Yellocob Enterprises (Pvt) (LTD) V Joyce Jongwe

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE HELD AT
JUDGMENT NO LC/H/351/25 CASE NO
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

25 SEPTEMBER 2025 & 30 SEPTEMBER

2025

JUDGMENT NO LC/H/351/25 CASE NO LC/H/622/25

YELLOCOB ENTERPRISES (PVT) (LTD)

JOYCE JONGWE

Before Honourable Justice Tsikwa

For Appellant: T Mupamhadzi (Legal Practitioner)

For Respondent: P Gomo (Legal Practitioner)

APPELLANT

RESPONDENT

TSIKWA J: This is an appeal against the decision of the arbitrator in terms of Rule 19 (1) of the Labour Court Rules, 2017 as read with Section 98(10) of the Labour Court Act.

BACKGROUND FACTS

The respondent was employed by the appellant at Spar Supermarket, Mutare as a Till Operator. The standing instruction was that on a daily basis Till Operators were supposed to surrender all cash and bank cards on their person to the Loss Control department. It is alleged that contrary to this instruction the respondent was found in possession of a bank card on 29 March 2024. It is further alleged that whilst at her till point she received the bank card from Yolanda and placed it on her till drawer. She later returned the card to Yolanda.

However, the respondent was charged with an offence of dishonesty under Group iv offences as outlined in SI 45/93. A disciplinary hearing was conducted on 9 April 2024. She was convicted and discharged from employment. She appealed against that decision to NEC which referred the matter for compulsory arbitration. The arbitrator one A.T Fambisai set aside the respondent’s

conviction. The employer was aggrieved by that decision and noted this appeal under consideration.

THE RELIEF SOUGHT

WHEREFORE, the appellant’s prayer is for an order that:

The appeal be allowed with costs and that the whole arbitral award be set aside and substituted with the following:

The appeal before the Honourable A.T Fambisai be and is hereby dismissed with costs.

The determination of the disciplinary officer dated 6 May 2024 and is hereby upheld.

POINTS IN LIMINE

Before the matter could be argued on merits the respondent raised points in limine listed hereunder:

The grounds of appeal do not conform to Form LC4 in that they are not clear and precise which defect is not curable and they are a nullity.

There are no sufficient allegations to warrant the interference of the appellate court.

The appeal attacks the award on findings of fact which is irregular.

In detail it was submitted that the arbitrator acted in accordance with the law in coming up with this award Counsel raised concern with the imprecise grounds of appeal. In

order to express his disquiet with the grounds of appeal by citing the case of Mcfoy v United Africa Co. Ltd [1961]3 AII ER 1169(PC)at1172

The applicant’s counsel submitted that the only requirement when formulating grounds of

appeal is that they must inform the other of what is being challenged on the judgment of the

court a quo. He further submitted that in casu they are challenging the decision of the arbitrator to acquit the respondent yet evidence proved on a balance of probabilities her guilt on a

balance of probabilities.

It was submitted that ground 2 conforms with the requirements of the law and the non-

production of the standard operating procedure document was of no consequence because the respondent aware of that document. It was also contended that the third ground of appeal is

clear because the respondent did not surrender the bank card to the loss control department. I shall deal with these preliminary issues in seriatim.

Ground of appeal number1

That the arbitrator erred at law and grossly misdirected himself in finding the respondent not guilty where the evidence placed before him and adduced during the disciplinary hearing was sufficient on a balance of probability to prove that the Respondent had committed the offence she was charged with.

In all fairness this ground of appeal was clumsily drafted and so vague and embarrassing as to fail to inform the court as to what is being impugned. The ground of appeal refers to all the evince led during the disciplinary proceedings. It does not refer the court to the particular evidence that proved the respondent’s guilt that was ignored by the arbitrator.

This approach was condemned in the case of Zimbabwe Anti-Corruption Commission V

Gibson Mangwiro and Another SC11/ 22 where it was stated as follows:

“I agree with Mr Mapuranga that the ground of appeal does not particularize the basis for the complaint. It is unclear whether the ground attacks factual finding or a legal finding.

In my view the ground of appeal is incomplete and therefore vague. It falls squarely into the category of defective grounds of appeal that are bad at law which in the words of LEACH J in Sonyongo v Minister of Law and Order 1196 (4) SA 384 AT 38F:

“specify the findings of fact and rulings of the law appealed against so vaguely as to be of no value either to the court or to the respondent, or if they, in general fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.”

Similarly, Makoni JA in Mahommed v Kashiri SC 85/19 stated as follows in relation to defective grounds of appeal:

“The applicant’s first ground of appeal simply complaints that the court below was wrong in making a particular decision and should have instead made a different finding. The basis of the attack is not stated. Further, the ground of appeal does not indicate why the finding of fact or ruling is to be criticized as wrong, is said to be wrong. “

On the basis of the above principles I do not hesitate to make a finding that the first ground of appeal is irregularly and vaguely draft. The point in limine 1 is upheld.

Ground of appeal number 2.

