Samson Chikomborero v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/446/2014
HARARE, 3 JULY 2014 &
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/446/2014

HARARE, 3 JULY 2014 &		 	            CASE NO LC/H/501/2013

18 JULY 2014

In the matter between:

SAMSON CHIKOMBORERO					APPELLANT

Versus

ZIMBABWE REVENUE AUTHORITY				RESPONDENT

Before Honourable L M Murasi

For the Appellant		F Chimwamurombe  (Legal Practitioner)

For the Respondent	S Bhebhe	(Legal Practitioner)

MURASI J:

The appellant was employed by the respondent and carried out his duties at Beit Bridge border post. He is alleged to have contravened Clause D24 of the Employment Code of Conduct. He was brought before the Grievance and Disciplinary Committee which found him guilty and recommended his dismissal. An appeal to the Appeals Committee did not yield the desired result as that committee upheld the decision of the Grievance and Disciplinary Committee. The appellant subsequently approached this court for relief.

At the commencement of the proceedings the court invited Mr Bhebhe, appearing for the respondent, to address it on why the Notice of Response was not filed timeously in compliance with the Labour Court Rules. Mr Bhebhe submitted that the respondent advised that it had not had sight of the Form LC2 as the person who had received the document had not retained a copy. Mr Bhebhe further submitted that the respondent was only jolted into action when Heads of Argument were served on it on 7 May 2014. It was argued on behalf of the respondent that though this was the case, Rule 22 permitted the respondent to approach the court and explain why the Notice of Response was not filed on time. The respondent further urged the court to condone such failure and grant an extension of time within which to file the response. It was further stated that there was no prejudice to the appellant if the court exercised its discretion and granted the application.

Mr Chimwamurombe for the appellant stated that the respondent was not eager to have the matter finalised. This is shown by the fact that a letter was written to the respondent on 12 May 2014 attaching a copy of the Form LC2. The respondent, it was submitted, should then have made a formal application to the court. This was not done. It was submitted that it had taken the respondent close to twelve (12) months without attending to the matter. The court was urged to strike off the filed Notice of Response and treat the matter as unopposed.

The court made the ruling that the Notice of Response should be expunged from the record and the matter proceed as unopposed. The record clearly shows that the respondent was served with the Notice of Response on 4 July 2013. This was duly signed for on behalf of the respondent. The respondent did not do anything about the matter until May 2014. The respondent purportedly filed the Notice of Response on 12 May 2014 without making any formal application. This clearly exhibits a contemptuous attitude as regards the Rules by the respondent. The court is of the view that this is one of the cases where the court has to stamp its disapproval for non-compliance with the Rules of the Court. The explanation tendered by the respondent’s counsel was in the least unsatisfactory. This court associates itself with ADAM J’s views in HPP Studios (Pvt) Ltd v ANZ (Pvt) Ltd 2000 (1) ZLR 318 where he stated thus at page 334:

“The rules of court are made in order to prevent delay or injustice being done owing to this delay and a bar should not be uplifted as a matter of course; it should not be done merely for the asking, otherwise the rules may as well be torn up.”

The court proceeded to hear submissions by the appellant on the merits of the case. The appellant’s counsel stated that he abided by the Heads of Argument filed of record. It was submitted that there is no clear evidence of connivance and no witnesses were called to testify. It was argued that there was massive discrimination as some had their charges withdrawn and others were not charged for allegedly flouting the Code of Conduct. It was further stated that on a balance of probability, the Appeals Committee should not have confirmed the decision of the Grievance and Disciplinary Committee.

The appellant’s grounds of appeal are listed as follows:

The Appeals Committee grossly misdirected itself in making a finding that the appellant connived with the clearing agent, Wymark Investments when there was no evidence on the record to that effect. For instance:

There was no witness called to testify on the connivance with the clearing agent to under value or wrongly classify goods or to cause revenue loss.

The Appeals Committee erred and misdirected itself to discriminatorily charge the appellant among other five employees who were also implicated in the same case involving the same clearing agent, the same system process and the same nature of goods, in the alleged offence.

The Appeals Committee further erred and grossly misdirected itself in making a decision to dismiss the appellant from employment when others were reinstated, for example, Rhosbud Dhlakama who was equally charged with the appellant.

