Robbie Takapira v Horizon Ivato Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/497/16
HELD AT HARARE 23 JUNE 2016
CASE NO
JUDGMENT NO LC/H/497/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/497/16

HELD AT HARARE 23 JUNE 2016					CASE NO LC/H/92/16

& 19 AUGUST 2016

In the matter between:

ROBBIE TAKAPIRA					Appellant

And

HORIZON IVATO ZIMBABWE	 (PVT) LTD		Respondent

Before The Honourable Murasi, J

For Appellant			B Mupwanyiwa (Legal Practitioner)

For Respondent		B Hwandi (Human Resources Manager)

MURASI J:

Appellant was employed by the respondent. He is alleged to have stolen goods from the employer.  He was brought before a Disciplinary Committee which found him guilty and recommended his dismissal.  The appellant appealed to the NEC for the Commercial Sectors Mashonaland Local Joint Committee which committee confirmed the respondent’s decision.  A further appeal to the Negotiating Committee did not yield the desired result.  Appellant has thus approached this court for relief.

Appellant’s grounds of appeal are as follows:

The committee respectfully erred in upholding the conviction of theft against the appellant when the record of (the) hearing shows that the alleged chief evidence of a video footage to prove the commission of the offence was not produced despite demand.

The committee respectfully erred in upholding the conviction of theft against the appellant when in terms of the deliberations by the disciplinary committee its suggested position was that the appellant had not done his job satisfactorily as opposed to theft.

The committee respectfully erred in upholding the conviction of theft against the appellant on the basis of the evidence of an incredible witness who pretended to be an accomplice to the appellant a fact which was disputed and was not corroborated by any evidence aliunde

The committee respectfully erred in upholding the penalty of dismissal based on a wrong conviction.

Assuming that the conviction was proper, the committee still respectfully erred in rubber-stamping and upholding a penalty of dismissal which was pronounced in the absence of mitigating factors by the appellant.

The committee respectfully erred in concluding without evidence that the appellant signed a mutual agreement for termination of services.

At the commencement of the proceedings, Mr Mupwanyiwa submitted that the

matter should proceed in terms of Rule 22 as the respondent had not filed a response within the prescribed period of time.  Mr Hwandi for the respondent stated that he had made a reply which he had filed with the NEC and then had proceeded on leave.  Asked as to why he had not filed a response on his return from leave, he was unable to proffer any explanation.  Respondent had in fact filed the response a day before the date of the hearing.  This indeed was not a reasonable and acceptable explanation.  The filed response was not accompanied by an application for condonation for late filing of the response.  This issue was further complicated by notes that were made on the notice to attend court proceedings by the Registrar.  The notice was sent out on 13 June 2016.  The Registrar made the following note:

“Please kindly respond within 5 days of receipt of the notice of set down.”

This notice of set down is signed by one B Nyamanhindi.  This is clearly a flagrant disregard of the court’s rules.  The Registrar is not empowered to make such statements which are not provided for in the court’s rules.

The court was of the view that the respondent failed to show good cause why the matter could not proceed in terms of rule 22.  The explanation fell far short of justifying the breach of the court rules which had been occasioned.  The court therefore declined to uplift the bar operating against the respondent.

On the merits, Mr Mupwanyiwa stated that the video evidence which was relied upon had not been availed during the hearing and thus the respondent could not have proceeded to convict the appellant.  It was further submitted that the Disciplinary Committee was of the view that no theft had occurred and therefore appellant could not have been found guilty in the circumstances.  As to the evidence adduced before the committee, it was argued that it was wrong to rely on the evidence of the alleged accomplice without leading independent evidence to confirm the theft.  As far as the penalty was concerned, it was submitted that it was a harsh penalty imposed on appellant having regard to the offences allegedly committed by the appellant.  It was further argued that the Negotiating Committee had erred in placing reliance on the document which showed that appellant had agreed to terminate his services with the respondent.  It was further submitted that appellant had not signed a document which purported to be a mutual termination of the employment contract.

It is trite that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection.  To arrive at such a conclusion it is pertinent to consider the deliberation of the Disciplinary Committee.  The evidence placed before the committee was to the effect that after watching events on the CCTV, security personnel initiated investigations.  The security personnel interviewed an employee who implicated the appellant.  The evidence from the employee was to the effect that he was given instructions by the appellant to remove the product and place it on the truck which was meant for deliveries.  It is the act of removing the product from the warehouse which aroused the suspicions of the security personnel.  This employee was called to give evidence.  He informed the committee that after having placed the product onto the delivery truck, he later followed it using appellant’s motor vehicle.  He retrieved the product which he later shared with the appellant.  This is the evidence that led to the conviction of the appellant.

