Simon Makaripe v Unki Mine (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/774/16
HELD AT HARARE 24 MAY 2016
CASE NO LC/H/774/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/774/16

HELD AT HARARE 24 MAY 2016				CASE NO LC/H/902/15

& 2 DECEMBER 2016

In the matter between:

SIMON MAKARIPE				Appellant

And

UNKI MINE (PVT) LTD			Respondent

Before The Honourable Manyagadze, J

For Appellant		T Marume (Legal Practitioner)

For Respondent		S Bhebhe (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the decision of the respondent’s Disciplinary and Grievance Committee (Appeals Committee) which upheld the appellant’s dismissal from employment.

The brief facts of the matter can be summarised as follows:

The appellant was employed by the respondent as an Administration Manager. The respondent is a mining company under the Anglo-American group of companies. On 7 August 2015, the appellant drew 92 litres of fuel from the respondent’s fuel stores in Lochinvar, Harare. Of this fuel, 50 litres went into 2 containers, whilst the other fuel went directly into the tank of the vehicle the appellant was allocated to use. It was a  Mazda B1800 Pick-Up truck.

It is alleged the fuel that went into the containers had no authorisation. It is only the fuel that went into the vehicle tank that was authorised. As a consequence of this , the appellant was charged with misconduct in terms of Section 3.4 (c) Schedule 1 (A) of the respondent’s Code of Conduct, the charge being;

“Theft in all its forms”

The Disciplinary Committee found the appellant guilty as charged, and imposed a penalty of dismissal. His internal appeal to the Appeals Committee was unsuccessful, prompting the appeal to this court.

The grounds of appeal are stated as follows:

“1.	The Honourable Disciplinary and Grievance Committee grossly misdirected at law by disregarding a requisition form submitted by the accused and making a finding that it was irrelevant.  The Disciplinary Committee ought to have arrived at finding that it was relevant as it highlighted that there existed no written or exact fuel issuance procedure at the workplace.  Hence, the accused had acted in a reasonable matter.

The Disciplinary and Grievance Committee grossly misdirected factually which misdirection amounts to a point of law in failing to appreciate conflicting evidence by the complainant and witnesses which inconsistencies were material to the case in question and to the charge raised.

The Disciplinary and Grievance Committee grossly misdirected factually by failing to make a finding that appellant had completed relevant fuel issuance documents in the form of the requisition form and the fuel issuance form.

The Disciplinary Committee misdirected by making a finding that appellant was guilty of theft when all essential elements had not been proved at law.

The Disciplinary and Grievance Committee factually misdirected by ignoring clear evidence establishing that appellant had duly advised and notified the respondent of the fuel drawn, therefore as per practise the procedure had been followed.

The Disciplinary Committee misdirected factually by meting a dismissal penalty, despite monumental evidence of mitigatory factors for the accused.

The Disciplinary and Grievance Committee grossly misdirected by dismissing appellant without justifying failure to resort to statutorily recommended alternative penalties not dismissal.”

The grounds of appeal can be condensed into one fundamental issue. The issue is whether the evidence before the Disciplinary Committee established, on a balance of probabilities, that the appellant had the intention to steal the fuel in question. At the hearing of the matter, Mr T Marume, for the appellant, formulated the issue as follows:

“The nub of the issue is whether or not the appellant committed an act of theft by filling up two containers recorded on the fuel requisition form.”

Mr Bhebhe, for the respondent, expressed the issue as follows:

“The simple question is whether or not the appellant committed theft in all is forms and whether there is proof on a balance of probabilities.”

It must therefore be pointed out, from the outset, that this appeal is dealing  purely with the factual findings of the Disciplinary Committee, which findings were upheld by the Appeals Committee.  The approach of an appellate court in such situations is well established. It was articulated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.  KORSAH JA stated, at p 670:

In the instant case, the pertinent findings of the Disciplinary Committee, on which it based its verdict of guilty, are well summarised in the minutes of the disciplinary proceedings.  Page 18 of these minutes record the following critical findings:

“1.	The accused pleaded not guilty of theft.

2.	Authority was given by Financial Accountant for Simon Makaripe to use a pool vehicle Reg. No. AAG 0341 for travelling from work to home.

3.	Simon Makaripe requested for the vehicle and fuel for business use.  The company Secretary authorised the fuel to fill up the vehicle Reg. No. AAG 0341 with petrol on 7 August 2015.  Use of vehicle for business purposes was authorised by the financial accountant.

4.	Simon Makaripe is not empowered to authorise dispensing of fuel from the storage tanks.

5.	Simon Makaripe did not request for additional fuel in containers from those empowered to authorize fuel dispensing and so obtained no such authority.

6.	Simon Makaripe proceeded to instruct the fuel attendant (fuel assistant reports directly to Simon Makaripe) to issue him with fuel in two (2) containers.  Simon signed for receipt of 92 litres of petrol, including amount in containers for which no authority was obtained.

7.	Wording on the original fuel requisition was altered to include “+containers” after the company Secretary had already signed it, which in itself is fraudulent.  Makaripe signed for this.

