Wisdom Mutema & 7 Ors v Zimbabwe Consolidated Diamond Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/172/2020
HARARE, 21 JANUARY 2020
CASE NO. LC/H/35/19
AND 31 JULY 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/172/2020

HARARE, 21 JANUARY 2020 				CASE NO. LC/H/35/19

AND 31 JULY 2020

In the matter between:

WISDOM MUTEMA							1ST APPELLANT

TICHAONA KAMANURA							2ND APPELLANT

TATENDA SAGONDA							3RD APPELLANT

JOEL MACHACHA								4TH APPELLANT

CHARLES CHIMWAMWA						5TH APPELLANT

MUNYARADZI MANWA							6TH APPELLANT

JACOB KAZAMBARA							7TH APPELLANT

ARNOLD MUMANYI							8TH APPELLANT

versus

ZIMBAWE CONSOLIDATED DIAMOND

COMPANY (PVT) LTD							RESPONDENT

Before The Honourable Makamure J

For the 1st – 8th Appellants		Mrs M. Mandingwa (Legal Practitioner) with her

Ms M. Karimanzira (Legal Practitioner)

For the Respondent 			Mr E. Matsanura (Legal Practitioner)

MAKAMURE J:

The facts of this matter are largely common cause. They are as follows:

All the eight appellants are former employees of the respondent. They were dismissed following disciplinary proceedings. The facts pertaining to the charges and evidence are similar hence their respective appeals have been consolidated into one record. Indeed, the respective heads of argument from both sides are the same with respect to each and every one of them. Each one of the appellants was charged with a violation of provisions of the Collective Bargaining Agreement: Mining Industry (Code of Conduct) Statutory Instrument 165/1992.

Wisdom Mutema, 1st Appellant, was charged for a violation of the applicable code. I quote from the record:

“S.I. 165 of 1992 Part B 4 (b) Willful disobedience to a lawful order given by the employer and

4 (d) Theft or of Fraud.”

The 1st appellant was thereafter convicted (p 31) as follows:

“Guilt (sic) of Connivance and Previous Disciplinary Acts still valid thus Dismissal.”

The 1st Appellant was charged for willful disobedience to a lawful order; theft or fraud. He was however convicted of “Connivance...” The letter of dismissal which is standard with respect to all appellants reads as follows in part:

“RE: TERMINATION OF EMPLOYMENT

This letter serves to formally communicate the decision of the Disciplinary Committee made on the 14th of December 2018 to terminate your contract of employment on disciplinary grounds.

You were being charged on allegations of Contravening S. I. 165 of 1992, (Mining Industry Code of Conduct) specifically Part B 4(b) willful disobedience to a lawful order given by the employer and 4 (d) theft/fraud.

You have been found guilty on all the charges that is 4 (b) and 4 (d). The Disciplinary Committee has made the recommendation to dismiss you from employment despite the mitigation factors that you have cited as these have been deemed to be inadequate to overturn your case …”

Section 4 (b) of the applicable provides for – “Willful disobedience to a lawful order.”

And

“4 (d) theft or fraud”

In fact, paragraph 4 of the code of conduct provides for offences warranting dismissal. Connivance is not listed as one of these offences. It is therefore of concern that the 1st appellant was convicted of a charge which does not appear in the applicable code. What appears clear though is that at the end of the day the employee was convicted of “all” of the offences that is, willful disobedience to a lawful order, theft and fraud. While an applicable code may not exhaust all possible offences that may be preferred, it is desirable that in order for a person to be convicted of any offence, the essential elements of such offence be satisfied. In the present case, the essential elements of the offence of “connivance” appear not to have been even canvassed during the disciplinary proceedings. In any event it is an established principle in this jurisdiction that a person must be convicted of an offence which motivated the disciplinary proceedings [See Standard Chartered Bank Zimbabwe v Matsika 1996 (1) ZLR 123 (S)].

2nd Appellant Tichaona Kamanura was charged in the same manner as the 1st Appellant

(p 47). He was found guilty “on both counts.”

