Shadreck Gwatirera & 3 Ors v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/719/2013
HARARE, 2 SEPTEMBER 2013, 3
OCTOBER 2013 & 31 JANUARY 2014
CASE NO LC/H/150,151,156,
160/2010
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/719/2013

HARARE, 2 SEPTEMBER 2013, 3		  CASE NO LC/H/150,151,156,

OCTOBER 2013 &	31 JANUARY 2014	  160/2010

In the matter between:-

SHADRECK GWATIRERA						1st APPELLANT

And

JAMES MUCHENJE							2ND APPELLANT

And

LUCKSON MUDYIWA						3RD APPELLANT

And

FARAI WADAWAREVA						4th APPELLANT

Versus

DELTA BEVERAGES						RESPONDENT

Before the Honourable D L Hove :  Judge

For the Appellants		M Ndebele (Legal Practitioner)

For the Respondent		G Chingoma (Legal Practitioner)

HOVE J:

The appellants were employed as stock controllers by the respondent company (”the employer”).

The alleged facts are that, when a customer vehicle came in to purchase beer, it would be weighed at the weighbridge. The stock controller would record this first weight.

The vehicle would then be loaded with beer.

After loading, the vehicle returns to the weighbridge, were its weight is again recorded. A ticket would then be produced, showing the vehicle’s first weight and the second weight. The difference between the two weights is printed in duplicate. The customer gets one copy and the stock controller retains the second copy for purposes of reconciling the sales against the salesman’s invoices at the end of the day.

It is alleged that, the appellants fraudulently misrepresented the volumes of sales through understating the post loading weight (i.e. the second weight) of various customers’ vehicles on divers dates. The appellants are thus alleged to have understated the actual amount of beer purchased and taken out by the customers.

It is further alleged that, the printout from the weighbridge machine shows how on several dates, the appellants would understate the actual amount of beer purchased by the customers.

These facts are similar in the case of all four appellants. The only difference is the actual dates of the alleged offences and the customers whose vehicles had the second weight understated.

The employer relied on the weighbridge print outs to prove its case.

The respondents argue that, the employer erred in finding them guilty without producing the actual weighbridge tickets or the bulk loaders book to show that the appellants had been guilty or responsible for the forgery or fraud.

Further the appellants allege that, it was not only themselves who did the weighing since their supervisors also did the weighing.

The grounds of appeal also allege that, there was no evidence warranting the confirmation of the verdict of dismissal by the works council.

It cannot however, be said that, there was no evidence on which to base a finding of guilty on a balance of probabilities. It is true that, producing the weighbridge tickets would have been the best evidence to show that, the appellants had forged the documents and understated the bulk purchases of beer. It was however, common cause that these tickets were not available. There however, was available the weighbridge machine printout which was availed by loss control. This print out sufficiently proved that there had not been an honest declaration of the bulk purchases, that the appellants had indeed fraudulently misrepresented the volumes of sales i.e. the weight of customer vehicles after they had been loaded with the beer purchases, was on several occasions being understated.

In the case of Gwatirera, the printout showed that on 12 August 2010, he had understated the bulk beer sales. The actual sales were 6920 litres and yet the appellant stated them as 2 920 litres. The printout also showed similar understatements on at least five other occasions.

The fact that the supervisor may have weighed the vehicles in the appellant’s absence would in my opinion not subtract from the fact that the appellant acted fraudulently when he (and not the supervisor) understated the bulk beer purchases.

The printout also was held to have shown that (by way of an example) on 4 August 2009, a customer by the name of Mashazhike bought 740 litres of beer but these were not declared. Further, three other purchases on the same day were fraudulently understated.

The physical checks which the appellants used were not a substitute for the established procedure of recording the first and second weights of a customer’s vehicle as already outlined.

In relation to the second appellant, Mudyiwa, the printout also showed that there had been an under declaration of sales on 5 August 2010. The correct beer sales were a total of 6780 litres and yet the appellant recorded a total of 4320 litres. He again was the one who did the reconciliation and fraudulently recorded and understated total sales. The fact that his supervisor may have weighed some of the vehicles does not subtract from the fact that when he (and not the supervisor) reconciled the total sales, he fraudulently understated then.

The printout also showed similar under declarations on 26, 27, 31 July 2009 and again on 2, 5, 6, 7 and 8 August 2009. These examples were just a sample of the under declarations. It is alleged that on 27 July a purchase of 980 litres of beer was under declared when the appellant declared in respect of that purchase only 820 litres.

As regards the third appellant, one Wadawareva, the printout showed that the appellant under declared a purchase by one Shoko from the actual purchase of 7620 litres to only 3020 litres.

On several other dates the appellant understated the bulk purchases during his reconciliations.

The appellants have not sought to argue why the weighbridge machine printout showed these variances which show that the actual purchases were being routinely understated by the three appellants. Instead the appellants preferred to highlight the fact that there were no weighbridge tickets. They argue that the absence of the tickets means there is no evidence as already indicated there was evidence against them in the form of the printout. They did not seek to address the alleged inconsistences brought out by the printouts.

The existence of the standard operation procedures or their non-existence in my opinion is also irrelevant. The issue is whether or not the appellants understated the bulk beer purchases when they reconciled the daily total sales. The answer according to the evidence on the print out is in the affirmative.

This shows that the respondent did manage to prove its case against the appellants.

It is accepted that in labour matters, as in all civil matters, the standard of proof is on a balance of probabilities. The production of the printout which shows the variances shows that the employer managed to prove its case on a balance of probabilities as it is required to do at law.

See in this regard the cases of Ebrahim v Pittman NO 1995 (1) ZLR 184, Govan v Skidmore 1952 (1) SA 732. It was established in the Govan case that:

“It is trite law that in general, in finding facts and making inferences in civil cases, the court (in this case the employer) may go upon a mere preponderance of probabilities, although in so doing, does not exclude every reasonable doubt”.

Again it was stated that in civil cases one may 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 employer thus managed to discharge the onus upon it to show on a balance of probabilities that the appellants had indeed acted fraudulently.

The appeal is therefore without merit and must fail.

The fourth appellant one Muchenje was not represented during the hearing. He was also not in attendance at the court to prosecute his appeal. He is accordingly found to have been in default and his appeal remained unprosecuted.

In the result, the court issues the following order:

The appeal by Muchenje is dismissed for want of prosecution.

The appeal by the other three appellants is dismissed for lack of merit.

The employer’s decision to find the appellant guilty and to dismiss them is upheld with costs.

D L Hove

JUDGE – LABOUR COURT

Chadyiwa & Associates, appellants’ legal practitioners

Dube Manikai & Hwacha, respondent’s legal practitioners