Tererai Louis Mutasa v ZESA Enterprises (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/109/21
HELD AT HARARE 20 May 2021
CASE NO
JUDGMENT NO LC/H/109/21
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/109/21

HELD AT HARARE 20 May 2021				CASE NO LC/H/59/20

& 30 July 2021

In the matter between:

Tererai Louis Mutasa					Appellant

And

ZESA Enterprises (Private) Limited			Respondent

Before The Honourable Murasi, J

For Appellant			Mr. B. Magogo

For Respondent			Mrs. R. Matsika

MURASI J:

Background

Appellant was employed by Respondent as its Managing Director. During the course of its business, Respondent entered to into a contract with a company styled PME Power Solutions (India) Ltd referred to as PME. The contract was for the design, supply of equipment, construction and commissioning of five (5) 33/11 KVA substations. An external audit carried out showed that there were irregular payments that had been done. Disciplinary action was recommended against the Appellant.

Appellant was subsequently charged with nine counts of contravening section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006. He was brought before a Disciplinary Authority which found him guilty on Counts One and Three and acquitted him on the rest of the charges. This conviction culminated in his dismissal. Appellant is dissatisfied with the result and has approached this Court for relief.

Appellant’s grounds of appeal are as follows:

The Disciplinary Authority (‘the Authority’) erred in dismissing the objection relating to the legal standing of the Respondent’s sole witness to represent Respondent in the absence of credible evidence as regards a resolution of the Respondent’s board to haul Appellant for a disciplinary hearing.

The authority erred in finding, contrary to evidence suggesting that PME had already made delivery of material and commenced construction of substations, that Appellant made an advance payment of US$9.5 million.

The Authority erred in ignoring evidence led to the effect that the US$9.5 million payment was made in respect of five and not just two substations. A fortiori, the Authority misdirected itself in various ways, to wit;

In having regard to two impugned pro-forma invoices for Mufakose and Glen Norah without making a ruling on their authenticity and without verifying the fact of their existence at the time of payment.

In disregarding abundant evidence that materials for the five substations was being delivered simultaneously and the construction thereof happening contemporaneously.

In disregarding evidence of the contemporaneous commissioning of the substations.

In giving no due weight to the fact that there was no evidence of a pre-payment duly recorded in both the 2011 Financial Statements and the relevant annual external audit report of the Respondent’s books.

In failing to find, in keeping with the evidence tendered, that the Respondent suffered no prejudice as a consequence of the payment of the US$9.5 million.

The Authority erred in failing to find, just as he did on the US$1000 sponsorship to the Zimbabwe Psychological Association that the employee had no hand in the authorisation of the sponsorship to the ZRP totalling US$300.

Even assuming without conceding that the employee authorised the said sponsorships and/or donations, the Authority erred in failing to find that the said donations were envisaged in the organisation’s newly crafted marketing policy.

As regards the penalty, the Authority paid lip service to the totality of the mitigatory circumstances raised by the Appellant, inter alia, the insignificant amount donated to ZRP, not as a bribe but as corporate sponsorship support, the absence of prejudice to the company as a consequence; the ZESA Holdings interventions and operating practice coupled with ministerial directives which the Appellant had no power to override or ignore. In settling for dismissal, the Authority grossly misdirected itself in the exercise of discretion such that no reasonable tribunal could have arrived at such a decision.

At the commencement of the oral submissions, Mr. Magogo informed the Court that Appellant was abandoning the first ground of appeal.

Appellant’s Submissions

The Court will proceed to give a summary of Appellant’s submissions as contained in the heads of argument and those made by Appellant’s Counsel.

It was submitted that the finding by the Disciplinary Authority that the payment of US$9.5 million was an advance payment was a gross misdirection. It was stated that in terms of the five contracts signed on 26 November 2010, payment terms were outlined in Clause 9 thereof. The US$9.5 million was paid well after goods in excess of US$22 million had been delivered. It was contended that it therefore could not be an advance payment as it amounted to an arrear payment. Mr. Magogo pointed to the email from PME directed to the Appellant and the letter from PME directed to the Group Chief Executive Officer. He also referred to the minutes of the Respondent’s Board which had deliberated on the CBZ facility amounting to US$18 million in which it was stated that US$12 million was available. He therefore argued that at the time the payment was made and taking into account the goods that had been delivered, the Disciplinary Authority was in error to categorise it as an advance payment.

