Zimbabwe Electricity Supply Authority Holdings (Private) Limited v Obson Matunja

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 20TH OCTOBER, 2022 AND 31ST MARCH, 2023
JUDGMENT NO. LC/H/105/23
CASE NO. LC/H/101/20
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 20TH
OCTOBER, 2022
AND 31ST MARCH, 2023

In the matter between:-

ZIMBABWE ELECTRICITY SUPPLY
AUTHORITY HOLDINGS (PRIVATE)
LIMITED

Versus

APPELLENT

OBSON MATUNJA

RESPONDENT

Before The Honourable L. Makamare, Judge:

For : Mr N.M. Phiri (Legal Practitioner) with him B. Mahuni
Appellant

For : Mr A.K. Maguchu (Legal Practitioner)
Respondent

MAKAMURE J:

This is an appeal against a decision by a Disciplinary Authority (DA) appointed by the appellant. (In this judgment the terms DA and Tribunal/Lower Tribunal will be used interchangeably). The respondent is an employee of the appellant. Misconduct charges were preferred against him. Disciplinary proceedings were conducted against him by the DA. At the conclusion of the proceedings the DA acquitted the respondent. The appellant was aggrieved by that outcome and has noted an appeal against that decision. The following are the grounds of appeal and I quote:


“1. The Disciplinary Authority misdirected itself and subsequently erred at law in finding that theft and fraud had not been proven in the fact of evidence submitted by the employer regarding unaccounted fuel coupons.

2. The Disciplinary Authority erred at law in acquitting the respondent of the charge of misrepresentation on the basis that the appellant had failed to prove malice.

3. The Disciplinary Authority grossly erred at law in acquitting the employee in respect of the alternative charge even after finding that the manner of records used was not in compliance and far below the standards, principles and code of ethics as set by the Institute of Internal Auditors in Zimbabwe.

4. The Disciplinary Authority erred at law by admitting into evidence documentation that failed to meet the minimum standard as required from an employee with the experience and stature of Dr Matunja being diary extracts even after admitting that such evidence was not acceptable in the circumstances.

5. The Disciplinary Authority erred at law in imposing a penalty of ‘caution and discharge’ in respect of a charge in which the Disciplinary Authority acquitted the employee.

6. The Disciplinary Authority erred at law in imposing a penalty of ‘caution and discharge’ for a serious offence which warranted dismissal.

7. The Disciplinary Authority erred at law in failing to notify the parties of the right and procedures of filing an appeal against his decision.”

The Charges

The respondent was charged for violating sections 4(a) and 4(d) of the Labour (National Employment Code of Conduct), Regulations, Statutory Instrument 15 of 2006 (S.I. 15/06) and section 45 of the Public Finance Management Act, Chapter 22:19. He was charged along the following lines:

‘Count 1

1. During the period between January 2018 and December 2019, you or through persons reporting to you, requested from the management Services Officer and were issued with fuel coupons totalling 23.260 litres which were meant for use in the company’s operations. Investigations into the utilization of the 23.260 litres of fuel revealed that, you issue 14.080 litres of fuel to various employees for use towards the company’s business and in particular for use in the company’s vehicles. You however failed to account for the balance of 9.180 litres, giving reason to conclude that you converted this quantity towards your personal use or he use of another person other than company or the company’s vehicle without authority.

2. Your conversion of the fuel meant for the company’s operational use to your personal use or that of another person constitutes theft or fraud, a serious misconduct as set out in section 4(d) of S.I. 15/2006.

Count 2

3. Between September 2019 and February 2020 you, with the full knowledge that the vehicle MAZDA BT 50 with the Registration Number ABC 9160 was off the road and that the said vehicle was under repair, continued to request for fuel, issued coupons for purported refuelling of the said vehicle, a clear case of misrepresentation to the responsible authority being Management Services

Executive in the Chief Executive Officer’s office.

