Zimbabwe National Water Authority (ZINWA) v Gladys Gonde & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/363/16
HELD AT HARARE 3 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/363/16

HELD AT HARARE 3 MARCH 2016				CASE NO LC/H/1127/15

& 10 JUNE 2016

In the matter between:

ZIMBABWE NATIONAL WATER AUTHORITY (ZINWA)		Appellant

And

GLADYS GONDE							1st Respondent

And

EDDIAS NAGO								2nd Respondent

And

MAKOSA JIMU							3rd Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr J Dondo (Legal Practitioner)

For Respondents		Ms C Mapanda (Legal Officer – ZEWU)

MURASI, J:

Respondents were employed by the appellant in various capacities.  Following an audit at appellant’s work place, it was discovered that a lot of property was missing.  This led to the arrest of the three respondents and several other employees at the appellant’s work place.   Disciplinary proceedings were brought against the three respondents and they were found guilty and a recommendation for their dismissal was made.  Respondents appealed to the Appeals Officer who confirmed the decision of the Disciplinary Committee.  The respondents took the matter to the labour officer and the matter was referred to arbitration.  The arbitrator found in favour of the respondents.  Appellant is disgruntled with that decision and has approached this court for relief.

Appellant’s grounds of appeal may be summarised as follows:

That the arbitrator grossly erred and misdirected himself by failing to dispose of the preliminary point raised by the appellant that respondents had waived their right to proceed with the conciliation proceedings.

That the arbitrator misdirected himself in making a finding which was not supported by evidence as the record showed that there was sufficient evidence to establish the guilt of the respondents and that the evidence of the “whistle blower” was not the only available evidence.

That the arbitrator erred in relying on the audi alteram partem principle as regards the evidence of the “whistle blower”.

That the arbitrator erred in setting aside the decision of the appellant to dismiss the respondents by citing case law which was not relevant to the conclusion arrived at.

That the arbitrator pointed to gross irregularities in the disciplinary hearing when such irregularities were non-existent.

That the arbitrator set aside the dismissal of the respondents without making a finding whether the respondents had been properly found guilty.

Mr Dondo for the appellant stated that he abided by the documents filed of record

and that the arbitrator had failed to dispose of the preliminary point that the respondents should have been deemed to have abandoned the proceedings by withdrawing their matter which was  pending before the Labour Court.  It was further submitted that the arbitrator had erred in making the finding that because the “whistle blower” had not been called to give evidence, appellant had breached the “audi alteram partem” principle.  Mr Dondo  argued that the appellant had not solely relied on the evidence of the “whistle blower” but other evidence including that of the warned and continued statement.  It was further stated that “whistle blowers” are usually not called to give evidence for various reasons.  It was further argued that the warned and cautioned statement in issue was given to the Disciplinary Committee during deliberations.  Mr Dondo submitted that the respondents were security guards and their conduct was inconsistent with the fulfilment of their duties.  It was argued that 1st and 2nd respondents were always carrying out duties at the same time and therefore connived to steal from the appellant. It was also argued that there was no splitting of charges as none was convicted of three charges.

Ms Mapanda, for the respondents, stated that the issue raised by the appellant that the arbitrator had not dealt with the point in limine was misplaced as the arbitrator was guided by the Terms of Reference agreed to by the two parties to the dispute.  It was submitted that the point in limine was not before the arbitrator and he was not obliged to deal with it as it had been smuggled into the proceedings by the appellant.  It was argued that there was no waiver on the part of the respondents as there was a Certificate of No Settlement and parties participated in the drafting of the Terms of Reference.  As far as the merits of the case was concerned, Ms Mapanda stated that she had requested for the warned and cautioned statement during the course of the hearing but it was not availed.   It was only availed after the proceedings and that Nago had challenged this statement in that it had not been made freely and voluntarily.  Ms Mapanda made the observation that this was not a confirmed warned and cautioned statement.  It was argued that the Disciplinary Committee had relied on the information of an anonymous caller whose evidence was inadmissible inn terms of section 27 of the Civil Evidence Act.  As far as the recovered items were concerned, it was argued that these were not in any way linked to the respondents and this was confirmed by the acquittal of the respondents in the criminal proceedings.  It was stated that the arbitrator had not erred in making the finding that he did.