In respect of the third ground of appeal, it was submitted by Mr. Magogo that the Appellant challenges the finding that the US$9.5 million was made in respect of two (2) of the five (5) substations. It was further submitted that though the date of the invoices was the same date when payment was made, the payments were not for those invoices and the invoices did not trigger the payments. It was averred that it was a coincidence that the invoices on pages 912 and 913 of the record tallied with the amount that was paid to PME on 10 June 2011. Mr. Magogo further argued that the invoices could have been put there when the audit was being done to make the issues ‘stick’ as there was nothing on those invoices which showed who had received them. Asked by the Court whether Appellant disputed the fact that the invoices came from PME, Mr. Magogo replied that this was not disputed. It was further stated that the Disciplinary Authority had not made a finding on the issue of the invoices which had been brought to his attention.

Mr. Magogo submitted that the five (5) substations were commissioned contemporaneously and it therefore could not be stated that Respondent would pay for two (2) out of the five (5) substations. It was averred that the manner in which the payments were made does not violate the provisions of the Public Finance Management Act (PFMA).

As far as the fourth ground of appeal was concerned, it was argued that Appellant had not authorised the payment of the donations. It was further stated that these were negligible amounts relating to ‘petty cash’ and this was termed as Marketing Expenditure and it was a justifiable expenditure which bore fruit for the Respondent.

As far as the penalty was concerned, it was submitted that the exercise of discretion was a gross misdirection. This was due the fact that the Board had become aware of the payments long back and no disciplinary proceedings had been brought against the Appellant. Mr. Magogo also stated that the absence of prejudice arising from the payment of the US$9.5 million should have militated against dismissing the Appellant. This was due to the fact that when the payment was made, Respondent was still indebted to PME. It was also argued that the payment was made on the instruction of the Group Chief Executive Officer coupled with the deliberations of Respondent’s Board

Appellant’s Counsel filed very detailed heads of argument. Paragraphs 12.4 and 12.5 relate to issues which were not raised by Mr. Magogo in oral submissions. It is averred that the Disciplinary Authority having pointed out that ‘the payment was not done by the employee’, it should have proceeded to find the Appellant not guilty. The heads of argument also seek to distinguish what is a ‘down payment’ as opposed to an ‘advance payment’. It was suggested in paragraph 12.21 that:

“That is why PME were understandably demanding a full payment. The failure itself to pay before delivery was a breach of the contract actionable by PME.”

Most of the issues raised in the heads of argument were addressed in the oral submissions and several cases were cited to support of the contentions made by Appellant’s Counsel.

Respondent’s Submissions

In response, Mrs. Matsika stated that Appellant’s misconduct arose from the irregular payment made which was inconsistent with the provisions of section 45 of PFMA and Appellant’s express duties as outlined in his job description. She further stated that when his conduct was measured against the above, Appellant came short of the standard required of him. The payments were thus irregular. Mrs. Matsika submitted that when regard was had to the payment terms of the contracts with PME, it was clear that the payment was not in accordance with the provision that Respondent was supposed to pay 60% as provided in Clause 9 of the contract. It was further contended that the contract did not give a date on which the payment was to be made and therefore one could not speak of a breach of that contract. Mrs. Matsika further argued that the suggestion that material worth US$22 million had been supplied which necessitated the payment did not arise when the whole contract was considered because the contract was not only for the supply of materials as the contract stipulated that it for the ‘design, supply of equipment, construction and commissioning of 33 kva substations.’ Therefore, it was further argued, the obligation to make a down payment could not be linked to the supply of the materials as the contract went beyond that.

Mrs. Matsika also referred to the extract of the interview between Appellant and the auditors and stated that Appellant did not deny the fact that the payment was in respect of the Mufakose and Glen Norah substations and that the payment placed Respondent ‘beyond the contract terms’. She pointed out that this was an admission that there was an irregularity in the payment. Mrs. Matsika stated that the fact that PME had requested for payment of 100% of the contract was not contractual and the Appellant was clearly aware of the position. She also stated that the instruction from Mr. Chifamba that Appellant should utilise the CBZ facility did not assist the Appellant. This was because the instruction did not make reference to the contractual terms and it did not specify a figure.