In view of your knowledge that the said motor vehicle was being repaired at the ZENT workshop, you had the duty to make full disclosure that the fuel so requested was not for the refuelling of the particular vehicle, and why, in the absence of such a vehicle, it was necessary to issue fuel to the particular user. As a result of the misrepresentation, the company was prejudiced of 4.440 litres and same has not been recovered.

4. Your omission to disclose the particular facts and your continued requisition of fuel under such circumstances amounted to conduct inconsistent with your duty of full and candid disclosure which is implied in your contract as the Head Group
 Internal Audit and custodian of the company’s internal control systems. Further, your failure to account for fuel issue to you is inconsistent with your dual duties under Section 45 of the Public Finance Management Act (PFMA) to ensure that
 the system of financial management and internal control established for the company is implement and to safeguard the assets of the company.

Additional or Alternative 3\textsuperscript{rd} count

5. The above facts in the two instances show that you, as the Head of Group Internal Audit, performed your work in a grossly inefficient way, far below the standards, principles and code of ethics as set by the Institute of Internal Auditors Zimbabwe.

You failed to demonstrate integrity, competence and due professional care as well as failing to establish systems and procedures credible enough to be auditable and sufficiently robust enough to prevent loss to the company, a condition implied in your terms of employment. In particular, your failure to account for the 9 180 litres of fuel issued to your department as stated above violated your obligation to maintain the standards, principles and the Code of Ethics as set by the Institute of Internal Auditors as required of you by section 50 (7) of the Public Finance Management (General) Regulations S.I. 135 of 2019.’

Before the Disciplinary Authority

Evidence was led by both sides before the DA. After hearing all the evidence, the following were the factual findings made by the DA.

On count 1 the DA found merit in the challenge raised by the respondent with respect to the credibility of investigations which were conducted on behalf of the appellant. In coming to that finding the DA relied on the authority of principles on the standard of proof in civil matters, laid down in the case of Millar v Minister of Pensions [1947] 2 ALLER 372 - 374 which provides that for evidence led by the one who alleges to discharge the requisite onus, which is proof on a balance of probabilities:

“It must carry a reasonable degree of probability but not as high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we can think it more probable than not’”


The DA found that the evidence of one Chihanga a witness for the appellant, fell below the requisite standard. Chihanga testified in support of the theft or fraud of 9180 litres of fuel. The DA found that Chihanga conceded that during his (Chihanga’s) investigations he made numerous errors. Some of the errors include that:

(i) ‘Some information on the draw down given in the employer’s evidence was missing;
(ii) There was reference to “an error on the date”
(iii) Typing errors in reference to one of the inconsistencies in the employer’s case
(iv) When asked to identify the requisition relating to the 29th November issue the witness responded ‘I cannot locate and I may need to cross check.’

The DA found that while Chihanga conceded that there were 2 errors out of 100 in his evidence, in fact there were more errors (page 23 of the record). The DA doubted Chihanga’s evidence and could therefore not rely on it.

It was the DA’s further finding that in supplementary submissions filed on behalf of the appellant, the amount of the missing fuel had been reduced from 9108 litres to 8790 litres without any explanation and without an amendment to the charge sheet.

The DA also found it damaging that Chihanga admitted to being unqualified to audit the transactions in question. It was therefore difficult for the DA to sustain the credibility of the evidence led on behalf of the appellant/employer. The DA found that the fact that the respondent acknowledged having received the coupons both for himself and his subordinates did not amount to an admission of theft and fraud. The following is part of what the DA said;

“... Considering the contradictions in many parts of his testimony, reference to errors during photocopying or to the absence of serial/coupon numbers on various requisitions, and his repeated failure to locate source for the information on his own report, I am inclined to give a benefit of doubt to the respondent in count 1.

32. I am inclined to agree with the employee who, in his Supplementary Closing Submissions argues that the employer failed to prove as a matter of fact that the fuel was not used in operations. To sustain the allegation of theft and fraud, the employer ought to have at least brought in a few employees who could testify that they did not receive the fuel that they were entitled to from the employer, by virtue of their Contract of Employment. The employer did not do so, and that seriously damages the strength of its case in respect of Count 1.”