3rd Appellant Tatenda Sagonda, was similarly charged and was found guilty of willful disobedience and theft/fraud (p 75). 4th Appellant Joel Machacha was similarly charged. He was convicted of connivance, fraud and willful disobedience (p 24). The letter of termination of contract found him guilty of paragraphs 4 (b) and 4 (d) of the applicable code. 5th Appellant Charles Chimwamwa was similarly charged with willful disobedience to a lawful order and theft or fraud and was convicted of “both accusations” (p 99). The letter terminating his employment articulated that he was guilty of contravening both section 4 (b) and 4 (d) of the applicable code.

6th Appellant was similarly changed with violating provision of section 4 (b) and 4 (d) of the applicable code. He was convicted of violating both sub subsections. 6th Appellant, Munyaradzi Manwa was charged with contravening section 4 (b) and 4 (d) of the applicable code. He was convicted of “both”. 7th Appellant Jacob Kazambara was charged with contravening provisions of paragraph 4 (b) and 4 (d) of the Code. He was convicted of “Connivance” (p 127). The letter of termination of employment stated that he was guilty of violating paragraphs 4 (b) and 4 (d) of the applicable code.

8th Appellant – Arnold Mumanyi was similarly charged and convicted of both charges. As already noted the charges and letters of dismissal are the same with respect to all the respective appellants.

The Appellants were aggrieved by the dismissal. They appealed internally. Their internal appeals failed. Still aggrieved, they have approached this court on appeal.

The grounds of appeal are as follows and I quote them verbatim.

“1.	The Appeals officer erred at law in accepting evidence which became part of the appeals verdict which evidence was not part of the disciplinary hearing record.  This evidence sought to amplify and particularize the charge which charge was defective at the time of the disciplinary hearing.

2.	The Appeals officer erred at law in upholding the verdict that the appellants were guilty as charged. The disciplinary hearing committee had not particularized which offence the appellants were guilty of when they were facing two charges of:

(i) Willful disobedience to a lawful order.

(ii) Fraud/theft

3.	The Appeals officer also erred at law in upholding the disciplinary hearing committee’s finding that there was willful disobedience to a lawful order when there was no evidence to that effect.

4.	The Appeals officer erred on fact and in law in its interpretation of section 2 (a) S. I. 165/1992.”

The facts leading to the charges and the various convictions are that the appellants were employed by the respondent as diamond pickers. The respondent had in place a CCTV recording the diamond picking process. It was through the CCTV footage that the respondent observed that the appellants were behaving in an unusual manner. This led to the institution of disciplinary proceedings. During the initial hearing, the hearing committee held the view that as a result of the unusual conduct which was observed, each of the appellants showed that there was: “high probability that the accused was part of a syndicate to defraud the company of diamonds of an unknown value.” (My emphasis).

What is willful disobedience to a lawful order? In Matereke v C. T. Bowring and Associates (Pvt) Ltd 1987 (1) ZLR 206 (SC) the court held that in order for the offence of willful disobedience to a lawful order to be established, there must be deliberate and serious refusal to obey a lawful order given by the employer. In this case all facts are lumped together. It is not clear what the lawful order was. It is also not clear how that lawful order was disobeyed. There must have been some expected behavior or conduct set down by the respondent to be followed when picking diamonds. This is so because the respondent observed “unusual” conduct. However, the set procedure was not outlined for the benefit of the court. One wonders whether this procedure was what amounted to a lawful order. In view of the absence of the lawful order or the set procedure when picking diamonds, an independent observer or reader is not able to promptly say whether or not there was a violation of some sort. The presence of a procedure would have enabled the court to assess whether or not there was a violation of that procedure. The respondent simply states that standard practices were violated. Once the respondent had observed the anomalies, it became necessary to show at the initial hearing that firstly, a set procedure was in place and constituted a lawful order and secondly that such lawful order was not followed and thirdly an actual number of diamonds had been stolen. The actual amount or value did not matter as long as there was proof of the theft or fraud (Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012). The respondent observed that here was a “high probability that the accused was part of a syndicate to defraud the company of diamonds of an unknown value.” In other words, there was a probability of fraud. This means that for an allegation of fraud to arise, there was some misrepresentation done or made by the appellants to the actual or potential prejudice of the respondent. The respondent did not prove the misrepresentation by the appellants.  The respondent did not show the potential prejudice.