As far as the documents showing the payments were concerned, Mrs. Matsika stated that there was a clear nexus showing the cheque requisition, the amount, the invoices from PME and that there were no gaps in the information supplied. She further stated that it was far-fetched to suggest that PME, the Respondent and the auditors had connived to create these documents in order to sustain charges against the Appellant. The purpose for so-doing had not been given by the Appellant. She argued that Appellant was on fixed term contract and it was easier to pay him off for the unexpired contract rather than proceed to create charges against him. In this light, it was argued, the findings of the Disciplinary Authority was reasonable in the circumstances.

Mrs. Matsika submitted that the fact that the substations were commissioned contemporaneously was irrelevant as this took place years after the payment. She also stated that the fact that the payments were not reflected in Respondent’s books was also irrelevant and the Disciplinary Authority was correct to ignore that fact. Mrs. Matsika pointed out that Appellant had argued that there had been no prejudice to the Respondent, but the issue was the irregularity of the payment which was not in terms of the contract with PME and Appellant’s failure to act in terms of section 45 of the PFMA. It was further pointed out that by paying monies in excess of the 60%, Respondent had incurred expenditure which was not due in terms of the contract and it was immaterial that PME could have been owed more money.

As far as the charges in respect of the donations were concerned, Mrs. Matsika submitted that these were clearly outside the provisions of the Admin Note and that Appellant admits that this was outside those provisions as shown on page 877 of the record. She further stated that Appellant’s contentions in the present hearing that he was not involved were clearly not in sinc with his closing submissions before the Disciplinary Authority. She referred to page 806 of the record where she pointed out that Appellant had stated that he had approved the donations in his capacity as the Managing Director of the Respondent. Mrs. Matsika submitted that Appellant was clearly making inconsistent statements in this regard. The donation, argued Mrs. Matsika was outside the parameters of the Admin Note.

Mrs. Matsika submitted that both parties were agreed that the issue of the appropriate penalty was discretionary and could only be interfered with where there was evidence that it was grossly unreasonable. She stated that Appellant was a Managing Director who was bound by statute to safeguard public funds and avoid irregular expenditure and his contract of employment required of him to exercise financial control and discipline. It was further argued that Appellant had fiduciary duties not only to the Respondent but to the public as Respondent was a public entity. Mrs. Matsika also stated that Appellant could not seek to rely on obedience to instructions as those instructions did not give him a specific figure to pay and he exercised his discretion in the amount finally paid to PME. Further, it was stated that Appellant could have resisted the instructions as provided in section 14 of PFMA. To this end, Mrs. Matsika submitted that the actions of the Appellant called for dismissal and the Disciplinary Authority was correct in arriving at that decision.

Respondent’s Counsel also filed detailed heads of argument. Paragraphs 33 and 34 bring to the Court’s attention the fact Appellant is arguing in the heads of argument that he was not involved when it was not raised in the pleadings. Paragraphs 55 to 57 are devoted to the issue whether this was an ‘advance payment’ or a ‘down payment’ and is concluded by stating that the argument by Appellant is a futile exercise. In paragraph 63 of the Respondent’s heads of argument, it is argued that since it was the Appellant who was doubting the authenticity of the invoices from PME, he had the ‘reverse onus’ to show that they indeed were not genuine invoices. Most of the issues contained in the heads of argument were covered in oral submissions. Several decided cases were cited in support of the contentions made.

The Law

It is trite that an appellate court can only interfer with the lower court’s exercise of judicial discretion on limited grounds. A lower court’s exercise of discretion can only be interfered with in exceptional cases where it has been exercised in an unreasonable manner. Both parties refer to a long list of decided cases in this respect. In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at p 670, KORSAH JA remarked:

“The general rule of the law as regards irrationality, is that an appellate court will not interfer with a decision of a trial court based on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its 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.”

