Tadious Nyamuziwa v Zimplats (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/793/2014
HARARE, 1 SEPTEMBER 2014
CASE NO 793/2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/793/2014

HARARE, 1 SEPTEMBER 2014 &		            CASE NO LC/H/116/2014

21 NOVEMBER 2014

In the matter between

TADIOUS NYAMUZIWA							APPELLANT

Versus

ZIMPLATS (PRIVATE) LIMITED					RESPONDENT

Before The Honourable R F Manyangadze  :	Judge

For the Appellant		T J Mafongoya  (Legal Practitioner)

For the Respondent         A K Maguchu  (Legal Practitioner)

MANYANGADZE J:

This is an appeal against the decision of the respondent’s Appeals Committee. The Appeals Committee upheld the Disciplinary Committee’s decision to dismiss the appellant from employment after it found him guilty of misconduct.

The factual background is largely common cause. The appellant was employed by the respondent, a mining company, as Section Engineer. He enjoyed the benefit of a personally allocated vehicle, a Mazda BT 50 truck.

On 5 January 2014, the appellant attempted to cross Munyati River, at Musena bridge. He was driving the company BT 50 truck, and was on his way to Ngezi from Mvuma. The vehicle was swept away by the flooded Munyati River. The appellant managed to escape unhurt. The extensively damaged vehicle was subsequently retrieved by the company’s rescue team.

The appellant was charged with misconduct in terms of the company’s Code of Conduct. The charges were:

3.3.5	(a)	wilful loss of company property.

(b)	wilful damage of company property

(c)	wilful misuse of company property

3.6	Negligence or responsibility for a wrongful act or omission that causes accidents, injury or death at work.

The Disciplinary Committee found him guilty of all charges except 3.6, which was the fourth on the list of charges levelled against the appellant. It imposed a penalty of dismissal.

The appellant’s internal appeal to the Appeals Committee was dismissed on 10 February 2014. He noted an appeal with this court on 12 February 2014.

The appellant’s grounds of appeal were simply stated as follows:

“I did not cause the following:

Wilful loss of company property;

Wilful damage of company property; and

Wilful misuse of company property.”

The following issues emerge from a reading of the parties submissions:

Whether or not the appellant had the intention to cause loss, damage or misuse of company property;

Whether or not there was an improper splitting of charges; and

Whether or not the penalty of dismissal was appropriate.

The question of intention seems to be the main one in this matter. It was contended, on behalf of the appellant, that he did not have the requisite intention to perpetrate the alleged acts of misconduct.

A reading of the charges clearly shows that intention is an essential element of the cited offences. A simple, literal, grammatical meaning of the charges as framed in the Code of Conduct, shows this. The repeated use of the word wilful, in respect of each act of misconduct, shows that intention is an essential element or component of the offences. It must be clearly proved or established before an offender can be held liable.

In this regard, the appellant referred the court to the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262. That case underscored the principle of giving words their grammatical and ordinary meaning or effect. The use of the word “wilful” in the respondent’s Code of Conduct, indicates that what was envisaged is a deliberate intention to cause damage or loss. The offender must have deliberately set out to cause such harm, damage or loss.

It is significant that both the appellant and the respondent referred to criminal law principles on intention. The respondent cited the case of Attorney General v Mbewe HB 91/04 and in particular, cited these remarks:

“From the findings, she knowingly possesses the dagga. It is trite that that means it is clearly an essential ingredient of the offence.”

Reference was also made to the works of prominent authors on criminal law, Burchell & Hunt, South African Criminal Law & Procedure Vol 1.

What clearly comes out of the learned authors’ works is that the test for intention is always subjective. The first rung of the enquiry is on actual intention. It is the offender’s aim and object to inflict harm or loss, and he deliberately sets out to do so.

The second rung of the enquiry is on constructive or legal intention. It is still subjective. The offender, subjectively, foresees the possibility of harm or loss occurring, and persists with his wrongful actions, reckless as to whether such harm or loss in fact occurs.

In my view, the facts in casu do not establish the existence of intention, either actual or constructive.

It appears the respondent placed reliance more on constructive intention. This is seen in the way the respondent’s Heads of Argument are constructed. Paragraph 16 states, inter alia that:

“The offence of wilfulness includes an element of intention. In this case the appellant had legal intention to cause damage and loss to the company property. According to Burhell & Hunt, South Africa Law & Criminal Procedure Vol 1 page 131, legal intention suffice ‘if the accused having foreseen the real possibility of the existence of the circumstances in question, nevertheless persisted in his conduct irrespective of the foresight.”

The respondent further makes reference to the case of S v Magwada 2002 ZLR 576, were the elements of legal intention were outlined as subjective foresight of the possibility of criminal consequences, and recklessness.

I am unable to uphold this contention. Whilst the facts show that the appellant made miscalculations as to the safety of his attempt to cross the river, they do not prove that he had the intention to destroy the company property. For one to establish such an intention, one must show that the appellant foresaw the possibility of both the car and himself being swept away, and was reckless as to whether such consequence occurred. He intended to destroy both himself and the car. That seems to me an untenable inference. What is more probable is that he thought, erroneously, that he could make it to the other end of the river. In doing so, he was negligent. This is where the legal principles were mixed up. The subjective test for intention and the objective test for negligence were misconstrued.

This is seen in paragraph 19 of the respondent’s Heads of Argument. It is stated:

“The appellant surely ought to have and must be held as having foreseen the real possibility of the motor vehicle being swept away and being damaged by the flooded river.”  (emphasis added)

The learned authors Burchell and Hunt emphasized this distinction, between the subjective test for intention and the objective test for negligence. They expressed it this way:

“It is now clear that in our criminal law intention is invariably judged subjectively. The subjective test takes account only of the state of mind of the accused, the issue being whether the accused himself foresaw the consequences of his act. The objective test neglects the accused’s state of mind and is concerned solely with the question as to whether a reasonable man in the position of the accused would have foreseen the consequences-in other words, whether the accused ‘should’ or ‘ought’ to have foreseen them irrespective of whether in fact he did or not.”(South African Criminal Law & Procedure, Vol. 1, General Principles of Criminal Law p 126, Juta & Co, 1970).