The DA found that the respondent used his diary to make entries as a record of how the fuel coupons were used and that this may not have been the best way to record the usage. The employer on the other hand as the DA further found, had failed to show ‘a specific fuel distribution system which the respondent could have relied on’. While the diary extracts may not have been the best way to keep records, it was the DA’s view that they were relevant to the respondent’s case and admissible’. In adopting this stance, the DA relied on the authority of LH Hoffman and D.T. Zeffert, South African Law of Evidence. Reliance was also placed on the case of S v Mtsweni 1985(3) SA 344 which case unfortunately I could not get.

A second witness gave evidence in support of the allegations against the respondent. In assessing this second witness’ evidence the DA found that there was no evidence proving theft or fraud alleged to have been committed by the respondent.

In conclusion to the findings on count 1 the DA found that the evidence of Chihanga was fraught with numerous inconsistencies and shortcomings; the quality of investigations and qualifications of the investigating team to carry out the audit were questionable; the competence of the investigating team was not established and the quantity of the stolen fuel coupons was not established. On the other hand the DA found that the explanation given by the respondent though of ‘debatable quality, could not be totally dismissed’. In other words, the probabilities favoured the respondent’s case.


On count 2 the allegations were that the respondent requested fuel for a motor vehicle which was off the road at the material time. The requests amounted to misrepresentation with the result of prejudice to the employer in the amount of 3 440 litres of fuel.

From the facts it is common cause that the vehicle MAZDA BT 50 Registration Number AC 1960 was duly allocated to one Lilly Mutandadzi (Mutandadzi), a manager with the appellant. Mutandadzi was entitled to fuel allocation for use in her duties for the benefit of the appellant. Whether the vehicle was on or off the road the fuel coupons collected for her were given to her for this purpose.

Evidence which was led on behalf of the appellant through one Marandu established what is common cause. Marandu also stated that since the vehicle was off the road for a long time the respondent should have removed the vehicle from the list because it was a non-runner. The DA found that while the intention of the respondent in acquiring fuel was for the furtherance of company business, the act of getting the fuel using a vehicle that was grounded was an act of dishonesty. The respondent’s own records do not show that he made special arrangements for Mutandadzi to use her personal vehicle. So, while the books showed that the fuel was used for the MAZDA BT 50, that was in fact not true. The DA found that the respondent misrepresented to the appellant in how he collected fuel for Mutandadzi. The respondent’s evidence on the other hand was that he had advised the appellant that the vehicle allocated to Mutandadzi was off the road but there was no proof placed before the DA that this was so. The DA found that in all this, the employer did not prove mala fides on the part of the respondent.

After assessing all the evidence with respect to this count the DA concluded that while there was misrepresentation by the respondent, there was no bad faith on the part of the respondent and the fuel coupons in question were passed on to the appropriate beneficiary for the benefit of the employer, the misrepresentation by the respondent under the circumstances was excusable. For that reason, the DA acquitted the respondent on Count 2.


On the Alternative Count 3 the respondent was charged with gross inefficiency in the performance of his work with specific reference to the unaccounted for 9180 litres of fuel. The DA found that that figure had not been proved. Further the figure had been revised unilaterally by the employer to 8790 litres. The DA noted that the respondent could have used a better way of recording given his level of education and that entries in a diary or diaries could not be deemed efficient and professional. However the DA found that there were no clear ‘guidelines as to the employer’s expectations or requirements in respect of acceptable accounting formats.’ The DA also considered the fact that since ‘the employee himself worked under the supervision of superiors and a Committee of the Board, it would be somewhat unfair to make him totally or solely liable for the subject shortcoming.’

The DA also considered the appellant’s assessment of the respondent’s performance for the years 2017 and 2018 where he (the respondent) scored 90% and 74.3% respectively and that these scores do not speak to gross inefficiency alleged in the proceedings. The DA bemoaned the absence of the employer’s expectations of the respondent’s performance through which the alleged misconduct could have been assessed. It was the DA’s finding that under the circumstances the employer had failed to prove the charge of gross inefficiency against the respondent.