In Susan Rich v Jack Rich SC 16/01, EBRAHIM JA cited with approval the remarks in Hoffman and Zeffert: The South African Law of Evidence, 4th ed, at p 489, that:

“There are no rules of law which define circumstances in which a finding of fact may be reversed, but as a matter of common sense the appellate court must recognise that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanour of the witnesses, and the courts of appeal are therefore very reluctant to disturb findings which depend upon credibility. The appeal court has rather more latitude in criticising the reasons which the court a quo has given for its decision. The reasons given for accepting certain evidence may be unsatisfactory, e.g. they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, e.g. a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact. Where there has been no misdirection of fact by the trial court, the appeal court will only reverse it when it is convinced that it is wrong.”

In other words, an appellate court will usually interfer with the findings of fact where there is evidence that the court a quo failed to take some matters into consideration, that it failed to give weight to certain issues or gave little weight to relevant issues or was influenced by extraneous issues or that the decision arrived at was plainly wrong.

Analysis of the facts and evidence

I will begin with an issue raised by Appellant in paragraphs 12.4 to 12.6 of the heads of argument which should not detain the Court. As pointed out in Respondent’s heads of argument, this issue is being raised for the first time in the heads of argument. It was not part of the pleadings. In fact, Mr. Magogo did not address it in oral argument. Further, a reading of that passage shows that it was taken out of context as it referred to submissions made by Mr. Magogo before the Disciplinary Authority. In Cargill Zimbabwe v Culvenham Trading (Pvt) Ltd 2006 (1) ZLR 381 (H), it was held that:

“.. Counsel cannot plead on behalf of the parties. It is trite that heads of argument are counsel’s conclusions and opinion of the facts and law applicable to the facts of the matter. They are not part of the pleadings.”

The issue should have been properly pleaded in the grounds of appeal. This Court will therefore not proceed to consider the submission.

A reading of Appellant’s second and third grounds of appeal shows that they, even though separated, deal with the issue of the payment of the US$9.5 million. I will proceed to combine and deal with them at same time.

It is common cause that US$9.5 million was paid to PME on 10 June 2011. It is not disputed that a cheque requisition was made in making the payment. Appellant takes issue with certain factual findings in this matter. The first issue is that the Disciplinary Authority made a finding that Appellant had made the ‘advance payment’ contrary to the evidence there was delivery of material and construction had commenced in respect of the substations. The second issue is that the Disciplinary Authority made a finding that the payment was in respect of two substations instead of the five substations. In this regard, it was averred that the Disciplinary Authority should not have had regard to ‘impugned pro-forma invoices’ whose authenticity should have been ruled upon by the Disciplinary Authority. It was also averred that there was a simultaneous construction of the five substations and their commissioning which issues were ignored by the Disciplinary Authority. The last two items in the second and third grounds of appeal deal with the absence of the transaction from the 2011 financial statements of the Respondent and that Respondent had not suffered any prejudice by the payment of the US$9.5 million.

The Charge

In relation to the second and third grounds of appeal, the following charge was preferred against the Appellant:

“You acted contrary to the provisions of the contract between ZENT and PME by making an advance payment of US$9, 500, 000.00. In terms of the parties’ contract, ZENT’s obligation for an advance payment was capped at 60% of the contract sum which was US$5, 243,600.00. The difference between the authorised payment and the payment was unauthorised, that is, US$4, 256, 400.00, is therefore irregular expenditure and was made in contravention of the financial control systems set in place by ZENT thereby breaching your obligations under section 45 (b) and (c) of the Public Finance Management Act, (Chapter 22:19)(PFMA)

Reference was made in charge to the contract between the Respondent and PME. The relevant clause dealing with the issue of payment is Clause 9. The Clause gives the figures that were to be paid at different stages. It is pertinent to reproduce it. It provides thus:

“PAYMENT TERMS

The Employer shall pay the Contractor as follows:

Down payment			60%

Before commissioning		20%

After commissioning			20%

Retention (one year)			Corporate guarantee from PME”

A reading of the above Clause shows that it does not give actual dates as to when the monies were to be paid. There were five (5) substations with similar contracts and similar contractual monetary figures. Each substation had a cost of US$5 243 600.00. A simple computation would show that Respondent was required to pay 60% of the total cost of the five substations as provided in the contract. The courts do not, in interpreting contracts, go outside the provisions made by the parties themselves. This is trite. As is aptly cautioned by Christie: The Law of Contract in South Africa (5 ed.) at p. 366:

“The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned. It is unthinkable that the courts should not only tell the parties what they ought to have done but then make them do it by enforcing the court’s idea of what the contract ought to have been.”