Appellant’s counsel has argued that the committee erred in relying on this evidence in the absence of evidence aliunde. The facts and the evidence show that security personnel saw on CCTV the employee removing the product from the warehouse.  The CCTV had shown appellant standing with another man when the employee was removing the product.  This employee gave evidence that he later used appellant’s motor vehicle.  What is evident from the record of proceedings is that appellant does not deny that he gave his motor vehicle to the employee.  The witness was asked whether it was his first time to drive the appellant’s motor vehicle.  His reply was that he had first driven it before appellant had bought it.  It was never denied that appellant gave his motor vehicle to the witness.  Appellant’s counsel lamented the absence of the CCTV footage.  The question is, was the evidence of the witness not enough to convict the appellant?  The second issue is what is the law on the issue of single witness evidence?

The issue of single witness evidence was discussed by GUBBAY CJ  (as he then was) in S v Banana 2000 (1) ZLR 607 (S).  The learned judge had this to say at p 615 E – H:

“Where the evidence of the single witness is corroborated in any way which tends to indicate that the whole story was not concocted, the caution enjoined may be overcome and acceptance facilitated.  But corroboration is not essential.  Any other feature which increases the confidence of the court in the reliability of the single witness may also overcome the caution.”

It was not and has not been alleged that witness had any reason to give false evidence against the appellant.  In fact, appellant does not dispute most of the evidence adduced from this witness, particularly the use of his motor vehicle.  It is trite that the benchmark for evidence is credibility, reliability, relevance and admissibility as stated in the above cited case, it is not mandatory that the evidence of a single witness be corroborated.  In casu respondent was enjoined to prove the case on a balance of probability and not beyond reasonable doubt.  Precedent has shown that the probability must be of sufficient force in favour of the party who relies on it and that it must be of sufficient weight to throw the onus on the other side to rebut it.  It is my view that the evidence of the witness coupled with that of the security personnel, the use of appellant’s motor vehicle was of sufficient weight to cast the onus on the appellant who was unable to rebut it.  It cannot be said that the Disciplinary Committee erred on that score.

Appellant’s counsel argued that the penalty imposed on appellant was harsh.  It was a penalty of dismissal for theft.  Courts have time and again emphasised the fact that the issue of what penalty to impose on an employee found guilty of misconduct remains the discretion of the employer.  Appellate courts will only interfer with the decision when the discretion has been unreasonably exercised.  Appellant was employed in the marketing department responsible for receiving and dispatching goods on behalf of the respondent.  Appellant was found guilty of pilfering some of the goods.  Could a reasonable employer have reasonably dismissed the appellant?  In my view theft affects the relationship between employer and an employee.  An employer is not entitled to rely on an employee who steals as the trust which the employer places on the employee is basic and forms the cornerstone of the relationship between them.  A breach of this trust goes to the root of the contract.  It is my considered view that a reasonable employer would have dismissed the appellant in the circumstances.  The Disciplinary Committee and the subsequent appellate bodies cannot be faulted at arriving at the decision to dismiss the appellant.

The last issue which appellant’s counsel raised is purely an issue of fact.  This is whether the appellant signed the document showing that he entered into an agreement terminating his employment with the respondent.  In light of the concessions made by appellant’s counsel during oral submissions, it is clear that the appellant signed some document after his conviction and dismissal.

The court asked the following question:

“Court:		Does appellant acknowledge receiving the amounts in question?

Answer:	Indeed

Court:		The whole amount listed

Answer:	Yes”

The document referred to shows that appellant was signing for “terminal benefits” in the sum of $444.  The argument raised by appellant’s counsel is that the NEC Negotiation Committee should not have found that this was an agreement to terminate the employer/employee relationship.  This was a factual finding.  Appellant was enjoined to demonstrate that the finding was so unreasonable that a reasonable tribunal would not have arrived at the same conclusion on the same facts.  This the appellant did not do.  Can it be said that the NEC Negotiating Committee erred in this regard?  I think not.  The facts and the evidence militate against making such a finding.

In the result, the court is of the view that the appeal lacks merit and ought to be dismissed.

The court makes the following order:

The appeal is hereby dismissed.

The decision of the NEC Negotiating Committee confirming the conviction and dismissal of the appellant be and is hereby upheld.

There is no order as to costs.

Mufadza & Associates, appellant’s legal practitioners