Vimbai Ronika Makoni & 3 Ors v Minister of Agriculture, Mechanisation & Irrigation Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/166/16
HELD AT HARARE 16 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/166/16

HELD AT HARARE 16 FEBRUARY 2016			CASE NO LC/H/513/15

& 18 MARCH 2016

In the matter between:

VIMBAI RONIKA MAKONI					1st Appellant

And

NETSAI TSANYAU						2nd Appellant

And

MEMORY NHENGA						3rd Appellant

And

KENNEDY NYEMBA						4th Appellant

And

MINISTER OF AGRICULTURE, MECHANISATION		Respondent

& IRRIGARION DEVELOPMENT

Before The Honourable L M Murasi, Judge

For Appellants		Mr P Gomo (Legal Practitioner)

For Respondent		Ms S Chihuri (Legal Officer)

MURASI, J:

At the conclusion of the oral submissions the court dismissed the appeal stating that there was no merit.  Appellants’ legal counsel has requested for written reasons therefor.  The following are the reasons.

Appellants were employed by respondent in various capacities at its Marondera Offices.  It is alleged that appellants were assigned duties to assist in the distribution of agricultural inputs, namely fertiliser, to farmers in the area.  It is alleged that the appellants received bags of fertiliser which they were not entitled to but should have been distributed to farmers who did not attend on the particular date of the distribution.  The appellants were charged with misconduct.  Disciplinary hearings were held and appellants were convicted and the respondent dismissed the appellants from employment.  Appellants were not satisfied with the decision to convict them and subsequently terminating their employment with respondent.  They appealed to this court.  Appellant’s grounds of appeal were as follows:

The respondent erred when it found all appellants guilty when in fact there was no evidence adduced sufficient to convict them.

All appellants were exposed to the risk of ‘self-incrimination’ as there was no complainant

The disciplinary authority of respondent misdirected itself when it failed to ask the appellants to plead.

The respondent erred when it found the appellants guilty on a charge that they had not been arraigned before the disciplinary committee (accepting bags of fertiliser) same not being part of the charges they were facing and there being no finding of fact that indeed they had wilfully accepted the bags.

The disciplinary committee erred when it proceeded to finalise the matter and finding the appellants guilty when all the appellants’ witnesses testified that they forced the appellants to take the fertilisers.

The disciplinary committee misdirected itself when it found the 4th appellant guilty of falsifying names when no evidence was led to that effect.

The respondent erred when it ignored the mitigatory factors raised by all appellants.

Mr Gomo for the appellants stated that he largely abided by the submissions

filed of record.  He submitted that as shown by the letters terminating their employment, appellants were found not guilty of the charges which were preferred against them initially.  As far as connivance and fraud were concerned the respondent was bound to prove intention on the part of appellants.  It was further submitted that the appellants had received the bags of fertilizer under duress and this clearly negated the intention to defraud as alleged by the respondent.  Mr Gomo also stated that the appellants had reported this matter to their supervisor but the latter had not been called to testify during the disciplinary hearings.  It was further argued that the disciplinary committee had clearly erred in not accepting the evidence of the witnesses who said they had forced the appellants to accept the bags of fertiliser.  Mr Gomo further submitted that the respondent had erred in not considering the mitigating points presented by the appellants when considering the issue of the appropriate penalty to be meted out on the appellants.  Mr Gomo  further pointed to the issue of inconsistency in the letters written to appellants dated 29 January 2015 and 5 January 2015 respectively and argued that there was an issue of pre-conception of the guilt of the appellants before they were tried.  It was further stated that no sufficient evidence to convict the appellants was adduced by the respondent.  It was argued that it was the duty of the respondent to prove the allegations on a balance of probability and this was not done.

Ms Chihuri for the respondent also stated that she abided by the documents filed of record.  She submitted that the appellants were being charged with contravening section 44 of the Public Service Regulations, Statutory Instrument 1 of 2000 (as amended).  The allegations were that the appellants had received bags of fertiliser which they were not entitled to.  It was submitted that farmers’ names had been written down as having received those bags of fertiliser when in fact it was the appellants who had received them.  Ms Chihuri stated that the same bags were handed to the police by the appellants during the course of investigations.  It was also stated that it was the District Agriculture Extension Officer (DAEO) who had reported the matter.  It was argued that the appellants knew at the time of receiving the bags of fertiliser that they were not entitled to receive them.  Ms Chihuri further stated that respondent had taken appellants’ mitigatory features into account in arriving at the penalty imposed and the dismissal was appropriate taking the facts of the case into account.

Precedent has shown that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection to such an extent that another court or tribunal would not have arrived at such a decision on the same facts (See Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S).  It is trite that such misdirection can be gleaned from the record itself.  I should at the outset state that the purported third ground of appeal is actually a ground for review and should have been brought in the appropriate forum.