Having acquitted the respondent on the 3rd and alternative charge the DA proceeded to ‘caution’ the respondent for recording the fuel allocation in a diary instead of a better accounting method. The DA then handed down a penalty of ‘Caution and Discharge’ with respect to the 3rd count. Finally, the DA acquitted the respondent on all the three charges.

**This Appeal**

The grounds of appeal have been set out. The question to ask is: was there sufficient evidence, on a balance of probabilities, to convict the respondent of:

(i) theft or fraud;

(ii) misrepresentation or alternatively; OR alternatively


(iii) gross inefficiency ?


Preliminary Issues

At the initial commencement of the hearing, two preliminary issues were taken on behalf of the respondent. These were that:

(i) The appellant had no right of appeal under Statutory Instrument 15/2006; and

(ii) Grounds of appeal 1,5,6 and 7 were, for one reason or other, not properly before the court and should therefore be struck out

The Court considered the first preliminary issue in judgment LC/H/185/21 and found in favour of the respondent, that is, it had no right of appeal. In view of that finding the Court found it unnecessary to consider the second preliminary point raised as it held the view that the appeal was not properly before it. The judgment was taken on appeal to the Supreme Court. The Supreme Court in judgment SC 73/22 allowed the appeal in terms of the following order:

1. ‘The appeal is allowed with each party to bear its own costs.’

2. The judgement of the court a quo is set aside and substituted with the following:
   “The preliminary objection that the appellant has no right of appeal to the Labour is hereby dismissed.”

3. The matter is remitted to the Labour Court for continuation.

4. The registrar of this Court is directed to issue a corrigendum removing the judgement *Pioneer Transport vs Douglas Mafikeni SC 45/17 (2017 (2) ZLR 71)* from the list of Supreme Court judgments and asserting that the authentic judgment of this Court is *Pioneer Transport vs Douglas Mafikeni SC65/18*.”

The Court will now consider the 2nd preliminary point on the propriety or of the mentioned grounds of appeal which as already noted was not determined initially. At this point another new or 3rd preliminary was also raised on behalf of the respondent. This will be discussed later in this judgment.


I will now deal with the second preliminary issue. In view of the fact that the DA acquitted the respondent of all the changes I will consider appeal grounds 5 and 6 first.
 The DA acquitted the respondent but then imposed a penalty of ‘caution and discharge’. Once an offender had been acquitted, there was no penalty to consider. There is therefore also no reason for the appellant to suggest that a stiffer penalty or the penalty of dismissal would have been appropriate.

I will now consider ground 1 and other related issues. The argument was as to which element of theft the ground related to. The argument continued to the effect that the fact that the fuel coupons went missing did not mean that there was theft.

In response Mr Phiri argued that in ground 1 the challenge being averred on behalf of the appellant is that the DA mistook the facts and consequently reached a wrong conclusion. Mr Phiri submitted that as long as there is substance in the grounds, there is no need for ground 1 to be struck out. Mr Phiri referred the Court to the case of *Jainos Zvokusekwa vs Bikita Rural District Council SC 44/2015*. Mr Phiri argued that grounds of appeal 3,5 and 6 are associated with each other. In view of this Mr Phiri urged the Court to be guided by the case of *Dalny Mine vs Banda 1999*.

*(1) ZLR 220* and not determine the matter on the basis of technicalities.

The third preliminary issue was that the appellant had used a wrong form and therefore the matter must be struck off.

Mr Phiri opposed the preliminary point raised. He drew the Court’s attention to the wording of the order by the Supreme Court, that is, the matter was for ‘continuation.’ Mr Phiri averred that the issue now being raised ought to have been raised at the initial sitting. Mr Maguchu responded arguing that a preliminary issue can be raised at any time. Besides, Mr Maguchu, continued, the question of the correct form is fundamental and cannot be ignored. Mr Maguchu referred the Court to the case of *Zimbabwe Open University vs Dr O. Madzombwe HH 43-2009* in support of his argument.