The court will consider the appellant’s first ground of appeal. The appellant argues that there was no evidence and no witnesses were called to testify on the connivance with the clearing agent to undervalue or wrongly classify the goods or to cause revenue loss. A reading of the record shows that the Grievance and Disciplinary Committee made the following findings in respect of this issue:

The appellant examined, assessed and released the six entries in question;

The entries were all from Wymark clearing agent;

The six entries in question were not entered in the Special Delivery Register;

Three of the six entries in question were re-routed from audit yellow lane to green express lane by the appellant;

The permits were not submitted as attachments through the system and they were also not attached to the submitted hard copies;

Road manifest indicated chicken cuts as description of goods and the invoice indicated mechanically de-boned meat;

No Form 45 was raised to verify the discrepancy between the descriptions on the manifest and invoice;

No physical examination was conducted;

The six entries had a prejudice of $14554 in revenue which was underpayment created by the misclassification of chicken cuts; and

The Form 45 was issued to Wymark who had paid the outstanding revenue and $11 250-00 had already been recovered.

The Grievance and Disciplinary Committee came to the decision that the offence under D24 was sustained. The appellant admitted during the hearing that he did not raise the Form 45 when he processed the documents. The documents clearly showed that the products sought to be imported fell under different classification categories. The appellant did not carry out a physical examination of the goods in question. A lot of discrepancies in the clearing of these goods were identified. The appellant sought to explain this by saying there was a lot of pressure at the border post. Was it necessary to call a witness to testify? I think not. The documentary evidence was sufficient for the Disciplinary Committee to make a determination. The record also shows that a Form 45 was subsequently raised and the agent paid the money that was due in revenue. The Appeals Committee dealt with twelve (12) grounds of appeal from the appellant. On the ground that collusion was not proved, the Appeals Committee’s findings were:

“… a matter of collusion is a hidden act which on a balance of probability can be supported by circumstantial evidence presented in the Grievance and Disciplinary hearing, looking at the act by the appellant of assessing, examining and releasing and the fact that these were done on one client for all the six entries in a similar modus operandi such acts point to collusion on a balance of probability.”

The court is of the view that this was a proper analysis of the evidence by the Appeals Committee. There is therefore no misdirection on its part. This ground of appeal must fail.

The second ground of appeal alleges discrimination on the part of the respondent by not charging other employees who fell foul of the law. The appellant annexed the result of a hearing in respect of Tapiwa Masikati. The annexure shows that Masikati was found guilty of Category D25 of the Code of Conduct. It is the way the appeal is worded which is worrisome as the appellant may not be appreciating what an appeal means. The ground of appeal alleges that:

“The Appeals Committee erred and misdirected itself to discriminatorily charge the appellant …”

The Appeals Committee was merely considering the proceedings of the Grievance and Disciplinary Committee. The latter Committee did not “charge” the appellant. It is therefore misplaced to allege that the Appeals Committee was guilty of discrimination. In any event this ground of appeal differs from what the appellant alleged before the Appeals Committee. On the issue of selective application of the law, the Appeals Committee commented as follows:

“… not privy to the case stated by the appellant: each case, should be dealt according to its merit.”

The court is of the view that the Appeals Committee cannot be faulted for coming to this conclusion as evidently the matters referred to by the appellant were not before the committee. There was no misdirection on the part of the Appeals Committee in this regard and that ground is also dismissed.

The third ground of appeal alludes to the fact that the Appeals Committee erred in not reinstating him as had happened to Rhosbud Dhlakama. This ground of appeal is new and was not considered by the Appeals Committee. Evidently the appellant is trying to state that what happened to another individual should also happen to him. The court can only refer to the comments of the Appeals Committee above that each matter should be considered on its own facts and merits. The Appeals Committee was mandated to determine the appellant’s case based on the record of proceedings from the Grievance and Disciplinary Committee. It is also an act of mischief by the appellant to attempt to smuggle in issues which were not placed before the Appeals Committee for its consideration. This ground must also fail.

The appellant has not succeeded in showing any misdirection on the part of the Appeals Committee. As stated by KORSAH JA in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC) at page 670:

“… an appeal court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion.”

The court is therefore of the firm view that the appeal is devoid of merit and is accordingly dismissed.

The court makes the following order:

The appeal, being devoid of merit be and is hereby dismissed.

The decision of the Appeals Committee upholding the decision of the Grievance and Disciplinary Committee to dismiss the appellant is upheld.

That there be no order as to costs.

Dazinger & Partners, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners