Siphiwethina Tshuma v Zimbabwe Red Cross Society

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/171/25
HELD AT HARARE 25TH FEBRUARY 2025
CASE NO. LC/H/637/24
AND
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 25TH FEBRUARY 2025

AND
In the matter between

SIPHIWETHINA TSHUMA

And

ZIMBABWE RED CROSS SOCIETY

RESPONDENT

BEFORE THE HOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPELLANT: T. G. MBOKO
FOR THE RESPONDENT: W.MAGAYA

MAKAMURE J:

[1]This is an appeal against the dismissal of appellant from the respondent’s employ.

The appellant raises eight grounds of appeal. These are that:

‘1.The disciplinary committee erred when it ignored the proper composition of the hearing in which its lawyer who is a board member to become a prosecutor against the employee yet he was also the advisor to the Disciplinary Committee

2. The Disciplinary Committee erred when it ignored its own organization’s policy which showed that a transferred employee is entitled relocation allowance calculated in terms of the relevant policy.


3. The Disciplinary Committee erred when it found the employee guilty of theft and fraud yet no evidence of theft or fraud was presented before it.

4. The Disciplinary Committee a quo erred in finding the employee guilty of signing documents in Matabeleland South despite overwhelming evidence that the planned transfer date was changed by the organization.

5. The court a quo erred in disregarding minutes of Provincial Board on the basis that the new Provincial Manager had not seen them yet the Audit Report clearly alluded to the existence of those minutes.

6. The Disciplinary Committee erred in finding the employee guilty of offences that had nothing to do with the Charges preferred against her.

7. The Disciplinary Committee erred when it ignored that the hearing was not conducted in terms of the Code and that therefore it was a nullity.

8. The Disciplinary Committee misdirected itself when it pronounced the penalty of dismissal yet the charges before it was (sic) not category D offences as no theft or fraud was proven.’

[2] In the heads of argument filed on behalf of the appellant only four grounds of appeal were addressed. When the Court asked how or why this was so Mr Mboko who appeared on behalf of the appellant indicated that grounds of appeal 2 and 8 had been compressed while grounds 1 and 7 were abandoned.

[3] The facts of this matter are as follows. The appellant was employed by the respondent as its Provincial Manager in Matebeleland South Province of Zimbabwe. On 13th September 2022 respondent wrote her advising that she was transferred to its Headquarters in Harare as Resource Development Manager. She was to assume duty in Harare on 1st October 2022. The appellant was however not able to so assume duty since she had to conduct a handover takeover exercise with the incoming manager. The incoming Manager assumed duty on the station $1^{st}$ which was a Saturday. The handover process was conducted on Monday the $3^{rd}$. As a result she was not able to assume duty in Harare on the $1^{st}$ of October 2022. The appellant was not the only employee of the respondent who faced transfer as the record shows.

[4] In order to facilitate the transfer(s), the respondent deposited some funds into all the affected employees’ bank accounts. This included the appellant. The said funds were deposited according to the employer’s (respondent’s) rates and breakdowns. The said funds were approved through the relevant procedures as set out by the respondent. Thereafter the employees including the appellant signed for the receipt of the various amounts and used them for the purposes for which they were advanced. At page 70 of the record appears an example of a copy of a form showing the total amount paid out by the respondent in support of its employees’ movement. This page is actually relevant to the matter under consideration. The page shows that the respondent paid six thousand one hundred United States dollars (USD6100.00) for ‘Staff Transfer Relocation Allowance’. At pages 71 and 72 appear examples of the manner in which employees received and signed for the funds. The pages relate to the period $1^{st}$ to $14^{th}$ October 2022 which is the relevant period. Appellant signed for USD700.00 and USD520.00 respectively. She was in fact one of five people who signed for receipt of some funds. The one form on which the employees signed is titled ‘ALLOWANCES FORM’ and the other one is titled ‘OUT OF HOTEL ALLOWANCE FORM’ and the ‘Activity’ supported by those funds was ‘Staff Transfer reallocation /relocation Allowances’. The one form is dated 14 October (2022) and the other one is dated 14 December (2022). It was clarified by Mr Mboko for the appellant this should read 14 October (2022). These funds came from the respondent’s Head Quarters in Harare. In the same manner the appellant received an amount of three hundred US dollars (USD300.) from the Matabeleland South Province during the same period. At page 166 of the record is a copy of minutes of the Provincial Governing Body showing their appreciation for the appellant’s work in the Province and suggesting that a farewell party be held for her and the accountant who was also leaving the Province.