8.	The fuel in containers was removed without due authorization.

9.	During the hearing proceedings, the accused stated that the fuel in the vehicle fuel tank was enough for his use for him travelling for business only (from home to work).

10.	There is no second signature by any authorization signatory on the fuel requisition authorizing fuel in containers.”

It is significant to note that the basic facts are not disputed by the appellant. It seems to me that the gravamen of  his appeal is that, given that he filled in the fuel requisition form, he had no intention whatsoever of concealing his procurement of the extra fuel that was not directly put into the vehicle tank. This is clearly reflected in the following paragraphs from the appellant’s heads of argument:

“A appears from the record, the appellant in question had completed the fuel issuance book and also the requisition documents.  Therefore, the issue of detection and accountability was well in the picture.”

“In addition, the committee disregarded the evidence not basing on its relevance or lack thereof, but because it was of the view that it would not take the appellant anywhere.  It is hat (sic) finding which was (sic) erred and based on misdirection.  It was evidence that highlighted that appellant was well within accountability framework of the employer.”

“It then follows that the appellant’s defence had not been challenged that the appellant had complied with the fuel issuance and also the requisition form, which would ultimately be placed before superiors for auditing. Therefore, the appellant could not have intended to steal as alleged, yet he complied with completing the relevant forms.”

The appellant contended that the most he could have been found guilty of was a breach of the procedures relating to the issuing of fuel, not theft. The evidence presented simply did not support a charge of theft, he argued. The appellant referred the court to the case of Astra Paints v Chamburuka, SC 27/13; particular reference was made to OMERJEE JA’s remarks that:

“It is worth to note that theft has essential elements which have to be proved in order for a determination of the same to stick.  Therefore, as was noted in the Astra Paints v Chamburuka SC 27/13 wherein the court held that;

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.  This position has been affirmed by this court.  In Book v Davison 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ  quoted with approval the words of POTGIETER AJA  in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 D at 711 E-G:

“The general principle governing the determination of the incidence of the onus is the one stated in the Corpus luris simper necessitasprobandiincumbitili qui agit.  In other words he who seeks a remedy must prove the grounds therefore.”

The appellant’s case is hinged on the averment that the respondent did not prove intention to steal. It failed to discharge the onus of proof on that essential element of the offence alleged.

In my view, the facts established do not support the appellant’s averment. Intention to steal, almost invariably, is inferred from the circumstances of the case, unless the perpetrator of the theft clearly admits formulating such an intention. The ease with  which such an inference is made will of course depend on the circumstances of each case.

In casu, the allegations of theft relate to the extra fuel that was put in containers. There was no authorisation for that. This much is not in dispute.  The endorsement on the requisition slip “+ containers”  was done after authority to obtain fuel for the vehicle tank had been obtained. The other fuel required its own authorisation. This was not sought. In this respect, the following findings by the Appeals Committee are pertinent;

“S Makaripe is not the one who added on the requisition” +containers”.  It is Liberty who wanted the true picture to be shown of the transaction that had taken place on the withdrawal of 92 litres by appellant.

The committee’s finding was that while all fuel withdrawn was recorded anyone auditing fuel issues for that particular day would not have known that 50 litres of the 92 litres withdrawn was taken in containers and only 42 litres was dispensed directly into the vehicle.

It would therefore have required a vigilant person to note that something was amiss.  In that fashion appellant had concealed 50 litres withdrawn into containers. (Underling added)

On the Executive Summary of the Investigation Report, it is recorded as follows;

“Between 5 August 2015 and 13 August 2015, Makaripe using the Mazda B18 covered a distance of 588 kilometres instead of 128 kilometres he was expected to cover between his residence and workplace leaving 460 kilometres unaccounted for.”

Matters could, perhaps, have been different if the appellant had sought authorisation for the extra fuel, even post facto. The facts show that he had ample opportunity to do so, before commencement of investigations. He did not. The established facts, in my view, overwhelmingly militate against the appellant’s innocence.  The Disciplinary Committee cannot be faulted for drawing an inference of guilt. Neither can the Appeals Committee for upholding the former’s determination. The appeal against conviction cannot succeed.

On penalty, one simply needs to note that the conviction is one for dishonesty. The person convicted held a managerial or supervisory position. There was therefore a relationship of trust between the two parties. Breach thereof goes to the root of the employment relationship.  This is what the respondent drew the court’s attention to, in paragraph 24.2 of its heads of argument;

“The conduct went to the root of the contract of employment.  Theft destroys any trust that is supposed to exist between employer and employee.  The Supreme Court, in the case of Standard Chartered v Michael Chapuka SC 125/04 at p 9 held that

“The relationship between Standard Chartered and Chapuka was one based upon trust and confidence.  It is sufficient that in dismissing Chapuka from employment Standard Chartered felt that as a result of his own acts of misconduct it could not continue to repose in him the trust and confidence that he would perform his duties as senior member of staff with a high degree of honesty.  It is also sufficient that any reasonable employer in the position of Standard Chartered could on the facts have dismissed Chapuka for what he did.”

In the circumstances, the appeal against penalty cannot succeed.

In the result, it is ordered that;

The appeal be and is hereby dismissed in its entirety.

The appellant shall bear the respondent’s costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners