Zimbabwe Electricity Supply Authority Holdings (Pvt) Ltd v Moffat Mkusa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/756/2016
HARARE, 17 OCTOBER 2016 &
CASE NO LC/H/141/2016
2 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/756/2016

HARARE, 17 OCTOBER 2016 &				        CASE NO LC/H/141/2016

2 DECEMBER 2016

ZIMBABWE ELECTRICITY SUPPLY 				        APPELLANT

AUTHORITY HOLDINGS (PVT) LTD

MOFFAT MKUSA							      RESPONDENT

Before the Honourable G.Musariri, Judge

For the Appellant	Mr T Sibanda  (Attorney)

Or the Respondent	Mr B Ndhlovu  (Attorney

MUSARIRI J:

On 27th August 2015 at Harare, the appellant’s Disciplinary Committee acquitted respondent of misconduct after a disciplinary hearing. The appellant then appealed to this court against the verdict. The respondent opposed the appeal. The appellant’s case was that the committee grossly erred in assessing the evidence and thus came to a wrong conclusion/verdict.

The appellant’s case is founded upon an audit report which concluded that:

“The NTC warden Mr Moffat Mkusa defrauded the National Training centre of a total amount of $8 713-20. There was a breakdown of accounting and supervisory controls over case receipts from customers.”

It was alleged that on specified occasions the respondent receipted cash from customers. The money was not banked or accounted for. Filed of record are several receipts and invoices. Some are signed. Some are in the names of certain employees. The snag was that there was nothing in the respondent’s name. He denied that he was the person who receipted the amounts in question. Given this stand-off it was necessary to have expert or other evidence confirming that the respondent was the one who issued and signed the receipts. None such evidence was tendered.

The appellant’s case implied that the respondent was the only person who receipted these amounts. Clearly he was not. Other employees are named in the receipts/invoices such as “Nyamadzawo”, “Maserenga”and “Zawe”. On that basis one cannot hold the respondent to account where he is not named but his colleagues are. Such a case would only arise if there was proof of corrupt collusion between him and his colleagues. That case was not made or proved.

The appellant argued that the respondent was departing from his case at the disciplinary hearing. The minutes are filed of record. Therein he admitted receipting the monies involved. But the point is that he stated he forwarded the monies he receipted to Maserenga and later on to Muteera. That explained his not-guilty plea. The complainant did not call the latter persons to confirm or contradict the respondent’s evidence. This omission was not lost on the disciplinary committee. In its deliberations the committee noted that:

“-	The committee observed that investigations into the matter were not adequately done to prove on a balance of probability that the accused actually pocketed the monies.

They felt that the case presenter should have called Mr Maserenga and his witness the accountant to confirm whether or not the accused remitted any monies to them. It however seemed as if the case presenter was just content with the evidence he had, such that he did not deem it necessary to call the accountant to testify.”

I consider that the committee correctly assessed the evidence. The state of the evidence required a rebuttal of the respondent’s defence. The rebuttal could have come through Maserenga or the accountant. It did not. Accordingly the committee, by a majority vote, rightly found that the charges were not proved. Thus the appeal cannot succeed.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G Musariri

J U D G E