This ground is couched as follows:

The arbitrator erred factually which misdirection is so outrageous in its defiance of logic and amounts to a point of law in holding that the appellant had failed to provide the company policy or standard operating procedures in circumstances where the respondent never disputed knowledge of the standard operating procedures specifically barring her from having bank swipe cards at till point whilst on duty , during the initial

disciplinary hearing .

A careful analysis of this ground of appeal shows that the appellant is clear on what basis it is attacking the decision of the arbitrator namely that he considered an irrelevant issue of non-production of the standard operating procedures leading to an acquittal of the respondent. If proved it means the decision of the arbitrator will have to be vacated. This ground of appeal is well drafted in accordance with the rules.

The point in limine is therefore without merit. It is dismissed.

Ground of appeal number 3.

This ground of appeal is as follows:

The arbitrator erred factually which misdirection is so outrageous in its defiance of logic and amounts to a point of law in failing to hold that a swipe card is regarded as form of currency and the failure by respondent to declare it when she entered the shop and also to advise front the Front-End Supervisor was a clear indication of the respondent’s intention to swipe ZWG and obtain United States Dollars.

Again, this ground is clear that what was considered grossly irrational was the decision by the arbitrator not to consider a bank a card as a form of currency. In other words, it is being alleged no reasonable tribunal would have come to the same conclusion.

If proved it is a ground crafted in clear terms as to inform respondent of what is being impugned of the arbitrator’s decision and might mean setting aside of the arbitrator’s decision.

It is my finding that this ground of appeal is properly drafted as to inform the respondent and the court the nature of the complaint. The point in limine is dismissed.

Ground 2 and 3 having been found to be validly before the court I shall proceed to determine the merits of the matter.

DETERMINATION OF THE APPEAL ISSUES FOR DETERMINATION

Whether or not there was sufficient evidence to prove the misconduct on a balance of probabilities?

Whether or not the arbitrator misdirected himself in finding that the appellant failed to produce the standard operating procedures?

Whether or not the arbitrator misdirected himself in failing to find that the respondent had an intention to swipe ZWL and obtain USD.

The arbitrator’s award has been challenged by appellant as outlined above.

The appellant’s counsel argued that during the disciplinary hearing a video was tendered as evidence which proved the guilt of the respondent on a balance of probabilities on various aspects. It was further submitted that the video proved that the respondent did not surrender her bank card to the Loss Control department.

It was further argued that respondent gave her bank card to security at the door so that it can be given to a relative who wanted to swipe but the guard gave it to her when she was attending to a certain customer thinking it was relative referred to. It was argued that several questions arise from this. Why did this security guard give her the card at that moment? Why had respondent not surrendered the bank card to Loss Control? If respondent was aware of the SOP, then her retention of the card meant she was up to something as revealed by the video.

Counsel for the appellant went on to submit that there was no need to tender the SOP because it was an admitted fact. Reference was made to authorities such as Fawcetts Security Organisation v Director of Customs and Excise 19993 (2) ZLR 121 (SC) and DD Transport (Pvt) Ltd v Abbort 1988(2) ZLR 92 to buttress the point that there is no need to lead evidence on what is not disputed.

The decision of the arbitrator was challenged on the basis that he failed to make a finding that by failing to surrender the bank card it showed an intention to take US dollars and that the explanation that she intended to give the card to a relative is an after thought.

The appellant’s counsel drew to the attention of the court the of Ebrahim v Pitman NO 1995 (1) ZLR 176 (H) which cited the Supreme Court case of British American Tobacco Zimbabwe v Chibaya SC 30/19 wherein it was held that in civil cases where the court seeks to draw inferences from the fact , it may , by balancing probabilities , select a

conclusion which seems to be more natural or plausible (in the sense of more credible) conclusion from among the several conceivable ones even though that conclusion is not the only reasonable one.

A prayer was made for the setting aside of the arbitrator’s award.

The respondent’s counsel argued that once the SOP was not tendered in evidence there was nothing on which the arbitrator could have been expected to confirm the conviction. Further it was submitted that the arbitrator decided the case on the basis of evidence before him. Counsel argued that in the premises it was bad at law to attack the reasoning of the arbitrator.

It is also respondent’s submission that the fact that arbitrator did not rule in favour of the appellant can never a ground of appeal. Further, it is respondent’s contention that the non-production of the SOP meant that there was no proof that a swipe card was supposed to be taken as some form of currency. Respondent’s counsel also took issue

with the fact that the said video relied upon by appellant was not tendered as evidence therefore in the light of that there is no way the arbitrator could have been expected to confirm the conviction.

Respondent prayed for the dismissal of the appeal with costs on a legal practitioner

client scale because she is of the view that the appeal is an abuse of court process and a way of delaying the inevitable. She submitted that she incurred unwarranted

additional costs. Reference was made to the case of Mudzimu v Munipality of Chinhoyi and Samuriwo 1986 (1) ZLR 12 (HC).

The respondent also relied on the sentiments by Mafusire J in the case of Rumbidzai Kusano v Innscor Africa HH223/16 where the judge stated as follows;

“In casu, I lament further, further. Legal practitioners should desist from taking up dead causes and act as hired guns, especially in matters where the law is settled. It is an abuse of court process.”