In the case of *Jainos Zvokusekwa vs Bikita Rural Council SC44/2015* the
 Supreme Court stated that:
 “One must, I think, be guided by the substance of the grounds of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner. If it is clear that an appellant is critic a finding by an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper…”

I am of the considered view, having considered what the Supreme Court stated in the Zvokusekwa case (above), that while there may be issues with the grounds appeal 1 to 4, one cannot say that there is no basis upon which the grounds have been raised. For that reason, the grounds are properly before the Court. On the issue of the proper form to have been used, it is trite that the appropriate form should always be used in compliance with the rules. However note that this is an issue which should have been together with other issues, in the very beginning of the hearing, instead of raising it at a point where the matter is expected to continue and hopefully reach finality. While a preliminary point can be raised at any point during proceedings, that does not entitle parties to deal with issues in a piece meal fashion. This manner of dealing with matters is discouraged. I can do no better than refer to the case of Lesley Marsh (Pvt) Ltd & Ors vs African Banking Corporation of Zimbabwe (Pvt) Ltd & Anor S 4/19 where the Supreme Court stated that:

“I merely highlight the development in passing as it is one of the instances in which the determination of the dispute between the parties has been fragmented. I will highlight the other instance as I frown at the piecemeal fashion in which this dispute has been presented and is proceeding.

Whilst the issue of consolidation of the hearing of the two applications does not arise in this appeal, I raise the issue because, had that practical course been taken, this appeal would not have arisen and again the piecemeal fashion in which this dispute proceeded would have been minimised or avoided. This is yet another incident in which the determination of the dispute between the parties was fragmented. It is undesirable that dispute, especially commercial disputes such as the one between the parties in casu, be dealt with in a piece meal fashion as this tends to unnecessarily protract the resolution of the dispute.”


I respectfully associate myself in full with the above remarks. It is not equitable for this


Court to start all over again and entertain a preliminary issue at this stage in the proceedings. Further there appears to be no prejudice suffered by the respondent. For that reason the preliminary issue is dismissed.

Having dismissed the preliminary points that had been raised on behalf of the respondent, I will proceed to consider the merits of the appeal.

Merits

It is not disputed that the respondent used to collect and distribute fuel coupons to his subordinates and himself. On such subordinate was Mutandadzi. Mutandadzi was allocated a motor vehicle, Mazda BT 50 Registration Number ABC9160 for use at work. At the material time the said motor vehicle was off the road and being repaired. It appears the practice was that fuel coupons were allocated to a motor vehicle and not necessarily to an individual. While the vehicle in question was off the road the respondent continued to allocate it fuel coupons. The fuel coupons would be given to Mutandadzi for the appellant’s business. It also appears not to be in dispute that in the absence of the respondent fuel coupons would still be obtained to ensure that the appellant’s business was conducted.

9180 litres of fuel were allegedly found not to have been accounted for. 3144 litres were allocated to Mutandadzi through the vehicle which was off the road. These findings resulted with the respondent facing the charges which have been articulated above, the acquittal of the respondent and the appeal now under consideration.

Appellant’s Case

Mr Phiri who appeared on behalf of the appellant argued that the DA used wrong principles of law when he acquitted the respondent of the charge of theft or fraud. Mr Phiri argued that the DA used a higher standard than should have been used. For that reason, Mr Phiri submitted that the charge of theft or fraud was proved on a balance of probabilities. On the 3rd and alternative charge Mr Phiri argued that the
 DA ought to have convicted the respondent of gross inefficiency. This was so, Mr Phiri argued, because the respondent used personal diaries to record usage of the fuel coupons which he got from the appellant. Mr Phiri also criticised the DA for imposing a penalty of ‘Caution and Discharge” where he had acquitted the respondent. Mr Phiri submitted that there was merit in the appeal.