Precedent shows that where a preliminary point is raised, a court or tribunal is enjoined to deal with the point before proceeding to deal with the merits of the case.  In casu, appellant alleges that the issue of respondents having filed an application with the Labour Court and thereby “abandoning” the conciliation proceedings should have been dealt with by the arbitrator.  It is further alleged that the respondents waived their rights to continue with the conciliation proceedings.  The facts show that respondents withdrew the application with the Labour Court and decided to proceed with the conciliation proceedings.  Was there a waiver of rights exhibited by the conduct of the respondents?  Clearly what the respondents were doing by filing an application with the labour Court was a furtherance of an enforcement of their legal rights.  Respondents did not categorically state that they were “abandoning” the conciliation proceedings.  That the respondents withdrew the application pending before the Labour Court was within their rights.  In fact, the respondents must have realised that in pursuing both avenues for a redress of their legal rights, they risked falling foul of section 124 of the Labour Act [Chapter 28:01].  Appellant has been unable to point to a legal provision which prevented the respondents from acting in the manner they did.  Further, appellant has not shown that the conduct by the respondents prejudiced the other party in any way.  In fact, a reading of the record does not show that the decision of the arbitrator on this point in limine would have had the effect of concluding the matter in one way or the other.  It is therefore the court’s view that the failure by the arbitrator to make a decision on the preliminary point did not affect the outcome of the proceedings and that ground of appeal is thus dismissed.

Turning to the merits of the case, it is important to have a look at the decision by the arbitrator in this respect.  The arbitrator makes the following finding:

“The evidence of the whistle blower to me is hearsay evidence.  Therefore admitting such evidence will result in a serious miscarriage of justice.  The anonymous person should have been called in the hearing as a witness to testify against the claimants and the claimants were also supposed to be afforded the opportunity to cross-examine him or her.  I agree with the claimant to the effect that by admitting the evidence of a “whistle blower” the respondent (appellant) violated the audi alteram partem rule.  It is clear that the evidence of the whistle blower” also played a crucial role in finding the claimants guilty of the acts of misconduct which to me was not fair at all.”

Precedent has shown that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection in that a reasonable court would not have arrived at the same decision on the same facts.  See Barros & Another v Chimpondah 1999 (1) ZLR 58 (S).  I will revert to this issue later in this judgment.  What was the nature of the evidence that was relied upon by the appellant to convict the respondents?  A summary of the “Findings of the hearing in respect the 2nd respondent reads as follows:

“He acknowledged to have written a statement to the police during the hearing.

The informant referred to by the complainant who incriminated Mr Nago to committing the crime was credible because the information given led to the recovery of some of the stolen items.

A warned and cautioned statement from the police by Edias Nago admitted to the crime and incriminated Gladys Gonde and Jimu Makoni.”

What does the record show about the evidence summarised above:  Mr Jiri the

complainant did not have any independent knowledge about the alleged commission of the offenses by the respondents.  The following is gleaned from the record:

“MR CHISHIRI	You mentioned that your evidence narrowed to Nago, where did you get that information?

MR JITI	I got it from Mr Mvurume and Mr Tapera together with the police.

MR CHISHIRI	You never investigated the matter yourself?

MR JIRI	Yes I did not.”

The evidence given by Mr Jiri was not based on personal knowledge as to how the

offence was committed.  It was based on reports given by investigators from appellant.  Mr

Mvurume, the investigator, also testified during the Disciplinary Committee hearing.  The following excepts from the record show that despite his positive assertions in his evidence-in-chief, there were loopholes which were shown during cross-examination:

“MR CHISHIRI		The issue of an anonymous caller came after a police report?

MR MVURUME	Yes

MR CHISHIRI	It is correct that the anonymous caller might have knowledge of ZINWA operations?

MR MVURUME	It might mean so

MR CHISHIRI	Confirm you did not receive the call yourself?

MR MVURUME	Yes I did not receive

MR CHISHIRI	Confirm that up until now you are not aware of the anonymous caller.

MR MVURUME	Yes I am not

MR CHISHIRI	Further confirm that you were only advised by someone else?

MR MVURUME	Yes.”

Clearly the evidence given by Mr Jiri and Mr Mvurume did not show that they had

independent knowledge.  What the two gave as evidence amounted to hearsay evidence by any stretch of imagination.  The “evidence” apparently came from this “informer”.  This is the evidence that was relied upon by the Disciplinary Committee.  The committee was of the view that since the information led to the recovery of property, it must be taken as credible. The question the committee should have asked themselves was whether there was a link between the commission of the offence and the respondents.  The committee sought to rely on the warned and cautioned statement made to the police by 2nd  respondent.  The said statement is supposed to have implicated the other respondents. However the statement clearly has problems of its own.  Firstly, it was not produced during the hearing but at the conclusion of the hearing.  Secondly, no evidence was led as to what circumstances it was made.  Thirdly, the persons who recorded the statement were not called to testify.  All these are confirmed by the evidence of Mvurume:

“MR CHISHIRI		You indicated that he admitted do you have proof to that effect

MR MVURUME	At present I did not have but I personally witnessed the investigations.

MR CHISHIRI		You only saw a statement by Nago?

MR MVURUME	Yes

MR CHISHIRI		Did you see him writing?

MR MVURUME	I did not see him?

MR CHISHIRI	Confirm you are not aware of the circumstances when such statements were written

MR MVURUME	No I do not know”

A reading of this dialogue clearly shows that the witness does not have independent

knowledge of the statement relating to the alleged admissions by Nago.  At the stage Mr

Mvurume was giving this testimony, the statement in question was not before the

committee.  The committee was therefore not aware of the contents of that statement.