THE RELEVANT LAW

In terms Section 98 (10) of the Labour Act an appeal on a question of law shall lie with the Labour Court against the decision of the arbitrator. The section provides that:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section”

In Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 it was held that a point of law is a point which seeks to define the what the position of law is. That which is for the judge not jury to decide. It was stated as follows:

“First it means “a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter.” Second, it means a question as to what the law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a

certain matter.” And third, any question which is within the province of the judge instead of the jury is called a question of law.”

APPLICATION OF THE LAW TO FACTS

Whether or not the arbitrator misdirected himself in finding that the appellant failed to produce the standard operating procedures

In casu, the arbitrator’s decision has been attacked on the basis that he came to an irrational conclusion that there was insufficient evidence to prove the case against appellant in the absence of the SOP.

It is important to note that there is no single person who gave evidence against the respondent. There has been mention of a video that was tendered in evidence this video was not before the arbitrator when he heard the appeal. It is not even part of this

appeal record. Whatever those who watched it saw and the opinions they formulated there from was not placed on record.

Appellant’s counsel submitted that production of the SOP was not important because respondent admitted knowledge of it. I am sure counsel missed the point here. It was not only knowledge of its existence that was important but it says in relation to the

charge respondent was facing that was crucial. The defence by respondent was correctly captured in a letter by appellant notifying her of the verdict dated 6 May 2024. The first point in the paragraph summarizing respondent’s defence it was stated as follows:

“You were not aware of the governing standard operating procedures that prohibits given a swipe card during the course of duty.”

This defence made it clear that the case against the responded could not be proved in the absence of the SOP. The arbitrator commented as follows in the ruling:

“The respondent failed to prove that the appellant intended to swipe and convert the transaction into local currency and if there was an intention to do so he failed to provide company policy or standard operating procedures that states that an intention is an

offence. “

It was in the light of the above that the arbitrator for that there no evidence to prove the offence or that intention to swipe without swiping is an offence in terms of the Code of Conduct.

It is important to note that the respondent was facing Group IV Offences ie dishonesty and other related offences of the NEC Employment Code of Conduct which reads: “Falsifying or changing any document with fraudulent intent or attempting to do so

including clocking of other employee card.”

This charge is not applicable to the present set of facts.

Unlawfully taking of property with the intention of permanently the company of the use of such property. Again, this charge is relevant to the case at hand. The respondent did not steal from anyone.

The other species of the charge as per Group IV offence is

Knowingly aiding or assisting the unlawful taking of property stated above. Again, this is not relevant taking into account the facts of the present case. The aspect of the charge is:

Giving or receiving or attempting to give or receive any bribe or inducing any person to perform a corrupt act.”

It is again abundantly clear it is not applicable to this case.

The charge as formulated in case was somewhat different from the Group IV offences as outlined above. That she was given a bank card by Yolanda whilst she was serving a customer who was buying USD with the intention of swiping ZWL in exchange for USD. That she placed the card on top of cash drawer whilst Yolanda was packing groceries for the customer. It is alleged that after some time she handed the card back to Yolanda. It was further alleged that there is an established procedure that a till operator is not

allowed to be in possession of cash, cellphone or bank card. The allegations are different from the ones listed in Group IV charges.

Whether or not the arbitrator misdirected himself in failing to find that the respondent had an intention to swipe ZWL and obtain USD

The conduct of the respondent is not consistent with someone who wanted to swipe ZWL in exchange for USD. She had given the bank card to some guard by the name

Yolanda so that she can give it to a relative who wanted to use it. No one can dispute this because when Yolanda brought it, she refused to accept it and her that the reason she called was for her to pack groceries for the customer and that the relative was yet to

come. She then placed the card on top of cash drawer and later gave it to Yolanda. There is no evidence that someone intercepted the transaction and failed to swipe. She made her own conscious decision to return the card to Yolanda at no one’s instigation. She dealt with the card openly by placing it on top of a drawer. She might have erred by not handing the card to Loss Control department but she did not keep the card on person and there no illicit dealing with the card.

As indicated earlier on there has been a CCTV Video footage allegedly showing some suspicious manner in which respondent received the bank card unfortunately it was not part of record before the arbitrator of before this court.

In the premises the arbitrator’s finding that there was no evidence to prove intention to swipe ZWL for USD cannot be faulted especially if there no such charge Group IV

offences.

In view of the foregoing the appeal is bound to fail.

COSTS

The respondent had prayed for costs at attorney client scale. It is apparent the prayer for costs at a higher scale had been made with the hope that all the points in limine would

succeed. The appellant’s case cannot be considered as hopeless or noted in order to

cause annoyance to respondent. It is my considered view that the ordinary scale would meet the justice of the case.

DISPOSITION

Wherefore it is ordered as follows:

The Appeal be and is hereby dismissed.

The Appellant shall bear the Respondent’s costs of suit.

Matsikidze Attorneys – at -law, Appellant’s Legal Practitioners Tembani Gomo Law Practice, Respondent’s Legal Practitioners