Respondent’ Case

Mr Maguchu opened the address by referring to there having been bad blood between the Executive Chairperson and CEO of the appellant company to the extent that there was a vow that the respondent would be dismissed. This bad blood averred Mr Maguchu influenced the investigations which were conducted against the respondent by one Chihanga. This was mentioned in the earlier tribunal. However the lower tribunal considered the real evidence which was tendered in support of the allegations and made the decision which is now the subject of this appeal. I will also be guided by the same evidence which was relied upon by the lower tribunal.

With respect to the first ground, namely the failure to account for fuel coupons leading to a charge of theft or fraud, Mr Maguchu argued that failure to account was not theft. He argued that there was no evidence in support of the offence. On the second ground Mr Maguchu argued that there was no misrepresentation. It was further argued that with respect to the motor vehicle ABC 1960, it was known that the vehicle was not in use and the user had to use her husband’s vehicle or a hired one. It was also known argued Mr Maguchu, that for purposes of getting the fuel coupons, the registered vehicle in question had to be used.

With respect to the 3rd ground Mr Maguchu argued that the evidence used, that is extracts from the respondent’s diaries was admissible evidence. The question of the diary extracts also makes the subject of ground 4. On grounds 5 and 6 it was argued that these were academic. In view of the arguments Mr Maguchu submitted that there was no merit in the appeal and that it ought to be dismissed with costs.
 In response Mr Phiri argued that, with respect to ground 2 on misrepresentation, there was no evidence showing that the fuel coupons were given to Mutandadzi. Mr Phiri insisted that the appeal should succeed and the decision of the DA be set aside.

**Analysis**

The respondent was charged with the offences for contravening S4 (a) and S4 (d) of S.I. 15/2006. The relevant sections of Statutory Instrument 15/2006 provide as follows:

**“Misconduct**

*An employee commits a serious misconduct if he or she commits any of the following offences:*

(a) *Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; or*

(b) *….*

(c) *………*

(d) *Theft or fraud; or*

(e) *to (h) ….”*

Theft is defined as

*“Unlawful taking or appropriation with intent to steal a thing capable of being stolen.”*

And fraud is defined as

*“Unlawful making, with intent to defraud, a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.”*

**See Feltoe: A GUIDE TO ZIMBABWE CRIMINAL LAW**

And S45 of the Public Finance Management Act Chapter 22:19

*“45 Responsibilities of employees of public entities*

*An employee of a public entity shall to the extent that it is competent for the employee to do so-*

(a) *ensure that the system of financial management and internal control established*

*for that public entity is implemented:*

(c) *take effective and appropriate steps to prevent any irregular expenditure and fruitless and wasteful expenditure and any under-collection of revenue due;*

(d) *comply with those provisions of this Act applicable to the public entity:*


(e) be responsible for the management, including the safeguarding, of the assets of the public entity and the management of its liabilities.”


It was necessary for the appellant to satisfy the essential elements of the above offences I order for conviction on any one of them to be sustained. Theft ordinarily stands on its own. So does fraud. The fact that they were levelled as one offence does not in my view remove the need to identify and prove each of the two offences. The evidence falls far short of the requirements even on a balance of probabilities. It is not disputed that a certain number of coupons were obtained by the respondent or whoever else was authorised to do so. The taking of coupons was lawful. The intention unless and until proved otherwise, was for furtherance of the appellant’s business. Thus theft was not proved. Equally when a comparison is made between the allegations against the respondent, the evidence and the definition of fraud, that charge has not been proved.

With respect to S45 of the PFMA, subsection (a) provides that the employee shall

... “ensure that the system of financial management and control established for that public entity is implemented.” The DA found that the evidence led had numerous inconsistencies. He also found that the amount of unaccounted for fuel was not ascertained. There appears, to have been no system established for the purpose of recording the fuel coupons. In the absence of an established system of financial management and control, I think it would be difficult to establish exactly what the employee did wrong. The DA had the privilege of assessing the witnesses which privilege this court does not enjoy.