Appellant was charged with irregularly making a payment which was not in terms of the contract existing between Respondent and PME. That the payment was not in terms of the contract was conceded by Appellant in oral submissions. The following is pertinent;

“Court: Was the US$9.5 million 60% of the contract?

A: No it did not constitute 60%”

Appellant’s Counsel went further to add the following explanation:

“When payment was made, it was not an advance payment, the intention of the parties was to have 60% paid in advance because Respondent was out of funds”

And further:

“It was not in terms of the contract. It was an arrear payment”

“The invoices did not trigger the payments”

And later in the oral submissions:

“It is a coincidence that the invoices on pages 912 and 913 tally with the amount that was paid to PME on 10 June 2011. These invoices could have been put in there when the audit was done to make the issues stick.”

The Court further sought clarification in the following discourse:

“Court: You don’t dispute that the invoices came from PME?

A: We don’t dispute that.”

It is a truism that a formal admission made cannot be ignored by the court before whom it is made. Unless withdrawn, it prevents the leading of further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted. It is also correct that where an admission is not withdrawn, it becomes binding on the court and on its face and no proof is further required to prove the issue. See Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12.

The above responses from Appellant resolve certain issues raised by the Appellant in the appeal. Firstly, it was averred that the Disciplinary Authority should have ruled on the authenticity of the invoices. The above answers show that Appellant does not doubt that authenticity as Mr. Magogo conceded that he does not dispute that they came from PME. The second issue that is resolved is that Appellant makes the concession that the payment was not in accordance with the contract. This is the first rung of the charge preferred by the Respondent that Appellant made a payment which was not in accordance with the contract entered into by Respondent and PME.

Appellant explains that this was an arrear payment and not a ‘down payment’ or ‘advance payment’. In this regard, Appellant went to great lengths to distinguish between a ‘down payment’ and ‘an advance payment’. However, what is clear from the responses by Mr. Magogo is that according to Appellant, the payment did not fall into any of the categories. Appellant stated that it was an arrear payment. This did not fall within the ambit of the contract. It is my view that the attempt to make a distinction between the two does not assist the Appellant when he finally states that the payment does not fall into any of the two categories. Further, the fact that PME started delivering the material before any ‘down payment’ was made by the Respondent defeats the attempt by Appellant’s Counsel to distinguish ‘advance payment’ and ‘down payment’ in both oral submissions and the heads of argument.

I will now deal with Appellant’s explanation as regards the payment of the US$9.5 million. It is averred that there was an instruction from the Group Chief Executive Officer. A reading of the emails shows that the Group Chief Executive Officer was unhappy with the manner in which the payments were being handled. He instructed that the CBZ facility be utilised for the purpose. He did not give a figure. He did not refer to the terms of the contract. Secondly, Appellant also refers to the Respondent’s Board minutes. The minutes show that an amount of US$18 million was initially touted. The figure came down to US$12 million as being available for the payment. The evidence shows that the whole US$12 million said to be available was not paid. If the defence is that Respondent owed PME a huge amount for the materials supplied, surely the whole US$12 million would have been paid to PME. What the evidence shows is that there was no immediate instruction to pay US$9.5 million.

The Court sought clarification on the above issue from Appellant’s Counsel in the following manner:

“Court: The discretion was his on the figure?

A: To some extent- CBZ had 12 million available for disbursing.”

The response clearly shows that Appellant had a discretion on the figure he was supposed to disburse. Appellant was also aware of the existence of the contract between Respondent and PME. It was also averred that PME had requested that it be paid 100% of the contractual price. This was evidently not in accordance with the contract signed between the parties and the Appellant was not duty bound to accede to the request having regard to his fiduciary duty to the Respondent. The payment disregarded the CBZ facility and the contract between the parties. Appellant’s explanation in this regard was not convincing. It was also stated that Respondent was in breach of the contract. The evidence shows that this does not arise as correctly observed by Respondent’s Counsel. This is because the contract was a “Design, Supply of Equipment, Construction and Commissioning” of substations. The figures given in the contracts were for the entire work to be done. What Appellant is trying to put forward is the fact that because the Contractor had supplied materials worth about US$22 million, therefore the Respondent was in breach. This is not according to the contract signed between the parties. Respondent’s Counsel also referred to an extract of Appellant’s interview with the auditors where he made the concession that the payment ‘placed the Respondent beyond the contract terms’. In my view, this was a clear admission that the payment was an irregular one.

