Share Pirimukai v Zimbabwe Consolidated Diamond Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/1/2020
HARARE, 17 SEPTEMBER, 2019
CASE NO. LC/MC/01/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/MC/1/2020

HARARE, 17 SEPTEMBER,  2019		     CASE NO. LC/MC/01/19

AND 24 JANUARY, 2020

In the matter between:

SHARE PIRIMUKAI								Appellant

ZIMBABWE CONSOLIDATED DIAMOND COMPANY (PVT) LTD	Respondent

Before The Honorable L. Hove, Judge:

For Appellant				E. Matsanura (Legal Practitioner)

For Respondent			C. Chibaya (Legal Practitioner)

HOVE J:

The Appellant in this case was charged with two offences i.e gross incompetence or inefficiency in the performance of his work and theft or fraud. He was found guilty and dismissed from employment. He appealed to the designated authority. The appeal was dismissed and he noted this current appeal to the Labour Court.

He raised two grounds of appeal and these were couched as follows;

The Designated Authority grossly misdirected itself when it upheld the decision of the Disciplinary committee that the appellant was guilty of two charges namely contravening part B,  4(h) and 4 (d) of Statutory Instrument 165 of 1992 where the charges were allegedly emanating from a single set of facts and there was unlawful splitting of the charges.

The Designated authority grossly misdirected itself when it upheld the decision by the disciplinary committee despite that the essential elements of the two charges namely gross incompetence or inefficiency in the performance of his work and theft or fraud had not been proved on a balance of probabilities.

The facts that led to the allegations of theft and gross incompetency or inefficiency were that there was an investigation report which revealed that a total of 72 diamonds pieces were picked and only 36 diamonds were slotted giving a variance of 36 diamonds with an estimated value of $64 800.

During the initial proceedings the complainant stated that both charges were warranted as the appellant had been grossly incompetent in failing to stop theft, or to account for the diamonds and also the appellant had connived with the pickers and securico guard to steal the diamonds. The complainant insisted that both offences had been committed, so even if the charges are emanating from a single set of facts, the appellant had committed the two breaches. The two charges were therefore justified and there is no improper splitting of charges.

The respondent also challenged the first ground of appeal on the basis that it was not in compliance with rule 19 (1)(a) of the Labour Court Rules, 2017 which mandates the appellant to file grounds of appeal that are precise. The grounds are not raising any point of law but seek to challenge factual conclusions.

The Respondent’s submissions and reasons for charging the appellant with the two charges justify the splitting of the two charges. The appellant had both been

inefficient in the performance of his duties and had also on a balance of probabilities had connived with the work mates to steal from the employer. This allows the splitting of charges. The appellant has also not shown that he was prejudiced by such splitting of charges.

I however do not believe that there is any merit in alleging that the first ground lacked precision and was not concise. The ground crafted as it was, was rather inelegant but it was fairly precise and concise.

It is however trite that an appellate court will not interfere with a decision of a trial court based purely in a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.

See Hama v NRZ (1) ZLR 664 (S).

In casu, the appellant authority aquo considered that 72 pieces of diamonds had been picked and 36 could not be accounted for. The appellant who was the eye of the company providing security services never detected the theft. Infact the investigation report was as a result of a tip off that diamonds were being stolen and the appellant who was providing a critical security service never noticed diamonds which were stolen right under his nose. His duty was to physically monitor and report any security breaches. The evidence of the CCTV also collaborated that the appellant together with the other security details and other of the Respondent’s employees had all acted in a way that showed on a balance of probabilities that they had connived to beat the security system and then steal the 36 pieces of diamonds.

The record of the initial proceedings detail how the racket was carried out from pages 22 of the record. The investigating officer also outlined on page 34 of the record how the appellant and the pickers would unprocedurally leave the diamonds in cups. The diamonds ought to have been counted, weighed and banked. This was not done and the appellant never reported any anomalies.

A perusal of the initial disciplinary proceedings will show that indeed the appellant most probably connived with the security details and the pickers to steal the diamonds that went missing and could not be accounted for. It cannot be true therefore that the charges were not proved on a balance of probabilities as is alleged by the appellant in his second ground of appeal.

In advancing his argument that there was no evidence to support a finding of guilty, the appellant relied on the decision of the honourable Judge of appeal in Astra Industries Limited v Peter Chamburuka SC 27/12 which stated that;

“The essential elements of theft remain the same whether in disciplinary hearing or in a criminal trial. The position now appears settled in this jurisdiction that where a person is charged in a disciplinary hearing with an offence of a criminal nature such an allegation should be proved beyond a reasonable doubt and that it would be unfair to condemn a man and punish him for an offence of criminal nature on a balance of probabilities rather than evidence which established the commission of the offence beyond a reasonable doubt……….”

It was argued on behalf of the appellant that:

“Thus it was incumbent upon respondent to establish the essential elements of theft that appellant unlawfully took away diamonds belonging

to Respondent with no intention of permanently depriving Respondent of its property. Both the actus rea and mens rea was supposed to be proved. That was not proved in this case”.

That this is not the correct position of law is beyond argument. The courts have; times without number emphasized that the standard of proof in all civil proceedings, including  labour disputes, is on a balance of probabilities, on a mere preponderance of probabilities.

See the case Caps Holdings v Chikwavira SC 73/99

Zesa v Dera SC 79/98

In Delta Corporation Ltd v Forward Wholesalers Ltd and Anor HH 53/17 the court aptly captured the issue as follows;

“It is trite that;…….in civil cases, the standard of proof is never anything other than proof on a balance of probabilities. The reason for the difference in onus in civil and criminal cases is that in civil cases the dispute is between individuals where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims’’

The standards of quasi-judicial tribunals are not to be equated to those of the courts of law. The same applies to the standard of proof in civil proceedings and Labour disputes, it is not to be equated to that in criminal cases.

The reason for the difference in the standard of proof between criminal proceedings and civil proceedings was explained as far back as 1995.

In Ebrahim v Pittman NO 1995 (1) ZLR (H) when the court quoting from Govan v Skidmore 1952 (1) SA 732 stated that;

“It is trite that in general, in finding facts and making inferences in civil cases the court may go upon a mere preponderance of probability, although in so doing it does not exclude every reasonable doubt.

In criminal cases,…..every fact material to establish the guilt of the accused must unless it is admitted, be established by proof beyond a reasonable doubt of their propriety and correctness.

In civil……one by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amoungest several conceivable ones, even though that conclusion be not be the only reasonable one”.

The initial disciplinary tribunal balanced the evidence before it and came to the conclusion that the appellant was guilty. The appellant authority considered the facts of the matter and came to the conclusion that the guilt of the appellant had been proved on a balance of probabilities. It upheld the decision of the initial disciplinary authority. The decision may not have been the only reasonable one but the probabilities showed that the appellant most probably committed the offences.

This court cannot lightly interfere with decisions of the “trial” tribunals. This court can only interfere when it appears to it that the tribunal aquo failed to apply its mind to the evidence placed before it and came to a grossly unreasonable conclusion on the facts.

My perusal of the record of the disciplinary proceedings shows that the tribunal aquo did not take leave of their senses. The findings made on the facts were supported by the evidence.

In the result, I find no merit in the two grounds of appeal and I accordingly make the following order;

Order:

Appeal be and is hereby dismissed with costs.

Chibaya & Partners	- Appellant’s Legal Practitioners

Caleb Mucheche & Partners Law Chambers 	- Respondent’s Legal Practitioners