In the case of *Munyaradzi Kereke vs Francis Maramwizde and Another SC86/21* the Supreme Court stated that:

> “It is trite an appellate court is slow to interfere with the factual findings of a lower tribunal. The circumstances under which this Court will interfere with the findings a quo was clearly enunciated by this Court in RBZ v Granger & Anor SC 47/09 as follows: “There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. A misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.” (See also Zvokusekwa vs Bikita Rural District Council SC 34/15).
In *Zimre Investment Ltd vs Saintcor (Pvt) t/a vs Track & Anor SC 59-16* p11 paragraph 36 it was held that:

“The position is now settled that an appellate court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion that the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. Where there has been no such misdirection, the appeal court will not interfere. This position was aptly captured by this court in *Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (S)*. At 670, Korsah JA remarked:

“The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court case purely on a finding of fact unless I 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.”

It is also an established principle that an appellate court is slow to interfere with the findings of credibility of the witnesses by a lower tribunal. This principle was well captured in the case of *Gumbura vs The State SC 78/14* at p 7 where the Court remarked as follows:

“As regards the credibility of witnesses, the general rule is that an appellate court should ordinarily be loath to disturb findings which depend on credibility. However, as was observed in *Santam BPK vs Biddulph (2004) 2 All SA 23 (SCA)*, a court of appeal will interfere where such findings are plainly wrong. Thus, the advantages which a trial court enjoys should not be overemphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.”

I am in respectful agreement with what the Supreme Court stated above. In the present case the observations of the lower tribunal cannot be ignored. The lower tribunal had the privilege of hearing and assessing evidence of the witnessed. The one witness actually conceded that they were not qualified to conduct the audit in question. The Tribunal can therefore not be faulted for doubting the credibility of that testimony. The probabilities favoured the testimony of the respondent. The Tribunal cannot be held to have used a higher standard of proof than proof on a balance of probabilities.


On the question of misrepresentation of where the coupons were going, they were given to Mutandazi. The appellant did not lead evidence to the contrary. It was quite interesting to note that Mr Phiri expected the respondent to lead evidence to the effect that the said coupons were given to Mutandazi. The Respondent’s position was that the coupons were acquired under the registered vehicle, Mazda ABT 1960, and given to Mutandazi. The appellant alleged that this was not position. The appellant ought to have proved this. It is trite that he who alleges proves. See **Ok Zimbabwe Limited vs Clifford Gotora SC 122/21**.

With respect to the allegation of gross inefficiency the DA found that there was no standard against which to measure the respondent’s alleged inefficiency. In **Fraser Muyaka vs Bak Logistics (Pvt) Ltd SC 39/2017** the Supreme Court had occasion to distinguish between inefficiency and incompetence.

The following is what the Supreme Court stated:

“Thus an inefficient employee may be competent in so far as having the necessary skill or ability to do his work but does not do it efficiently due to dereliction of duty, laziness, carelessness, negligence, lack of zeal, lack of personal drive, not being thorough, procrastination of performance of duties or some other personal traits which hinders him from doing his job efficiently and make use of resources optimally.”

None of what was stated in the **Muyaka case** (above) was proved against the respondent. Thus it cannot be said that the respondent was grossly inefficient in the performance of his duties.

Having stated the above, I find no error on the part of the DA. There is no reason for this Court to interfere with the findings of the DA. I have also not found any merit in all the grounds of appeal. It is trite that a court of appeal is slow to interfere with the findings of a lower tribunal unless is necessary to do so. ( **Hama vs NRZ above; Mary Mukonyora vs Municipality of Chitungwiza and Two Others SC 109/21**).

In view of the foregoing the appeal fails.


Accordingly, it is ordered that:

The appeal be and is hereby dismissed with costs.

Muvingi and Mugadza, Appellant’s Legal Practitioners Maguchu and Muchada, Respondent”s Legal Practitioners
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