authority to remove the gum poles which finding was not supported by evidence.

The honourable court grossly misdirected itself on the facts such that another court confronted with the same set of facts would not arrive at the same determination by inferring that Tendai Karimazondo’s non-committal attitude in failing to inspect the materials was authorisation.

The court misdirected itself on the facts in a manner that is highly illogical such that a different court confronted with the same set of facts would come to a different decision in making a finding that applicant was not reasonable in dismissing respondent because the material in question was of little value or “useless” the court failed to consider that the property in question was applicant’s  and no one has a right to deprive another of their property irrespective of its value.

Ms Chirongoma for the applicant stated that the court had made an error in finding that there was an improper splitting of charges.  She stated that the principle applied where there was potential prejudice to the litigant.  She submitted that this occurred where a multiplicity of convictions would occur.  She further submitted that in casu it was not possible to have one “all-embracing charge” as the first charge could stand independently and the facts that would be used in evidence are not the ones that would be used to support the second charge.  Ms Chirongoma argued that respondent was supposed to acquire prior approval authorising her to remove the gum poles and respondent failed to comply with that procedure.  It was not necessary at this juncture to prove that she had the intention of permanently depriving the applicant of its property and it thus was possible for one to commit one offence without committing the other.  Ms Chirongona added that even though the respondent was convicted on both charges both counts were taken as one.  As far as the issue of penalty was concerned, it was stated that the court erred in having regard to the value of the property involved as it was trite that it is the principle of theft from employer which was to be taken into account and not the value involved.  Ms Chirongoma further submitted that another court was likely to arrive at a different conclusion on the same facts.

Ms Makuzva for the respondent stated that the application for leave to appeal was only made with the intention of denying the respondent her just dues as there were no prospects of success on appeal.  It was submitted that the applicant had failed to prove the charges against the respondent as the facts clearly showed there was no intention to steal and to flout the rules.  It was further submitted that on the charge of failure to follow procedures it was shown that respondent had approached the responsible person and the security personnel.  In that vein it had not been shown that she had flouted the rules as alleged.  As to the preference of two charges, Ms Makuzva argued that applicant had discovered that the evidence was weak and then decided to charge respondent with two offences so that she would not escape conviction.  She said there was a splitting of charges as both were based on the same facts and this could obviously lead to the misconduct being viewed as grave.

Broadly speaking the principles which are to be applied by a court in deciding whether to grant leave to appeal are whether there are reasonable prospects of success and that the matter is of substantial importance to one or both of the parties concerned.

The court will proceed to determine the applicant’s intended grounds of appeal.  The court notes that applicant’s first and second grounds of appeal relate to the same issue that is the splitting of charges and the possibility of double jeopardy.  It is my view that the applicant has laid down the tests correctly in the heads of argument.  It is the ensuing interpretation which is evidently erroneous.  Ms Chirongoma puts the first test thus:

“Whether the acts alleged in the charges were committed with a single intent or in the course of a single criminal transaction” (own emphasis)

The facts which are common cause show that respondent was “arrested” when she was in the act of removing gum poles without authorisation.  She was charged with theft as well as not seeking authorisation.  Do the actions of the respondent not amount to a “single criminal transaction”?  Ms Chirongoma adds that the charges preferred against respondent could not be put in a single “all embracing” charge.  I do not believe that this should amount to a legal and justifiable reason.  This court made the observation in the judgment that applicant could have made one of the charges the main charge with the other as the alternative charge.  Ms Chirongoma goes on to cite the case of S v Moyo HB 9/11 which was presided over by JUSTICE MATHONSI.  That court actually makes the same observations that were made in this court’s judgment.

The second test in applicant’s heads of argument is:

“Whether the evidence necessary to establish one of the acts involves proof of the other.”

Needless to state that in casu, this is answered  in the positive.  Applicant relied on the same evidence  to prove “both counts”.  The question that arises is whether a splitting of charges is not evident in the circumstances?  It is my view that to find otherwise would militate against reasonableness.  As observed earlier, applicant correctly puts the legal issues to be considered when the issue of splitting of charges is to be determined but obviously arrives at a wrong or erroneous interpretation.  It is has been that argued the evidence required to prove that she had the necessary authorisation would be different from the evidence to prove intent to deprive the owner permanently.  As pointed out in the court’s judgment there has to be unlawfulness in the transaction.  This would be equal to absence of authorisation which would make the transaction unlawful.  It is my view on the facts that the Supreme Court is unlikely to uphold applicant’s ground of appeal in this respect.

The third ground of appeal alleges that the court erred at law in making a finding that respondent had acquired authority to remove the gum poles which finding was not supported by evidence.  This is an appeal on a finding of fact.   Precedent has shown that applicant should show that there was a gross misdirection which would amount to a point of law.  The facts show that respondent approached Karimazondo for the removal of the gum poles.  This evidence is not disputed by the applicant.  The evidence shows that Karimazondo informed the respondent to go and see what material she could remove as this was “scrap”.  This is not disputed by applicant.  It is also shown that respondent approached security in this regard.  This again is not contested by applicant.  The court discussed the issue of unlawfulness having regard to the facts and came to the conclusion that the element of unlawfulness was therefore non-existent.  Has the applicant demonstrated that the finding of the court in the circumstances  amounted to a gross misdirection?  I think not.  The Supreme Court is unlikely to find differently in the circumstances.  In this regard I agree with the sentiments of MALABA DCJ  in Ngazimbi v Murowa Diamonds (Pvt) Ltd S 27/13 where he had this to say:

“It is important to relate the requirement for an application for leave to appeal to the purposes thereof.   These are for the decision to be made on the questions whether the grounds of appeal relate to questions of law and the existence of prospects of success on appeal.”

It my view for the above-stated reasons that this ground of appeal does not and will not enjoy the prospects of success.

The fourth ground of appeal relates to the third ground of appeal in that it refers to the court having found that there was authorisation from one Karimazondo.  The court will therefore not detain itself on this ground of appeal.

The last ground of appeal alleges that the court, in deciding whether it was correct to dismiss the respondent, wrongly anchored its decision on the value of the property.  With due respect, the applicant missed the point.  The following is what the court said at page 5 of the judgment:

“The appellant had requested for the material in question.  She had been accompanied by a security officer to the dumpsite as already stated, no theft in the proper sense had occurred.  Was it therefore reasonable to dismiss in the circumstances?  I think not.”

Therefore the court’s decision to question the reasonableness of the dismissal was not centred on the value.  It was anchored on the circumstances of the case.  The court referred in a previous paragraph of the fact that Karimazondo had referred to the property as “useless” but as the record and judgment shows, the court’s view was influenced by the absence of the commission of the offences.  It is quite evidence that applicant “clutched” at the previous paragraph without going to the reasons the court advanced for stating that the dismissal of the respondent was not reasonable in the circumstances.  It is trite that an appeal is considered on the record and such record shows the reasons the court gave and the ground of appeal was obviously formulated without clearly reading and understanding the reasons given by the court.

In conclusion the court is of the view that the applicant has not been able to demonstrate that there are prospects of success or appeal.  Leave to appeal is not granted simply because a party has sought such leave.  A party seeking leave must show that he/she has reasonable prospects of success on appeal.  (See Fiona Chikurunhe & 234 Others v Zimbabwe Financial Holdings S 10/08 – per GARWE JA).

In the result the court finds the application for leave to appeal to be devoid of merit and is accordingly dismissed with no order as to costs.

C Kuhuni  Attorneys, applicant’s legal practitioners