Tsigai Mutegude V UMP Zvataida Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/29/2020
HARARE, 26 NOVEMBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/29/2020

HARARE, 26 NOVEMBER 2019		           	CASE NO. LC/H/707/15

AND 31 JANUARY 2020

In the matter between:-

TSIGAI MUTEGUDE						Appellant

And

UMP ZVATAIDA RURAL DISTRICT COUNCIL		Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr T. Nyamucherera (Legal Practitioner)

For Respondent		Mr P. Seda (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of the Appeals Committee that was handed down on 17 July 2015.  The Appeals Committee upheld the decision of Disciplinary Committee to dismiss the Appellant from employment.

The brief facts of the matter are that,

The Appellant was employed as a bookkeeper by the Respondent.

He was suspended from employment on the 2nd of June 2015 on allegations of contravening paragraph 7.5.6 of the Respondent’s Code of Conduct as read with paragraph 10.4.1. The charge states that;

“An employee falsifies and alters a document if he or she has any record or document which intentionally makes false statements.  This is a crime it amounts to fraud.”

It was alleged that the Appellant created a document and falsified a record to make it appear as if he had handed over USD 700-00 to his workmate Mr Chisaka when in fact he had not handed over any monies.

It is alleged that the forgery was an attempt to cover up the shortfall of USD 685-00 that had been discovered by the Respondent’s internal auditor. The Appellant had been given an amount of USD2 385-00 by the Respondent. He properly administered the USD1 700-00 but he failed to account for the balance of USD685-00. The amount was only reimbursed ten (10) months later after an audit report.

A disciplinary hearing was conducted and the Appellant was found guilty and dismissed from employment. He appealed to the Chief Executive Officer who upheld the decision of the Disciplinary Committee.

The Appellant has now filed an appeal to this court on the following grounds,

The Appeals Committee unreasonably erred by convicting the Appellant when in fact they grossly failed to prove the essential elements of the charge which they charged the Appellant of. The charge is just plucked from the air as it does not relate to any money that Respondent gave to the Appellant.

The Appeals Committee fundamentally erred at law in finding the Appellant guilty of the misconduct without adducing any aota of evidence to that effect.

The Appeals Committee grossly erred by convicting the Appellant of the charge without proving that the Council suffered any prejudice to that effect.

The Committee grossly erred in dismissing the Appellant without considering the mitigating factors and the prejudice suffered by the Council.

The Respondent in response argued that the Appellant was properly convicted of forgery and he admitted to this charge. The charge was also well grounded and clearly presented.

It is common cause that,

Appellant was given US$2 385-00 to administer.

$1 700-00 was administered.

Mr Chisaka did not receive $700-00 from the Appellant.

Appellant kept the money up to after External Audit. He paid back the money on 29 Mat 2015.

What is to be decided is whether or not the Appellant falsified and altered a record or made any record or document which made a false statement as provided by clause 7.5.6 of UMP Zvataida Rural District Council.

The Appellant did not deny that he wrote a document in which he made it to appear as if he had handed over $700-00 (with wrong dates dating 26 August 2015) to Mr Chisaka when he had not done so. Mr Chisaka during the hearing told the Committee that he had not received that money from the Appellant. He said that the issue of $700-00 was mere fabrication. He only wanted to protect Mr Mutegude’s job.

The explanation that the Appellant wrote explaining where the $685-00 was going to be a company record to justify how the money had been administered.

Appellant went on to pay back the $685-00 on the 29th of May 2015 because it was clear from the documents that he was the author of the shortfall.

In the case of R v Granthan 1984 (3) ALL ER 166 it was held that a person is guilty of fraud if he intends by deceit  to induce a course of conduct on another which puts that other’s economic interest in jeopardy.

By failing to properly acquit the $685-00 and misrepresenting that he had given the money to Mr Chisaka the Appellant intended to put the Respondent’s interest into jeopardy.

In the case of Mashangwa v Makandiwa HH-10-18 it was also held that,

“He says fraud is committed when the defendant, with intend to defraud, makes a statement to the plaintiff knowing or suspecting that the statement is false and intending that the plaintiff will act upon it to his prejudice. With fraud, therefore the false statement is made to the plaintiff who acts upon it.”

The Appellant in this case falsified a document to make it appear as if he had handed over the money to Mr Chisaka. This was going to prejudice the Respondent. The fact that he later reimbursed the money does not exonerate him from the offence. If the Appellant had not misappropriated the money he should have simply told the truth about its whereabouts instead of writing a false statement.

In the circumstances the appeal not being merited I therefore order as follows,

The appeal be and is hereby dismissed.

The Appellant shall bear costs.

Lawman Law Chambers, appellant’s legal practitioners

Sawyer & Mkushi, respondent’s legal practitioners