The grounds of appeal are not as articulate as they are expected to be. Grounds of appeal should be clear and precise. This is trite. Ground 4 simply refers to the interpretation of section 2 (a) of S. I. 165/1992 without showing the error in interpretation. In Dr Norbert Kunonga v The Church of The Province of Central Africa SC 25/17 the Supreme Court referred to several authorities and stated that grounds of appeal

“must be clearly and succinctly set out in clear and unambiguous terms to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet.”

That cannot be said with respect to particularly ground 4 in the present case.

The respondent has submitted that the grounds of appeal challenge procedural issues and therefore are not properly before the court. Where procedural issues are raised, they should be brought by way of review. I agree with that submission. This is the correct position. The appellant however insisted that the grounds challenge evidentiary issues and are therefore properly before the court.

In any matter where charges have been preferred against a party, such charges must be clear. That is the duty of the employer, respondent. In addressing the court Mr Matsanura who represented the respondent, conveniently avoided articulating what “both charges” faced by the appellants are. This is so especially where aspects of the record show that an alleged offender was convicted of an offence which they were not initially charged with. As correctly submitted on behalf of the appellant, in S v Mhondiwa HB 112/10

“when charges are framed in the main and the alternative the accused person has an election to either plead guilty to the main count or the alternative count. He can plead not guilty and may be found guilty of both the main and the alternative but may not be found guilty of both counts.”

It was incumbent on the respondent to clarify the charges and the essential elements required to satisfy each of such charges. In the present case the appellants were involved in some suspicious conduct. At the initial hearing there was no proof of what had been allegedly stolen or fraudulently obtained. It was only at appeal stage that the number of diamonds (although no value was placed on them) was articulated. Such evidence was supposed to be placed before the initial hearing committee. This would then have enabled the appellate tribunal to assess the errors, if any, of the initial disciplinary authority. An appellate body or authority or court cannot deal with issues which the lower tribunal has not considered. The procedure adopted was in the circumstances wrong. This is therefore reviewable in as far as the procedure adopted in adducing such evidence is concerned. However, what this simply shows is that there was no sufficient evidence before the initial hearing committee. The second ground, raises the issue that the charges were not sufficiently particularized.  The 3rd ground deals with the issue that the evidence to prove the offence of willful disobedience to a lawful order was not clear. It asserts that there was no evidence to support the charge. This means that in the absence of a clear order, one cannot be held to have willfully disobeyed any order. [See Paramount Garments (1982) (Pvt) Ltd v (1) Gilbert Marembo (2) Tayengwa Chipiti SC 33/99).

The fourth ground was not clear.  I have already commented on the need for clarity of grounds of appeal. This ground will be struck off.

It is clear that the appellants were involved in some unusual conduct. However, at the initial hearing there was no sufficient evidence. The appeal authority whose decision is now appealed against upheld the convictions where there was no sufficient particularity and where the essential elements of the charges were not met. It is always the prerogative of the employer to prefer charges. However, this has to be done in such a way that the facts disclose the conduct complained of.

Having stated the above, I agree that the first ground of appeal is procedural in nature and therefore not properly before the court. I found merit in both grounds two and three. I have already commented on the fourth ground.

In view of the above, I find that the charges were not proved on a balance of probabilities. It goes without saying that from the observations of the respondent, there was some questionable conduct on the part of the appellants. There was however no clarity as to what constituted either theft or fraud and what constituted willful disobedience to a lawful order.

In view of the foregoing the appeal succeeds. The following is ordered.

(1).	The appeal be and is hereby granted.

(2).	The order of the appeals officer be and is hereby set aside and in its stead the following is substituted:

“The respondent be and is hereby ordered to reinstate each of the appellants to their original post with no loss of salary or benefits with effect from the date of dismissal. In the event that reinstatement is no longer possible the respondent be and is hereby ordered to award each of the eight appellants damages in lieu of reinstatement in sums agreed by the parties. Should parties fail to agree either party may approach this court for quantification.”

Mhungu & Associates, Appellants Legal Practitioners

Caleb Mucheche & Partners, Respondent’s Legal Practitioners