[5] As a result of the above the appellant was on 24th April 2024 invited for a disciplinary hearing for acts of misconduct along the following lines:

‘Theft or fraud or aiding theft or fraud whether from the Society or from other persons or organization including conspiracy on the same

Paragraph 20, Group D offences.

1. You were transferred from Matebeleland South Province with effect from the 1st of October 2022. You were notified of the transfer on the 12th of September 2022. You officially assumed duty at the HQ on 1st October 2022. After your transfer you signed and approved payment of your own accommodation and per diems in the sum of $300 on the 4th of October 2022. You had no right to approve the payment as you had been transferred from the province. In terms of our procedure your attendance at the province for the handover-takeover process was supposed to be authorized and funded by the HQ. You directly benefited from this irregular conduct. Your conduct is a violation of the code of conduct.’ (Emphasis added).

[6] Disciplinary proceedings were conducted. She was found guilty of the charges, and penalized with dismissal hence this appeal. (Emphasis added).

[7] It appears from the appellant’s response to the charges, the minutes of the hearing and the determination that letter of suspension contained three charges. However, the letter inviting her for the disciplinary hearing contains one wide charge as shown above. Parties should make sure that there is uniformity with respect to the charges contained in the letter of suspension and the letter inviting the employee for a hearing.


[8] When the appellant was suspended from duty pending the disciplinary proceedings she responded as follows (in part):

‘I was paid USD 300.00 in about for Perdiems and out of hotel allowances during the handover and takeover process in the province covering 3-6 October as alluded to.

In about a month down the line, I was paid USD 1200.00 which I understood to be relocation allowance for the transfer initiated by the employer. In terms of the Human Resources Policy and Procedures Manual as covered under article 25.2, the employer shall pay a disturbance allowance for the forced transfer initiated by the employer.

My understanding was that the USD 1200.00 was for the disturbance allowance. When the Finance Director informed me that I was not supposed to have been paid USD300.00 on the same dates as 3-6 October, I undertook to refund the Society as directed by the Secretary General...’

[9] It is common cause that the respondent’s Secretary General caused an audit to be carried out. The audit was carried out in March 2024. That is when it was found out that the appellant had received USD 300.00 during the same period that she had received the other money. During the course of the audit the appellant’s explanation was not sought. This therefore makes the auditor’s conclusion which are crucial to this matter difficult to accept (p76) as they do not contain the appellant’s input at that point in time. The conclusions are that:

‘1. The former provincial manager and accountant of Matabeleland South Province were provided with allowances amounting to US$300.00 each for the same period during which they also received relocation allowances from the Head Office. This suggests that they were paid twice for the same period.


2. The advances granted at Matebeleland South were authorized by the former Provincial Manager and the accountant. However, there was no accompanying documentation or communication trail to substantiate these approvals.

3. The communication sent by the Human Resources Manager explicitly stated that the relocation payments would be made by the Head Office. However, we discovered that the former provincial manager and the accountant had already received allowances from the province before this communication was sent. Notably, they did not disclose this information when they were subsequently advanced allowances at the Head Office.

4. ‘’

[10] The respondent’s stance was that the USD 300.00 ought to have come from the Headquarters and not from the Province since the respondent was now a member of staff at the Society’s Headquarters.

[11] Before this Court, the position submitted on behalf of the appellant was that she is not the one who authorized payment of the USD300.00 to herself but that she was paid after the appropriate procedures had been followed.

[12] The position submitted on behalf of the respondent on the contrary was that it is the appellant who authorized payment of the funds and she later got the money and it was irregular for her to have done so.

[13] Two factors stand out. Firstly the USD300.00 was paid during the time of the handover and take over process and the larger sum was paid later. Page 186 of the record shows the copy of an ‘OUT OF HOTEL FORM’ for the period 3/10/2022 to 05/10/2022 showing that some payment was made to the appellant for accommodation during the handover process.


Then at page 168 there is an email from G Hombarume dated October 8, 2022. The email reads:

‘Dear All

A budget was submitted for the allowances to cater for transfer which will cover a period of 14 days. As soon as funds are available you will be notified. Kindly bear with us as we work out to ensure that you are not greatly inconvenienced.’