The authors went on to observe that the test for negligence in criminal law is the same as that of the civil law. It is objective. They then outlined the requirements of negligence as:

“(a)	a reasonable man in the accused’s position would have foreseen the possibility of the occurrence of the consequences or the existence of the circumstance in question; and

(b)	a reasonable man would have guarded against that possibility; and

(c)	the accused failed to take reasonable steps to guard against it.”(Op. cit p 152)

The test for negligence is that of a reasonable man. It is objective. The question posed is “Would a reasonable man in the position of the appellant have foreseen the possibility of the motor vehicle being swept away or damaged by the flooded river?”

The answer to this, in my view, is certainly in the positive.

The next question would be “Would a reasonable man have taken steps to guard against the reasonably foreseeable harm occurring?”

The answer to this is also in the positive.

The next and final rung of the enquiry would be, “Did the appellant take the necessary steps to guard against the harm?”

The answer to this, in the circumstances, is in the negative. A reasonable man in the circumstances the appellant found himself in, would have explored the possibility of an alternative route, even if it was longer. The record shows he was advised of such a possibility by the local people, and disregarded the advice. He could also have waited until the river subsided, even if it was going to delay his journey.

By proceeding to drive across the bridge, the appellant’s conduct fell short of that of what a reasonable man would have done under the circumstances described. He clearly was negligent, even grossly so.

The error the respondent fell into was to impute an intention it could not prove. It should have proceeded on the basis of negligence. It seems the respondent overstretched the concept of legal intention to cover negligence.

In Astra Industries Limited v Peter Chamburuka, the appellant company’s disciplinary authority found the respondent guilty of “theft and/or aiding theft”, among other misconduct charges.

The evidence fell short of proving the requisite intention. OMERJEE AJA (as he then was) stated at pages 4 – 5 of the cyclostyled judgment:

“It is this Court’s view that the appellant company failed to discharge the onus upon it. The fact that the respondent admitted that he mistakenly loaded 4 x 20 litres of paint and gave the security guard a wrong invoice does not mean that he intended to deprive the appellant of his paint. The appellant was required to prove that the respondent’s intention was to permanently deprive the appellant of his paint.  There is nothing to disprove the respondent’s assertion that he made a mistake when he loaded 4 x 20 litres of lacquer thinners into the truck instead of 4 x 5 litres.

In our view, the conclusion of the court a quo that the intention to deprive the owner of his goods on the charge of theft had not been established, is a correct finding. There is therefore no basis upon which this Court can interfere with the above finding of the court a quo because there is no evidence on record that shows that the respondent intended to permanently deprive the appellant of his paint.

The papers filed of record reveal that the respondent was facing four counts of misconduct two of which were of negligence and he pleaded guilty to those counts. However, the court a quo in finding that the respondent was not guilty of theft or aiding theft did not make a finding as to whether or not he was guilty of negligence.

The respondent had admitted having been negligent. At the very least, the admitted facts proved that he was negligent in executing his duties. The court a quo should therefore have substituted a verdict of guilty of negligent performance of duty. As all the facts are before us, this Court can correct this anomaly without the need to remit the matter. Accordingly, the order of the Labour Court must be set aside and substituted with one finding the respondent guilty of negligence.”

In the instant case, it can similarly be stated that the element of intention was not established. It was an essential element of the offences with which the respondent was charged. He cannot be held liable when that essential element was not proved.

The facts clearly establish negligence. The facts even reflect that the degree of negligence was high. However, there is a serious problem in this respect. The respondent was in fact charged with negligence, as a fourth offence. The Code of Conduct, however, confines the offence to the company premises. In its findings, the Disciplinary Committee held that:

“Since the incident did not happen at work or during the execution of his duties, the accused was given the benefit of doubt on the fourth charge and it was set aside.”

This charge is framed in section 3.6 of the Code of Conduct as follows:

“Negligence or responsibility for a wrongful act or omission that causes accidents, injury or death at work.” (emphasis added)

This limitation to the workplace was the basis of the exemption from liability for negligence.  On the facts of the matter, this was the most appropriate charge to be preferred against the respondent. This was in fact what was proved by the established facts. It could however, not hold because of the restrictive requirement that the negligent acts be committed at work. There is a serious lacuna in the Code of Conduct.

The court cannot substitute the conviction on “wilfulness” with that of “negligence”, in the light of the acquittal. In the Astra Industries Limited case, supra, the court was able to substitute with a verdict of guilty of negligence because the record showed that the respondent had admitted to having been negligent. In the instant case, the appellant was acquitted. There was no cross appeal against the acquittal. It would be improper for this court to substitute an acquittal, which has not been appealed against, with a verdict of guilty of negligence.

It is up to the appellant to attend to the grave omission in its Code of Conduct, if it considers it necessary to do so.

In the circumstances, the conviction on the offences requiring intention cannot stand. It is accordingly ordered that:

The appeal be and is hereby allowed with costs.

The decision of the Respondent’s Appeals Committee be and is hereby set aside.

The appellant be and is hereby reinstated without loss of salary and benefits from the date of dismissal.

If reinstatement is no longer tenable, the respondent shall pay the appellant damages for loss of employment in lieu of reinstatement. The damages shall be agreed upon by the parties, failing which either party shall approach the court for quantification of the damages.

Matsikidze & Mucheche, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners