Ventilodger Mapfirakupa v Nedbank Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/165/2021
HARARE, 24 JUNE, 2021
CASE NO. LC/H/164/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/165/2021

HARARE, 24 JUNE, 2021		               CASE NO. LC/H/164/19

AND 08 OCTOBER, 2021

In the matter between:

VENTILODGER MAPFIRAKUPA					Appellant

Versus

NEDBANK ZIMBABWE LIMITED					 Respondent

Before The Honourables  Kachambwa   and Musariri JJ;

For Appellant:			T. H. Gunje (Legal Practitioner)

For Respondent:			S. Sadomba (Legal Practitioner)

KACHAMBWA J:

This is an appeal against both conviction and penalty. The appellant was charged in terms of section 4 paragraph (a) of the model code of conduct Statutory Instrument 15 of 2006 which reads;

“4(a) any act of conduct or omission inconsistent with the fulfillment of the express or implied condition of his/her contract”.

There were five allegations of such behavior that were put to the appellant.

These are-

“1.	 Failure to provide the required oversight on the Bank’s foreign funds and related payments, particularly in respect of value chain payments, thereby resulting in the employee reporting on a wrong Nostro financial position and resulting in decisions being made based on misrepresented and unreliable liquidity management.

2.	Failing to monitor and supervise the activities of the dealer staff, namely Albert Chapatarongo and Kundai Dube, resulting in irregular payments being made and in turn resulting in proprietary prejudice in the sum of US$3 203 361.72.

3.	After recommending the allocation of US$1 750 000.00 for incentivizing bond cash depositors, that the employee had failed to put in place appropriate control measures to ensure that the allocated funds were appropriately used.

4.	Involving himself in dubious financial transactions with his subordinate, Albert Chapatarongo.

5.	Breaching the Conflict of Interest Policy by receiving money into his personal accounts from the Bank’s clients who were involved in suspicious transactions with Albert Chapatarongo”.

It is important to take note that the appellant was tried by his colleagues who have the inside understanding of the processes that were involved. Nevertheless the appellant was of the view that the charge was not proved on a balance of probabilities and the penalty was not right because;

“1. 	The hearing authority erred procedurally in inviting the parties to file closing submissions immediately after the closure of the complainant’s case without putting the appellant to his defence and allowing him to be cross-examined.

2.	The hearing authority erred at law in retaining a verdict of guilty in the absence of evidence on a balance of probabilities to that effect seeing as;

2.1.	There were clear circumstances not attributable to appellant that led to negative NOSTRO Gap.

2.2	The relationship between appellant and his subordinate (ALBERT CHAPATARONGO) did not give rise to any violation of the law.

2.3	The transactions involving the bank’s customers did not give rise to any conflict of interest.

3.	The hearing authority erred in passing an exercise penalty regard being had to the circumstances of the case and mitigating circumstances of the appellant which he did not considered”.

The respondent successfully objected to ground of appeal number one as ground of appeal. The appeal proceeded on the remaining two grounds.

There was no internal appeal in this case because the hearing authority was a member of the Board of Directors of the bank, the highest structure. Therefore the appeal came directly to the Labour court.

On conviction the appellant’s argument was simply that there was not enough evidence to convict. When one reads the record of proceedings or even the determination by the hearing authority on one side and the appellant’s argument on the other side, it is as if we are talking of two different cases. There is an attempt to reargue and even an attempt to bring in new evidence. The determination by the hearing authority is very clear on why it retained a guilty verdict. The appellant’s closing submissions are clearly analysed and dismissed in line with the evidence available and

defence proffered. Every basis of the charge was looked at carefully and found to be valid. The appellant’s argument is that evidence was not enough. In other words the evidence produced and found/accepted was not enough to convict. Therefore he had a duty to show how it can be said to be inadequate.

FAILURE TO PROVIDE OVERSIGHT ON FOREIGN FUNDS AND RELATED PAYMENTS

The appellant’s argument was that there was a positive position up to 31st October 2018. The negative position was caused by the Reserve Bank of Zimbabwe’s policy to separate Nostro and RTGs accounts. He also argued that in turn the bank’s whole management failed to apply this policy carefully hence the loss. He also brings in what is certainly evidence by way of having some clients who were paid huge foreign cash.

On the other hand the respondent pointed out the role of the appellant’s department and his role as head. While admitting that there were contributing factors to the shortfall the respondent was clear that ultimately the appellant is responsible as head. The deficiencies arising from his department end with him.

It is this court’s observation that on the admitted evidence alone the finding of guilty is inevitable. It is immaterial that another department could have detected the problem. The appellant will be held liable for his area of responsibility. The mere fact that the information provided was not a true reflection of the funds available at the time, not afterwards, is enough to show that the appellant had failed on his duty.

There does not appear to be any misdirection on the conviction on this allegation.

FAILURE TO MONITOR AND SUPERVISE DEALING STAFF

On this aspect the appellant went back to the same argument of other departments being responsible as well. There is also the argument that he was not availed with the forensic reports for Albert Chapatarongo and Kundai Dube which reports should have assisted him in fully responding to the charge. He caped the argument by saying that in any case the onus to prove the charge was with the accuser anyway and so was the duty to call the two witnesses.

On the other hand what the respondent said, that the two subordinates went on a frolic of their own, is not challenged. It is also common cause that they were in the appellant’s department. It was also common cause that the appellant was not aware of their dirty dealings. They were left on their own initiatives. The respondent therefore argued that the appellant is the only person who can be held liable for their sins.

It appears to this court that on the admitted facts alone the appellant has nowhere to hide and nowhere to run to. No-one else can be held liable for the sins of these two in the first place. All the other departments come second after him. One wonders how he fails to see that simple point.

FAILURE TO APPLY RISK MANAGEMENT ON FUNDS ALLOCATED FOR BOND MOBILISATION

The appellant’s argument was that this was not for his department alone and therefore “a joint charge with other support units and contributory weights needs to be attached to the charge other than wholly placing it on the Treasurer and leaving other business units untouched”. (para 11.3 of the heads of argument.)

In essence this is a plea of guilty coupled with mitigation. That others have not been charged as well is a different issue to being guilty.

CONFLICT OF INTEREST

In his heads of argument the appellant points to the fact that the transactions in question took place many months apart (5) and could not be linked as showing conflict of interest. Further, in one transaction the amount of 4800 Rtgs was too small for the appellant to take the risk. He also alleged that the decision was pre-determined. At the same time he accused the hearing authority of ignoring an affidavit on the case.

The respondent’s argument was that payments from the bank’s customers are prima facie evidence of illicit rewards from the bank’s customers. The appellant’s explanations were not plausible. It also said that it was the appellant’s duty to call Albert to support the appellant’s claim. But more importantly perhaps is the observation that the appellant had departed from his position at the hearing and was now claiming that the payments were for his business transactions. The respondent also pointed out the appellant’s vacillation on the payments from Albert Chapatarongo. These vacillations were said to point to the fact that the appellant was dishonest.

Thus the respondent was of the view that this act of misconduct was proved. This court is of the same view.

ALTERING THE VERDICT OF A LOWER COURT

The appellant invited the court to upset the decision of the hearing authority. His main argument was that there was no evidence to convict. He therefore argued each allegation. This court has not agreed with him. Many judgments have explained the situation when a decision may be reversed. It has also been pointed out that on the same facts two Judges may come to different conclusions without either of them being wrong. Further it is important to note that decisions on the facts are not science in the sense that one plus one is always two.

The superior courts have cautioned against upsetting decisions of the lower court lightly Korsan JA (as he then was) is one of those who have emphasized this position repeatedly. In the case of Levy v Modus Publications 1988 (1) ZLR 229 (S) at page 297 F-G he says;

“generally speaking, an appellate court will not interfer with the decision of a trial court based purely on a finding of fact unless it is satisfied that the finding had been based on an erroneous evaluation of the facts taken as a whole, or it is satisfied that the Judge had given no weight or sufficient weight to those considerations which ought to have been weighed with him, or that he has been influenced by other considerations which ought not to have weighed with him or weighed so much with him”.

This pronunciation follows what he had said in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664(S) at 70, that-

“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 purely 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”.

A very high standard has been set for an appeal court to interfere with the decision of a trial court. Gubbay CJ, as he then was, explains further in Barros and Another v Chimphondah 1999(1) ZLR 58(S) where he says;

“It is not enough that the Appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion ….In short this court is not imbued with the same broad discretion as was enjoyed by the trial court”.

It has been explained in some criminal cases how the trial court not only has the evidence as is on record but also the unwritten evidence that comes from seeing and hearing the witnesses. This might make the difference between conviction and acquittal and yet it is not available to the appellate court. This places the trial court in a better position to make the correct decision on the facts. This should be even more so in labour matters where the trials are by equals or experts in the area of employment. They are likely to appreciate the evidence better as they have inside information so much such that some questions are not even put to the witnesses because both sides already know the position. 	On this advantage of the trial court the Supreme court in S v Isolano 1985 (1) ZLR 62 (S) at 63 said that-

“I find the remarks of LORD MACMILLAN in Watt (or Thompson) v Thomas (1947) 1 ALLER 582 (HL) at 590 B-D very appropriate in this case- He said:- The Appellate court had before it only the printed record of the evidence where that the whole evidence it might be said that the appellate Judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial Judge posseses in reaching his conclusion, but it is not available to the Appellate court, so far as the case stands on paper, it not frequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, when the decision of the trial Judge, who has enjoyed advantages not available to the Appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or hearing of circumstances admitted or proved, or otherwise to have gone completely wrong. See also Hughes v Graniteside Holdings (Pvt) Ltd SC 13/84 (unreported) at page 10-14”.

