William Tekere v Delta Beverages Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/721/16
HELD AT HARARE ON 25TH JULY, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/721/16

HELD AT HARARE ON 25TH JULY, 2016 	    CASE NO. LC/H/587/15

AND 18TH NOVEMBER, 2016

In the matter between:-

WILLIAM TEKERE							    Appellant

And

DELTA BEVERAGES LIMITED						    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mrs R. Peters (Legal Practitioner)

For Respondent	:	Mr K. Ncube (Legal Practitioner)

MHURI J.

This is an appeal against an arbitral award of the 19th June, 2015 wherein Appellant’s claim of unfair dismissal was dismissed for lack of merit.

The factual background which is generally common cause is that:

Appellant was in Respondent’s employ as a Sales Manager in the Sparkling Division.  On the 30th April, 2013 Appellant signed a requisition form requesting a sum of $450.00 for a business trip to Kariba/Chirundu.

Appellant was duly paid the said sum.  Appellant also filled in an Expense Claim form in which he indicated the amount spent on this trip (9 – 11 May) as expenses, as $450.00.

In a response to the Audit manager’s request that he writes a report on anomalies picked on the invoices he had submitted for reconciliation, Appellant advised the Audit Manager that all the relevant documents were submitted upon his return from the trip.

Appellant was eventually charged with fraud and found guilty of fraud in terms of Section 4(d) of the national code Statutory Instrument 15 of 2006.  His appeal was unsuccessful.

In his analysis of the parties’ evidence and submissions, the Arbitrator found that in the definition given by both parties’ there was an element of prejudice.  He also made the finding that it was a clear misrepresentation on the part of Appellant to have submitted, for purposes of reconciliation of his expenses, an invoice from Carribea Bay Hotel, when he had not resided at that hotel.  Further he was of the view that by so doing, Appellant’s intention was to prejudice Respondent.

In both parties arguments it is clear that they are in agreement that fraud consists of a misrepresentation with the intention to deceive and with the result that either there is actual or potential prejudice

See:	STATE vs SITHOLE 1997 (1) ZLR 283

It is trite that fraud consists of two elements vis actus reus and the mens rea both of which must be proved.  Without mens rea, the offence will not have been established.

See:	GEORGE MAKUVAZA vs NATIONAL RAILWAYS

1997 (2) ZLR 453 (S)

In casu, Appellant requested an amount of $450,00 for his Kariba – Chirundu trip.  He used a Carribea Bay Hotel invoice.  After the trip, Appellant submitted an expense claim form detailing his expenditure of the $450,00.  He endorsed the amount spent as $450,00.  This amount tallied with the amount quoted by Carribea Bay Hotel for accommodation and meals.  When asked about the travel expenses for the 30th April, 2013 to December 2013 trips, Appellant stated in an email dated 11th April, 2014 that he had submitted all the relevant documents upon his return from the trip.

Appellant did not stay at Carribea Bay Hotel.  He knew that he had stayed at Spring Resort in Karoi whose rates according to the invoice filed of record were $40,00 lower than those of Carribea Bay Hotel.  This invoice, and the fact that he did not stay at Carribea Bay Hotel but at Spring Resort was only mentioned in the disciplinary hearing on the 27th June, 2014.  This was the finding made by the Disciplinary Authority.

The question that follows is why did Appellant submit the expense claim form stating he had expended $450.00 when he knew he stayed at a resort which had cheaper rates.

In my view, both the actus reas and mens rea were proved on a balance of probabilities.  I do not find fault with the Arbitrator’s finding that Appellant’s submission of a pro forma invoice for purposes of reconciling his expenses was a clear misrepresentation as he had not stayed at Carribea Bay Hotel.  The intention clearly was to cause prejudice to Respondent.

The Arbitrator found Appellant’s misrepresentation as a deliberate one that betrays the trust between him and his employer, and that this went to the root of the employment contract.  These findings are beyond reproach.  There was in Appellant’s actions an element of dishonest on his part.  I find that the award by the Arbitrator dismissing Appellant’s claim for lack of merit to be unassailable.  It cannot be impugned and to that end I will dismiss the appeal.

It is therefore ordered that the appeal be and is hereby dismissed with costs.

MESSRS J. MAMBARA & PARTNERS – Appellant’s legal practitioners

GILL, GODLONTON & GERRANS – Respondent’s legal practitioners