The email was copied to the appellant and others some of whose names appear on the list at pages 71 and 72 of the record. This is confirmed by the auditor’s report which has been referred to above. The auditor’s report was that the appellant ought to have declared when she received the later payment that she had been paid USD300.00. Facts show that this was only properly revealed after the audit had been conducted. That is in March 2024. Thus, at the time that the payments were done there does not appear to have been any criminal intent or a deliberate intent to mislead or misrepresent or to deprive the respondent of the funds in question on the part of the appellant. Further and as already noted particular procedures were followed and the appellant was paid by the relevant office on behalf of the respondent and not that she approved and then got the payment. The issue is when the larger sum was paid it appears that it was a blanket sum. Even if the worst scenario is to be imagined, that is of her wrongly approving and obtaining funds for the purpose of ensuring that a proper handover would be conducted, which it was conducted, there would have been committed some offence but not theft or fraud. This means that under the circumstances the offences as indicated in the letter inviting the appellant for a hearing were not proved. Since there was no intent to commit an offence, the question of double-dipping does not arise. This is so considering the fact that it was realized that the appellant was paid twice for the period 3\textsuperscript{rd} to 5\textsuperscript{th} October 2022 only after the audit. Further when the appellant was advised to reimburse the respondent she did so. This is consistent with the appellant’s response to the allegations. What is missing is the answer the appellant would have given to the auditor at the time of the audit. This would have been compared with her response to the allegations and thus enable a comparison of her responses regarding the offence allegedly committed.

The audit that was carried out did not have the input of the appellant. This was the testimony of the auditor, Tinotenda Magaya. There was the assertion that gifts which were bought for the appellant’s farewell were not approved. The auditor testified under cross examination that this was a 50/50 situation as the minutes were not specific. However, the appellant’s response to the allegations was that the said farewell party was approved and money for that function was duly approved and availed. This in my view appears to be consistent with the appellant’s response to the allegations.

[14] The second issue is that the appellant was charged with and convicted for ‘ theft or fraud or aiding theft or fraud’…. The charge was therefore either theft or fraud or aiding the commission of such offences. This means that the appellant could be convicted of either of them and not for all the offences. The Court inquired from Mr Magaya about the manner the charge is framed and his response was that according to the code of conduct it was theft or fraud whichever the facts show. It appears that the respondent left the Court to decide which of the offences was committed. This not proper. It is up to the litigant to prefer the charge and prove it. Where an employee is facing a main and an alternative charge, only one of them can be sustained. The employer had the option to prefer the charges separately and then prove all of them.

The grounds of appeal have been reduced, unfortunately apart from indicating that grounds 2 and 8 had been compressed and grounds 1 and 7 were abandoned, I did not see the actual rephrased remaining grounds. However from the heads of argument it appears that there is grief regarding how the respondent ignored how it used to pay its employees for transfers (original ground 2); that there was no evidence proving either theft or fraud (original grounds 3&6); that the Disciplinary Committee disregarded minutes and the approval which was done (original grounds 4&5); and that the appellant was found guilty of offences that had nothing to do with the offences preferred against her (original ground 6).

In **British American Tobacco Zimbabwe v Chibaya SC 30/19** it was stated that:

‘If evidence is such that, the tribunal can say “we think it more probable than not, the burden is discharged, but if the probabilities are equal it is not.”’

In **Astra Industries Limited v Peter Chamburuka SC 27/12** the Supreme Court stated 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. See also **Nyahondo v Hokonya & Ors 1997 (2) ZLR 457; ZESA v Dera 1998(1) ZLR 500(S).**

As I indicated above that the appellant signed for funds after the respondent had made payment following the necessary procedures having been made by the respondent; that the appellant could only be convicted of either theft or fraud or aiding theft or fraud but not of all the offences as the charges were framed in the alternative and that it was up to the respondent to prefer the appropriate charge; that even if the appellant had committed an offence it would not have been either theft or fraud or aiding to commit either of the two offences; and that there were minutes showing that the farewell party and gifts bought for her were properly done. This in my view answers the grounds of appeal. The appellant has therefore discharged the requisite onus on a balance of probabilities. I therefore find that there is merit in the grounds of appeal. In the result, the appeal succeeds.

Costs were not sought on behalf of the appellant. An order will therefore be made as prayed.


In view of the foregoing it is ordered that:

1. The appeal be and is hereby granted.

2. The decision of the Disciplinary Committee finding the appellant guilty be and is hereby set aside and substituted with the following:

‘The employee is found not guilty and acquitted and is accordingly reinstated without loss of salary and benefits.’

3. The respondent be and is hereby ordered to reinstate the appellant to her position with no loss of salary or benefits with effect from the date of suspension. In the event that reinstatement is no longer possible the respondent be and is hereby ordered to award the appellant damages in lieu of reinstatement as agreed between the parties. Should parties fail to agree either party is free to approach this Court for quantification.

**MBOKO T.G. LEGAL PRACTITIONERS, APPELLANT’S LEGAL PRACTITIONERS.**

**COGHLAN, WELSH & GUEST, RESPONDENT’S LEGAL PRACTITIONERS.**
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