I have referred above to Appellant’s Counsel’s responses to the Court’s requests for clarifications on certain issues. He indicated that the fact that the date of the payment tallies with the date shown on the invoices from PME was a mere ‘coincidence’. The record shows that the invoices have a total amount ‘coinciding’ with the amount paid out to PME on that date. These invoices are in respect of the Mufakose and Glen Norah substations. This is the extent of the ‘coincidence’ given by the Appellant in the hearing before the Disciplinary Authority. How coincidental was it that PME would issue invoices for the Mufakose and Glen Norah substations which tallied with the amount paid to them?

A reading of the record at page 911 shows that an application was made on 10 June 2011 to the Manager at CBZ for the transfer of US$9.5 million. The following details were captured in that application:

“Beneficiary;

Account Name	: PME Transformers (INDIA) Ltd

Account Number	: 608181

Bank			: Chinatrust Commercial Bank, New Delhi India

Swift Code		: CTCBINDD

Routing Number	: 3582051634001”

When one reads the invoice submitted by PME which appears at page 912 of the record, it is noticeable that the information supplied under the heading ‘For Credit to’ is the same information that is in the application above made for the transfer of the amount in question. This is one of the invoices which Appellant states was placed there in order to make the charge ‘stick’. The coincidence, in my view, seems too coincidental.

In the same submissions, Appellant’s Counsel makes the averment that these invoices were put in there to have the charges against the Appellant ‘stick’. Having conceded that the invoices came from PME, it would appear that the averment is that PME, Respondent and the auditors ‘connived’ to have the invoices placed there in order to have these charges preferred against the Appellant. I have considerable difficulty with this submission having regard to the fact Appellant relies on the fact that PME had indeed requested that they be paid 100% of the contract price. Why and how would they collude with Respondent in that respect? As stated by the Respondent’s Counsel, if Respondent wanted to get rid of Appellant, the latter was on a fixed term contract and it was easier to pay him for the unexpired term of the contract instead of preferring charges against him. I am not persuaded that the Disciplinary Authority misdirected itself in rejecting such averments.

Appellant has averred that the Disciplinary Authority did not have regard to the fact that the construction of the substations was being conducted contemporaneously. This does not assist the Appellant as it does not sanitise the payment that was made irregularly. Similarly the fact that the substations were commissioned at the same time is a non-event, and as pointed out by Respondent’s Counsel, this occurred years after the payment was made. The other issue raised was that the payment did not appear in Respondent’s Financial Statements for the year 2011. I do not see how this would help ‘regularise’ the payment. It is irrelevant to the determination of the issue of whether the Appellant made an irregular payment.

Elsewhere in this judgment I reproduced the charge that was preferred against the appellant. In that charge, Appellant was said to have breached ‘obligations under section 45 (b) and (c) of the Public Finance Management Act, (Chapter 22:19). I note that Appellant’s Counsel does not deal with the statutory contravention in the charge in both oral submissions and heads of argument save for a bold statement that he did not contravene the provision. The Act enjoins persons in Appellant’s position to ensure that the system of financial management and internal control established for a public entity is implemented. In this regard Appellant was enjoined to ensure that contracts entered into by Respondent were adhered to and the financial aspects provided in that contract were religiously followed. That was the essence of the charge preferred against the Appellant.

The question that arises is whether the Disciplinary Authority was wrong in returning a verdict of guilty on the charge preferred against the Appellant? Having gone through the evidence, it is my view that it cannot be said that the Disciplinary Authority misdirected itself. What I note is that Appellant sought to have the Court arrive at a different conclusion on the same facts. That is not the duty of an appellate court. An appellate court should analyse the evidence and determine whether a reasonable tribunal would have arrived at the same conclusion on the same facts. I therefore find no merit in the second and third grounds of appeal.

I will now turn to the third and fourth grounds of appeal. These should not detain the court. The essence of the charge was that ‘the donations were in breach of section 45 (c) of the PFMA as they were in contravention of ZENT’s policy on donations’. The record shows that the policy on donations was governed by the Admin Note which specifically showed in what circumstances the donations could be made. The donation to the ZRP was found not to fall into the category permitted by the Admin Note.