The first ground of appeal avers that there was no sufficient evidence adduced to find the appellants guilty of the charge.  Most of the issues in this matter are common cause.  Appellants admit that they received the bags of fertiliser though under duress.  Therefore the issue of them having received the bags of fertiliser is admitted.  The issue they allege that they received the bags under duress, is not contested by the respondent.  Respondent’s evidence was to the effect that before the appellants received the fertiliser , they consulted their supervisor who informed them that it was unlawful to receive the bags of fertiliser.  The following comes from Nhenga during the disciplinary hearing:

“At first we denied, but he kept on pressing on us to accept the bags of fertiliser saying that it was a token of appreciation.  I reported to the supervisor who indicated that it was not allowed.  The DAEO also indicated that it was not allowed to accept the token.”

Clearly the appellants were aware that it was wrong to receive the bags of fertiliser from the onset.  They had received confirmation of the unlawfulness of the venture from the highest authority in their administrative province.   What more evidence was the respondent expected to adduce?  Appellants state that they received the bags of fertiliser under duress.  However the actions of the appellants after receiving the bags of fertiliser do no depict persons who had been forced to receive them.  From the fields the bags of fertiliser were transported into Marondera town and then to appellants’ respective homes.  The bags of fertiliser were only retrieved from their homes during the course of investigations.  The million dollar questions is why did the appellants not take the fertiliser either to the Police or DAEO?  The following response to a question was received from Makoni during the disciplinary hearing:

“Q:	If you were forced why didn’t you report to the police?

A:	They indicated that the inputs were from the President.”

As is clear from the response, the appellant did not take the duress seriously and decided to benefit from the input scheme.  In this regard it is clear there was no “self-incrimination” as alleged in the second ground of appeal.  The facts show that the appellants were aware that they were not entitled to receive the bags of fertiliser but went ahead and did so.

Was the disciplinary committee in error in finding the appellants guilty?  The evidence even from appellants themselves shows that they had been told of the unlawfulness of the actions by their superiors.  They went ahead and received the bags of fertiliser and took them home.   Despite the allegations of duress, the appellants do not find it necessary to report to the Police.  I am of the view that a reasonable tribunal would have convicted appellants in the circumstances.  I share the sentiments in Chioza v Siziba S 4/15 to this effect:

“The court a quo made factual findings in this regard.  The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court…  In the absence of such a misdirection (and none has been alleged by the appellant) it is not open to this court on appeal to substitute is own findings of fact for that of the trial court.”

In casu the court is of the view that appellants have not demonstrated that the disciplinary committee’s decision was such a gross misdirection as to amount to a misdirection in law.  It is my view that this takes care of grounds of four up to ground of appeal number seven.

Mr Gomo submitted that the respondent did not take appellants’ mitigatory features into account when determining the issue of penalty.  Appellants do not state what penalty would have been the appropriate one in the circumstances.  In this case appellants were part of a group of persons distributing fertilisers to the community.  They sought to benefit from a scheme by merely participating in the distribution.  Appellants were not entitled to receive any of the fertiliser unless they were farmers from the area concerned.  Appellants were civil servants.  It is my view that such behaviour in any civilised society cannot be condoned.  I share the following view in Country Fair Foods (Pty) v CCMA & Others (1999) 20 ILJ 1701 (LAC) which stated thus:

“It remains part of our law that it lies in the first place within the province of the employer to set the standard of conduct to be observed by the employees and to determine the sanction with which non-compliance will be visited interference therewith is only justified in the case of unreasonableness and unfairness”

The question should be would a reasonable employer have reasonably dismissed the appellants?  If the answer is in the positive, then the dismissal was reasonable.  I am of the view that the decision by the respondent to dismiss the appellants cannot be faulted.

Mr Gomo raised what I consider “red herrings” during the oral submissions.  He referred to the letters written to appellants dated 5 January 2015 and 29 January 2015.  He alleged that the first letter showed that some charges had already been preferred against the appellants.  What the letters simply show is that appellants were responding to earlier correspondence and this does not directly have a bearing on the hearing conducted by the disciplinary committee.  The other issue raised by Mr Gomo  was that appellants had been found “not guilty” of submitting a fictitious list of farmers in respect of the charges they were facing.  Mr Gomo seems to ignore the fact that the disciplinary authority must have come to this conclusion after weighing the evidence.  What should be remembered is that appellants were facing two charges, viz, one of conniving with the distribution committee and the second of falsifying the records.  The disciplinary committee found the appellants guilty on the one charge and not guilty of the other.  The appellants were found not guilty of falsifying the records. This court does not find any error in the committee’s determination.

In conclusion I am of the view that the appeal lacks merit and should be dismissed.

The court makes the following order:

The appeal being without merit, is accordingly dismissed.

The decision of the disciplinary committee finding the appellants guilty culminating in their dismissal be and is hereby upheld.

That each party bears its own costs.

Zvinavakobvu Law Chambers, appellants’ legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners