Sweeten Chasi v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/11/16
HELD AT MUTARE 16 MAY 2016
CASE NO
JUDGMENT NO LC/MC/11/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MC/11/16

HELD AT MUTARE 16 MAY 2016				CASE NO LC/MC/28/12

& 23 JUNE 2016

In the matter between:

SWEETEN CHASI					Appellant

And

DELTA BEVERAGES (PVT) LTD			Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr A Mutungura (Legal Practitioner)

For Respondent		Mr C Chibaya (Legal Practitioner)

MURASI, J:

Appellant was employed by the respondent as a driver/salesman.  Following allegations of misconduct, appellant was brought before the Disciplinary Committee which found him guilty.  A subsequent appeal to the Works Council confirmed the decision of the Disciplinary Committee.  Appellant has approached this court for relief.

Appellant’s grounds of appeal are formulated as follows:

The Works Council misdirected itself in not putting due weight to the fact that evidence from the car track showed that appellant upon entering the gate with 780 cases of blue empties, did not divert his route and did not have time to off-load 600 cases of blue empties within the time recorded from entry to parking.

The Works Council misdirected itself in relying on the sole physical count of empties of the security guard which was done in the absence of the appellant.  By the time the issue of stolen empties was reported, someone else other than the appellant had had an opportunity to steal the empties.  Further that the stock controller acknowledged  receipt of the full load of 780 blue empties.

The Works Council misdirected itself by holding that the ICT document contained false information which misrepresented the number of blue empties on the truck which appellant tendered resulting in respondent being prejudiced of 600 crates of blue empties and further that in any event the appellant did not write any document as it was done by the DBC clerk.

The Works Council misdirected itself in holding that the appellant did not declare the empties he had and/or denied the guard an opportunity to verify the contents of the truck and trailer.   Appellant surrendered  the ICT to the guard upon entry and in terms of the procedure.

The Works Council misdirected itself in holding that appellant breached “well known procedures” and standing instructions of the respondent as regards entry and exit of trucks at Delta.

Both legal practitioners stated that they would not be making any oral submissions

and requested the court to determine the matter based on the submissions filed of record.

Appellant was charged with several counts.  The first was that he tendered ICT 062083 written 780 blue cases when a physical count showed that it had 180 cases prejudicing the respondent of 600 cases valued at $2460.00.   The second charge was that appellant presented the said document well-knowing that it contained false information.  The Disciplinary Committee found him not guilty of the charge of not following standing instructions as regards the re-fuelling of motor vehicles.  The fourth charge pertained to appellant’s failure to declare the goods he had brought into the premises.

Appellant, in the heads of argument, submits that if the Works Council acknowledged that the car tracking evidence showed that he had not stopped anywhere with the load, how then could he have removed the empties as alleged.  The appellant further argues that respondent was relying heavily on the evidence of the security guard who allegedly made checks after the appellant had left.  In essence, appellant states that there was no proof that appellant had committed the offences in question.

The issue to be resolved is whether the respondent adduced enough evidence to convict the appellant on a balance of probabilities.  The Disciplinary Committee heard evidence from a security guard by the name Jax, another security guard known as Sergeant Majecha and Chakanaka Mukwacha.  The first witness, Jax, was one of those manning the entrance with one Nyatito.  They are the ones who made a report about the alleged infractions.  Jax stated in his evidence that appellant came with a truck and informed the security personnel that he wanted to re-fuel.  Appellant is said to have been asked for the ICT but delayed in producing it.  The witness and Nyatito later found the ICT in the guardroom.  They allegedly noted an anomaly between the figures on the ICT and the contents of the truck.  They made a physical count and discovered that there was a shortfall of 600 cases.  His evidence reads as follows:

“When I went back into the guardroom there was an ICT with 780 crates of which the actual number was supposed to be 180 crates.  So we liaised with Nyatito and (to) hide the ICT and forwarded it to our boss the following morning.”