The third ground of appeal avers that Appellant ‘had no hand in the authorisation of the sponsorship to ZRP totalling US$300.’ This is a classic example of an inconsistent narration of events by the Appellant. In the tribunal a quo, Appellant stated that the donations were justified. In the closing submissions, as correctly pointed to by Respondent’s Counsel, Appellant made the insistence that:

“The Employee’s evidence herein was emphatic that these were sponsorships which he properly approved as Managing Director.”

The above shows that this was an admission made by the Appellant. The Court has elsewhere in the judgment referred to the issue of admissions and will not repeat the same. Appellant is clearly blowing ‘hot and cold’ in this ground of appeal. It appears to be a fishing expedition. The ground of appeal should be dismissed.

The fifth ground of appeal avers that the ‘Authority erred in failing to find that the said donations were envisaged in the organisation’s ‘newly crafted marketing policy’. What is clear about this ground of appeal is that it is not argued that it was according to the Admin Note which governed the issue of donations. The Respondent’s evidence was that all donations had to be made in terms of the Admin Note. It is not argued by the Appellant that the Admin Note was irrelevant when donations were considered for approval. Instead, Appellant seeks refuge in what he terms ‘a newly crafted marketing policy.’ I am of the firm view that the finding that the donation was not in terms of the prescribed Admin Note was correct as there is no evidence that the ‘newly crafted marketing policy’ had replaced the Admin Note. The ground of appeal ought to be dismissed.

The last ground of appeal deals with the issue of penalty. Both parties are agreed that the issue revolves around the issue of the employer’s discretion. It is trite that an appellate court can interfer with that discretion where there is evidence that the discretion was exercised unreasonably. The ground of appeal avers that the ‘Authority paid lip service to the totality of the mitigatory circumstances raised by Appellant, inter alia, the insignificant amount donated to ZRP, not as a bribe but as corporate sponsorship support, the absence of prejudice to the company as a consequence; the ZESA Holdings interventions and operating practice coupled with ministerial directives which the Appellant had no power to override or ignore.’

As far as the issue of the insignificance of amount is concerned, the Chimwala case clearly held that the value lost to an employer was not the determining factor. If the employer took an adverse view of the misconduct, then that employer was entitled to dismiss the employee. The same also goes to deal with the issue of prejudice. What should be considered in determining an appropriate penalty is the degree of non-compliance with existing instructions. Put differently, an employee should be judged by the extent of the degree of his/her omissions or commissions.

As far as interventions by external forces is concerned, the record and evidence shows that the Group Chief Executive Officer gave instructions to Appellant to utilise the CBZ facility. He did not refer to the contract between Respondent and PME. However, Appellant did not fully utilise the CBZ facility and used ‘his discretion’ to pay out the figure in question. There is no evidence that Appellant was directly influenced by ‘ministerial directives’. Precedent has shown that an employee has to show that the nature of his/her misconduct was so inadvertent, so aberrant or otherwise so excusable that the remedy of summary dismissal was not warranted. See Murawo v Grain Marketing Board SC 27/09. It is my view that Appellant has not demonstrated that the Disciplinary Authority misdirected itself in meting out a penalty of dismissal in the circumstances. Appellant was the Managing Director of Respondent. He was aware of the existing contracts with PME and their provisions. He admits that the payment made to PME was not in terms of the contracts. The payment involved a process as shown by the documents filed of record. This means that there was a conscious effort to complete the transaction despite the fact that it did not comply with the provisions of the contract. The same applies to the donation made to ZRP. Appellant knew of the existence of the Admin Note but proceeded to disregard it in contravention of the provisions of the PFMA and the standing instruction. It is thus my view that there was no misdirection on the part of the Disciplinary Authority in dismissing the Appellant from employment. The ground of appeal should accordingly be dismissed.

In the circumstances, I am of the view that the appeal lacks merit and ought to be dismissed. Costs should follow the cause.

In the result, the appeal be and hereby dismissed and Appellant is to meet Respondent’s costs.

Makuwaza and Magogo Attorneys-		Appellant’s legal practitioners

Wintertons-					Respondent’s legal practitioners