Salone Mabvoro v Central African Building Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/532/14
HELD AT HARARE 8TH JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/532/14

HELD AT HARARE 8TH JULY 2014 			CASE NO LC/H/441/11

& 15TH AUGUST 2014

In the matter between:-

SALONE MABVORO						Appellant

And

CENTRAL AFRICAN BUILDING SOCIETY			Respondent

Before The Honourable P Muzofa, Judge

For Appellant		L Mauwa (Legal Practitioner)

For Respondent		Mr G Chingoma (Legal Practitioner)

MUZOFA, J:

This matter was placed before this court as an appeal against the decision of the Negotiating Committee.

The appellant was employed by the respondent as a senior teller.  Following suspicions that she disclosed confidential information to certain individuals.  She was charged.  She was charged with two acts of misconduct disclosing confidential information obtained in the course of one’s duties and violating safety rules or measures with serious consequences.  The designated officer found her liable after considering the evidence and dismissed the appellant.  Appellant appealed to the Mashonaland Local Joint Committee which upheld the decision of the Designated Officer.  Dissatisfied by the decision appellant approached the Negotiating Committee on appeal.  The Negotiating Committee upheld the dismissal of the respondent.  Appellant then noted an appeal to this court on the ground:  that there was no evidence against her to found liability.

Before addressing the ground of appeal I would like to set out the circumstances of the case.    The agreed facts are that appellant made an anonymous tip off to respondent’s Managing Director and supplied a list  of four account numbers alleging that pension deposits would be made into the said accounts and be withdrawn immediately after the credits.  According to the appellant when respondent delayed in dealing with the matter appellant approached respondent’s senior Regional Manager and revealed that she was the whistle blower and wanted to provide further details on the  to be botched scam.   She was referred to one Chinhengo.  The appellant after being interviewed offered to take Chinhengo  to the place where one of the suspects resided.  Chinhengo involved two members from the central investigations Department.  In Kuwadzana one Regis was interviewed.  Two issues emerged from the interview, he indicated he was related to the appellant and that appellant supplied them with account details.  According to Chinhengo appellant admitted having disclosed the details, which admission appellant denied.  Before the designated officer there was no evidence from Regis and the two members from the Central Investigations Department.

Where a court is called upon to decide an appeal on the basis of evidence.  The Court has to be alive to two issues.  Firstly, the standard of proof.  The court must guard itself from looking at evidence beyond a reasonable doubt.  In such a case, being a civil matter the standard of proof is on a balance of probabilities see generally ZESA v Dera 1998 (1) ZLR 500 (SC) and CAPS Holdings v Chikwavira SC 73/99.  Secondly the limitations of an appeal court in assessing evidence on record in the absence of the advantage of assessing the demeanour of parties and other incidental elements which make up the atmosphere of an actual trial court.  This court can interfere with a decision where it is has been shown that taking into consideration all the facts the decision was grossly unreasonable.

From the record clearly there was no direct evidence that appellant gave out confidential information.  There was circumstantial  evidence from  which the inference was drawn that she committed the offences as alleged.  In a criminal case the inference drawn should exclude every reasonable inference save the one sought to be drawn.  In a civil case I can do no better than cite the passage on circumstantial evidence in the case of Maritime and General Ins Co. Ltd v Sky Unit Eng (Pvt) Ltd  1989 )1) 867 (t) AT 887 B

“... Now it is trite law that, in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability even although its so doing does not exclude every reasonable doubt... in a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence 3 ed para 32, by balancing probabilities select a conclusion which seems to be the more natural, or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only  reasonable one.”

The appellant did not give evidence to explain how she knew of the

account numbers and the Government pension scheme fraud.  The only evidence came from the security officer Chinhengo.  Chinhengo indicated that appellant had indicated that she overheard the suspects talking of the CABS system that was easy to penetrate and defraud.  Going by this explanation it would be difficult to understand how appellant eventually got to know about the account numbers and the Government pension scam.  The record of the disciplinary proceedings shows that at one point the designated officer asked why appellant made a tip off on four accounts the response surprisingly came from the appellant’s representative recorded as follows:

“the representative said one of the clients had a piece of paper with a list of account numbers which he was enquiring about.  The Designated Officer further asked how she got to know government pensions would be deposited in the account, the representative said the client said so, after she refused to process card replacement application he had.”

To me this conversation shows that the fraudsters had opportunity to

deal with appellant during the course of her duties.  It is not clear why she refused to replace the cards, or was it she knew of the scam.  The above conversation does not show anything fraudulent was discussed, the question that remains is how did appellant know that the accounts were to be used in a pension scam.  This is just but one instance that the record does not give much information.  I must also say the appellant’s representative did not properly discharge his duties.  Appellant did not give an account of what transpired.  The designated officer invited appellant to give her account but the representative declined.  As a result an inference was made and I believe rightly so that she failed to explain how she got information  on the account numbers and the pension scam.  It would be highly unreasonable to draw an inference that the ‘clients’ who wanted card replacements told her this information.  She was a stranger to them how could they give her such information that had the potential to prejudice their scam?  I believe the appellant was involved with the ‘fraudsters’ beyond the business transaction where she refused to process replacement cards.

I must comment on Chinhengo’s evidence clearly it was hearsay evidence.  Hearsay evidence can be admissible in terms of rule 12 of this Court’s rules.  It is the weight that has to be attached to the evidence that has to be determined.  In my view the appellant although she did deny that she gave Regis and his accomplice the account numbers she did not give her side of events.  Put differently the appellant did not place before the designated officer facts upon which an inference can be drawn.  Appellant’s representative only raised the issue of hearsay.

From the circumstances of this case my view is that the appellant was involved with Regis and accomplices more than the Highfield party and the card processing she declined.  It seems appellant had information as one who was involved in the scam.  The only one mind boggling issue is why she then reported the case if she was involved in the scam?  Delving into that would lead to theories.  The appellant has not raised a point that the decision by the negotiating committee was grossly unreasonable.  Appellant also failed to show or demonstrate the unreasonableness of the decision.  I cannot fault the negotiating committee’s decision.

From the foregoing the inescapable result is that the appeal has no merit accordingly the following order is made

The appeal being without merit be and is hereby dismissed with costs.

Mugomeza & Mazhindu, appellant’s legal practitioners

Dube, Manika & Hwacha, respondent’s legal practitioners