Asked whether he had asked the appellant about the anomaly he said:

“I did not ask for I was suspecting foul play.”

The witness was also asked as to whether he had brought this to the attention of appellant’s superiors.  His response was:

“Wanted to tell my boss in the morning before telling anyone.”

His “boss”  Majecha did not take the matter any further as his evidence was based on what had been reported to him by the junior security guards.  Chakanaka Mukwacha’s evidence did not shed light on the alleged theft especially what the security guard had referred to as a “forged” ICT.

What was the nature of the evidence required in this instance?  In my view evidence showing a track record of what appellant had received, when it was received, who was to be the person to receive the consignment and what document would show a clear acquittal of the consignment by the appellant.  In casu, the security guards concealed the document, they did not advise appellant’s superiors, that is the stock controller, were not called to testify.  The question that still remains to be answered is on what evidence was the Disciplinary Committee convinced that the appellant had caused a prejudice of $2460.00 to the respondent.  Such evidence is obviously missing from the record.  The question is did respondent discharge the onus that was on it to prove the case on a balance of probabilities?  In Astra Industries Ltd v Peter Chamburuka S 27/12 it was stated:

“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.”

Courts have often pointed out that evidence does not have to be accepted merely because it is uncontradicted.  What is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.  In West Rand Estates Ltd v New Zealand Insurances Co. Ltd 1925 AD 245 KOTZE JA had this to say at 263:

“It is not a mere conjecture or slight probability that will suffice.  The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it.  It must be of sufficient weight to throw the onus on the other side to rebut it.”

Respondent’s heads of argument make submissions that statements by controllers who carried out a stock-check showed that empty crates were missing.  The stock-take did not show that it was appellant who was responsible for the shortage.  The respondent’s heads of argument further show that the evidence of Sergeant Majecha was that one Bhanga had attempted to bribe him on 10 February 2013.  The sergeant is said to have stated that appellant had accompanied the said Bhanga to Guard Alert offices.  The fact remains, was this evidence enough to prove on a balance of probabilities that the appellant did in fact remove 600 cases to the prejudice of the respondent?  It is my view that the Disciplinary Committee took a “laid –back” attitude and did not call for proper evidence showing the view that the Disciplinary Committee was so pleased at having thought of a theory to explain the facts that they overlooked the inadequate and inconsistent statements and therefore assumed the existence of facts which were not proved or which could not be legitimately inferred.  In arriving at a decision in these circumstances, the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn.  Courts have also stated that if the proved facts do not exclude other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct.  In casu, the security guards notice an anomaly with the ICT.  The make a physical count on their own and do not report to appellant’s superiors.  No documentation is tendered as proof to show the existence of this facts.  They leave the truck parked there until the following day.  Meanwhile they have witnessed the appellant leaving the premises with one of the stock controllers they do not make a report to the stock controller on duty.  The stock-take that was conducted at a later stage does not show that it is the appellant who is responsible for the shortage through documentation.

To this end, I associate myself with the observations of GILLSPIE J in S v Jojo Mbiri HH 239/98 where he had this to say:

“In my estimation this is a classic example of the court massaging the evidence in order to have it fit a pre-conception.  That is not the way to do things.  It should scarcely need saying that one must examine the evidence first and see what it proves rather than arriving at a pre-conception first, and see whether it can, no matter how, be supported.”

(Own emphasis)

In the result I am of the considered view that the evidence adduced was insufficient to prove the matter on a balance and probabilities, and the appeal ought to be allowed.

The court makes the following order:

The appeal being with merit, is allowed.

The decision of the Works Council finding appellant guilty culminating in his dismissal be and is hereby set aside.

Appellant is to be reinstated to his former position with effect from date of dismissal without loss of salary and benefits.

If reinstatement is no longer possible, appellant is entitled to damages in lieu of reinstatement which damages shall be agreed upon by the parties failure of which either party may approach the court for quantification.

Each party to bear its own costs.

Mutungura & Partners, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners