Timothy Majena v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LCH/169/23
HARARE, 16 MARCH, 2023 CASE NO. LC/H/867/22 AND
16 JUNE, 2023
In the matter between:-
Timothy Majena Appellant
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LCH/169/23
HARARE, 16 MARCH, 2023 CASE NO. LC/H/867/22 AND
16 JUNE, 2023

In the matter between:-

Timothy Majena
Appellant
Versus

City of Harare
Respondent

Before The Honourable L. Hove, Judge:

For Appellant : Mr. J Mambara
For Respondent : Mr. A. Moyo

HOVE J:

The appellant was employed by the respondent. He was charged with misconduct, found guilty and dismissed. In these proceedings, he appeals against both conviction and sentence.

The background

The appellant who was employed as a senior Land surveyor by the respondent was alleged to have fraudulently added on layout plan number TPF|ER|14|16 two additional stands. Layout plan reference number TPF|ER|14|16 is an unapproved proposed subdivision of remainder of 137 midlands township waterfalls which was allocated to 15 beneficiaries in 2019. Employees from the Department of works which included Timothy Majena and two of his colleagues colluded with one Rusinamhodzi and created a layout with 17 stands and sold one of the stands to one Madondo for USD $19000. The appellant was as a result, charged with misconduct. He was convicted and dismissed. He appealed against such conviction and sentence to this court. His grounds of appeal are 5 and they are that;

Grounds of appeal

1. The Disciplinary Committee grossly erred when it found the appellant guilty when there was no evidence to support;

   a) That the appellant generated a layout plan with 17 stands.
   b) That he uttered it to Austin Tapiwanashe.
   c) That he instructed a Mr Mkuna to carry out a survey of the plan with 17 stands

2. The disciplinary committee misdirected itself by totally disregarding or not putting weight to the evidence of Mr Nyabezzi, Mr Bawa and Ms Kashangura when clearly their evidence exonerated the appellant and also gave clear guidance on how a plan is generated, how it is entered into a register and what happens after numbering.

3. The Disciplinary Committee grossly erred when it accepted the evidence of Mr Madondo and Austin Tapiwanashe at face value without any supporting documents like the site plan which would have shown the author of such documents and without exercising caution on the evidence of Austin Tapiwanashe.

4. The Disciplinary Committee erred and misdirected itself on the issue of the appellant’s signature on the layout plan when it was clear that in the absence of the plan on the tracing paper, the issue of the signature would not be resolved.


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5. The penalty meted is so excessive in the circumstances and it completely negates the submissions in mitigation.

The respondent opposed the appeal and argued in limine that the grounds of appeal raised by the appellant are directed against factual findings made by the disciplinary committee and are therefore invalid. It was submitted and argued that appeals to the Labour Court lie only on points of Law. It was argued further that an appeal court will not interfere with factual findings made by a tribunal of first instance unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion. The grounds of appeal do not allege gross unreasonableness in the findings by the tribunal a quo. It was thus submitted that on this basis alone, the grounds of appeal ought to be struck off.

During the hearing, the Respondent abandoned the preliminary point, preferring to deal with the matter on the merits.

The court will thus consider the grounds of appeal ad seriatim.

**Ground of appeal No 1**

The appellant alleges that there was no evidence to support a finding of guilty. The Respondent argued in turn that the appellant’s signature was affixed on the layout plan. The appellant did not deny that the signature on the fraudulent layout plan was his. On the basis of that evidence, the tribunal aquo made a finding on a balance of probabilities that the appellant had signed the fraudulent act. The appellant’s evidence on the issue of the signature was not accepted by the tribunal aquo. They found instead that the appellant had himself probably affixed his signature.

It is trite that in general, in finding facts and making inferences in a civil case, the court may go on a mere preponderance of probability, although in so doing, it does not exclude every reasonable doubt. See in this regard the case of **Ebrahim V Pittman NO 1995 (1) ZLR 184**.


It is only in criminal cases, where every fact material to establish the guilt of an accused must, unless it is admitted, be established by proof beyond reasonabledoubt and inferences from facts must be such as to leave no reasonable doubt of their propriety and correctness.

In **Govan V Skidmore 1952 (1) SA 732** the court stated that in civil cases one may, by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion, from amongst several conceivable ones, even though that conclusion be not the only reasonable one.

The tribunal aquo was thus within its rights to come to a conclusion which appeared to it more plausible even though there were other possible explanations.

**Ground of appeal No 2**

The tribunal aquo considered the evidence of Nyabezzi, Bowa and Kashangura. The tribunal did not believe that that evidence exonerated the appellant. The tribunal considered the totality of the evidence before it and again by balancing probabilities came to the conclusion that the appellant had committed the offence. The tribunal aquo was dealing with a Labour dispute and the standard of proof in Labour matters as in all civil matters, is on a balance of probabilities. See in this regard the case **of ZESA V DERA 1998 (1) ZLR 500**.

**Ground of appeal No 3**

The standard of proof is on a balance of probabilities. In **CAPS Holdings V Chikwavira SC 73|99** the court affirmed the principle that the standard of proof is much lower than that in criminal cases where every material fact must be proved beyond reasonable doubt. The tribunal aquo, may by balancing probabilities, make a finding that seems to it most probable. The tribunal was entitled to accept that evidence which, in its opinion, was more plausible.

**Ground of appeal No 4**

This ground of appeal, like all 3 before it, is without merit. There was no need to decide the issue of the signature to the exclusion of every other reasonable explanation as stated earlier, the tribunal was well within its rights to select a conclusion which seemed to be the more natural and plausible one from amongst several conceivable ones even though that conclusion be not the only reasonable one. In any event the appellant did not deny that it was his signature on the fraudulent plan.

In Lewend Enterprises Private Limited V Freight Africa Logistics HH 6 53|15 the court stated that

“The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of Justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiffs’ claims against the defendant’s defense. It necessitates a decision of which of their versions of events is more likely to be true. In other words which version is more believable or most likely to have transpired than the other? It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiffs’ version being the correct one as opposed to the defendant’s or vice versa. In making this determination, we look at the pleadings, at the documentary evidence at what the parties’ representatives said and did when they were in the witness stand, and finally at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.”

It is clear therefore that the tribunal aquo did not err or misdirect itself in rejecting the appellant’s version of what transpired. It did not seem more probable to them.

Ground of appeal No 5

The law is settled as regards what penalty is to be imposed after an employee has been found guilty of Acts of misconduct.

This issue of sentence is entirely in the employer’s discretion and once an employer is of the view that a serious act of misconduct has been committed, one which goes to the root of the contract of employment, it can dismiss the employee. It will then be entirely up to the employee to show that the misconduct was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of dismissal was not warranted. Tobacco Sales
 Floors v Chimwala 1987 (2) ZLR (S), the appellant did not show why it was of the opinion that the penalty was not warranted. It failed to prove its position that the penalty was not warranted. There is therefore no basis for this court to interfere with the sentence imposed.

In the result, I find there is no merit in the appeal and make the following order;

**Order:**

1. The appeal be and is hereby, dismissed.
2. Each party bear its own costs.
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