The courts have consistently followed the above approach. In the present case it is clear that the appellant’s major complaint is that he is not the only one to blame. After all is said and done there is no misdirection on the facts at all. Infact some of the responses are pleas of guilty in reality. Therefore in line with the slew of cases on appeal procedures there is no room to interfer with the conviction. This approach is further supported recently in the case of MBCA Bank Limited v Tawanda Mwaenga SC 120/20 where in GOWORA JA at pages 7 & 8 of the cyclostyled judgment says-

“The position is settled that an appellate court is precluded from interfering with findings of fact by a trial court except in very exceptional or limited circumstances. It is also settled that in order to interfere with such findings of fact, the appellate court must be satisfied that the trial court in making its findings on the facts was irrational or that its findings were so outrageous in their defiance of logic or accepted moral standard that no sensible person who had applied his mind to the question to be decided could have arrived at the same conclusion.

In disciplinary proceedings findings of fact are the preserve of the disciplinary committee or, as was the position in this case, the disciplinary authority. That this is the law has been stated by this court in a plethora of authorities. In Muyaka v Bak Logistics (Pvt) Ltd SC 39/17, UCHENA JA stated:

“Findings of fact in any proceedings except where an appeal is heard in the wide sense (a rehearing) are made by the initial disciplinary tribunal or court of first instance. They can, except in the case of an appeal in the wide sense, only be made once by such disciplinary authority, tribunal or court. In this case, they were made by the initial disciplinary authority. Thereafter from the respondent’s internal appeals officer to the Labour court, the task was not to make findings of fact but to assess the findings of fact made by the disciplinary authority against the standard of gross unreasonableness in the circumstances they were made. The arbitrator could therefore not make factual findings.  As a result, I ………..”.

In an earlier case, Zinwa v Mwoyounotsva SC 28/15, this court stated:

“It is settled that an appellate court will not interfere with factual findings made by a lower court 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; or put otherwise, the decision 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 it; or that the decision was clearly wrong”.

The appellant has not shown that the finding of guilty does not meet the balance of probabilities. In other words it cannot be said that the findings of fact are irrational or unreasonable and so forth. The facts are well founded if not admitted. They may not be disturbed.

Coming to the penalty, the appellant argued that it was excessive in the circumstances. He also claimed that the mitigating factors were not considered while on the other hand there were no aggravating circumstances placed on record. He further argued that the fact that an offence is a dismissible offence does not necessarily mean that one has to dismiss. There is a discretion not to dismiss regardless. That discretion was said not to have been properly exercised as a proper exercise would have led to a penalty of a written warning. Therefore, it was argued, there was a misdirection on the penalty. On the other hand the respondent argued that there was no misdirection at all on the penalty and the appellate court should not interfere.

Once again the road on penalties is well weatherbeaten. The law does not permit interference unless the appellate court is satisfied that there was a misdirection on the exercise of discretion. A long line of cases has repeated this principle. The appellant has not put forward a case of serious misdirection on the exercise of the discretion. Rather he has sought to argue that his case is not that serious and that the respondent did not consider his mitigating factors.

In Damiano Chingwaru v Minister of Transport and Infrastructural Development SC/20 Makoni JA had this to say at pages 5 & 6 of the cyclostyled judgment-

“The position of the law is well settled as regards the discretion of the employment to dismiss an employee. In Toyota Zimbabwe v Posi 2008 (1) ZLR 173(S) at 179F the court applied the common law principle that an employer has a right to dismiss an employee following conviction for misconduct of a material nature and going to the root of the employer and employee relationship”.

In Celsys Ltd v Ndeleziwa 2015 (2) ZLR 62 (S) 65F the Court also held that:

“The law is settled that in circumstances where an employer takes a serious view of an employee’s misconduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question”. (emphasis mine).

See also Zimbabwe Platinum Mines (Pvt) Ltd v Godide SC 2/16.

The discretion reposed in an employer is however not absolute. It can be set aside if it is exercised injudiciously or capriciously. In Malimanzi v Cabs 2007 (2) ZLR 77(S), the Court explained the principle in the following words at page 80 B-C.

“It is trite that an appeal court does not interfere with the exercise of discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. As contended for the respondent, the penalty imposed mush show a serious misdirection to justify interference by the appeal court” (my emphasis).

In the present case we are faced with a serious case of misconduct. Any of the set of factors upon which the charge is based show a serious case of misconduct. The employer took that view. The appellant’s department was clearly a very important department in the operations of the appellant in disbursing a scarce commodity. The operations not only affected the appellant’s employer but even the economy of the country at large for it is common cause that foreign currency was and remains a scarce commodity in the country. It has to be allocated judiciously. Now therefore, in light of all this can it be said that the respondent misdirected itself in imposing a dismissal penalty?. Has such a case been made?. Certainly not.

All the authorities speak clearly that there must be a serious misdirection in the application of the discretion. Such is not visible in this case. The fact that others may also be to blame does not exonerate the appellant. He is accountable for his part.

In the result of this case both the appeal on the finding of fact and on the penalty failed.

Normally costs follow the results. It has not been argued otherwise. It is not apparent on the face of it that costs should not follow the results. Consequently it is ordered as follows;

The appeal be and is hereby dismissed with costs.

KACHAMBWA J:………………………………………………….

MUSARIRI J:	……………………………………………….I agree

Gunje Legal Practice		-	Appellant’s Legal Practitioners

Gill, Godlonton & Gerrans 	-	Respondent’s Legal Practitioners