The committee was relying on the hearsay evidence being given by Mr Mvurume who had

said that he had been shown the statement by the Police and noted what is contained.

Without delving into the procedure under which the committee decided to admit the

statement at a later stage in the proceedings, one should interrogate whether the

statement was admissible in the first place.  This was a statement made by 2nd respondent

when being interrogated by the police for the criminal charge of theft.  The witness had

stated that in that statement, 2nd respondent had implicated 1st and 3rd respondents.

Section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides:

“No confession made by any person shall be admissible as evidence against any other person.”

This is the prohibition that exists under the criminal law that such a statement

would only work against the maker provided that it was made freely and voluntarily without the maker being unduly influenced thereto.  Section 27 (3) (a) of the Civil Evidence Act deals does with the admissibility of similar statements and provides that it shall be inadmissible unless it is given by a person who saw or otherwise perceived the statement being made.  Mr Mvurume did not fall into any of the categories envisaged by the legislature.

The final point to be made in respect of the statement was the juncture it was admitted as evidence. I have already pointed out in the judgment that when Mr Mvurume was making reference to the 2nd respondent’s warned and cautioned statement made to the police, it was not before the Disciplinary Committee.  This statement only became part of the proceedings when all deliberations had been made.  The record shows the following:  On page 122 the findings of the committee are recorded and in those findings reference is made to the 2nd respondent’s warned and cautioned statement indicating that a copy is attached.  On page 123 of the record the committee pronounces a verdict of guilty on 2nd respondent.  On the same page, the committee requires the 2nd respondent to proceed to address it in mitigation.  The following exchange takes place:

“MR JINYA	As agreed before, we have called you to give you the verdict as well as allowing you to mitigate before the ultimate penalty.  The police report which was being mentioned by the complainant during the hearing proceedings was finally submitted but the committee looked at the merits of the case in its totality.

MS MAPANDA 	We would want to object (to) that report because it is not proper to bring in the documents now.  The hearing was closed and the complainant submitted the report to you without our knowledge and we feel it’s unfair.  The report should not be part of the proceedings since it was not submitted during the hearing.

MR JINYA	This was just for your information…”

The record does not show at what stage after the closure of the proceedings it

received the statement.  The committee does not state why it did not inform the

respondents that it had received the statement in question.  Apart from the statement

being inadmissible as already observed, fairness would have required that the respondents

at least know what was contained in that statement.  The statement had allegedly been made by 2nd respondent and purportedly implicated 1st and 3rd respondents.  At the close of the proceedings, it was not known to what extent 2nd respondent had implicated the other respondents.  I am of the view that respondents’ counsel was justified in objecting to the procedure that had been adopted by the Disciplinary Committee.

The evidence that was led by the appellant was similar against the respondents. The court has already commented on nature of the evidence regarding the “whistle blower.”  The evidence showed that Mr Mvurume did not receive the information but it was relayed to him by someone else.  This is the evidence that was heavily relied upon by the Disciplinary Committee.  The evidence did not at any time show the correction of the respondents with the commission of the offences.  The court enquired from Mr Dondo whether the dates on which the offences were committed and the response was in the negative.  Respondents were security guards and worked shift hours.  It would have been proper to allege that the offences were committed were known on those identified dates when the respondents were on duty.  Alas everything is left to surmise and conjecture.

Even the “evidence” of the “whistle blower” and the warned and cautioned statement is removed, as it must having regard to the serious flows, what evidence remains to link the respondents with commission of the offences?  I see none.  Was the Disciplinary Committee entitled therefore to convict and dismiss the respondents in the circumstances? Was the decision arrived at by the Disciplinary Committee justified?  I think not.  I am of the view that this is one of the typical cases referred to by GILLESPIE J in S v Jojo Mbiri HH 239/98 where he had this to say:

“In my estimation this is a classic example of the court massaging the evidence in order to have it fit a pre-conception.  That is not the way to do things.  It should scarcely need saying that one must examine the evidence first and see what it proves rather than arriving at a pre-conception first, and see whether it can, no matter how, be supported.”

I return to my earlier question as to whether the decision of the arbitrator can be faulted in the circumstances.  As clearly shown by the record, the evidence adduced by the appellant was insufficient to prove the charges against the respondents.  The grounds of appeal raised by the appellant have all been addressed where it has been shown that the appellant did not show the link between the commission of the offences and the respondents.  The arbitrator had not therefore erred in finding that the respondents were thus not guilty of the charges preferred against them.  The arbitrator’s findings in this regard are unassailable.

In conclusion, the court is of the view that the appeal is without merit and ought to be dismissed.  The court makes the following order:

The appeal, being without merit, be and is hereby dismissed.

The arbitral award of Honourable Chikwanha be and is hereby upheld.

Appellant to pay respondents’ costs of suit.

Dondo & Partners, appellant’s legal practitioners