Zimbabwe Revenue Authority v Kudakwashe Marecha

### Preamble
JUDGEMENT NO LC/H/94/23
CASE NO LC/H/363/22
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/94/23
HARARE, 6 OCTOBER, 2022
CASE NO. LC/H/363/22
AND 15 MARCH 2023
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IN THE LABOUR COURT OF ZIMBABWE
HARARE, 6 OCTOBER, 2022
AND 15 MARCH 2023

In the matter between;

ZIMBABWE REVENUE AUTHORITY
And

KUDAKWASHE MARECHA
Before the Honourable E.MAKAMURE J

For the Appellant : Mr T.L. Marange (Legal Officer)
For the Respondent : Mr A. Mugwanju (Trade Unionist)

MAKAMURE J:

Introduction

This is an appeal against the decision of a labour officer acquitting respondent from wrongdoing. The appellant employer was aggrieved by that decision. It appealed to this Court. The following are the grounds of appeal:

1. The Honourable Labour Officer erred and misdirected herself in finding that the Appellant had not managed to prove that Respondent facilitated the importation of the goods into Zimbabwe without duty being paid.
2. The Honourable Labour Officer erred and misdirected herself by delving into the issue of malice by crew members when same was never before her.


3. The Honourable Labour Officer erred and misdirected herself in finding that the Respondent did not commit an act which is inconsistent with the express or implied conditions of the contract of employment.

4. The Honourable Labour Officer erred and misdirected herself in holding that the witness statements were inadmissible.

5. The Honourable Labour Officer erred and misdirected herself in holding that Respondent could not have committed the offence since he was off duty.’

Background

The respondent was employed by the appellant as a Revenue Specialist. He was stationed at Chirundu Border Post. Allegations of violating provisions of ‘Category D25’ of the applicable code were levelled against him. Disciplinary proceedings were commenced but they were not concluded for various reasons. The matter was therefore referred to a labour officer in terms of S101(6) of the Labour Act, Chapter 28:01 (the Act).

S101(6) provides as follows:

“(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety three,

And section 101(3) provides that:

(3) An employment code shall provide for-

(a) to (d)…

(e) the notification to any person who is alleged to have breached the employment code that proceedings are to be commenced against him in respect of the alleged breach;

(f) to (g)…”

And S93 of the Act provides as follows:

93. Powers of labour officer

(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

(2) to (7)…”


Proceedings Before the Labour Officer

After referral the labour officer proceeded to conciliate. Parties filed written submissions. The labour officer thereafter considered the submissions.

After considering the submissions and evidence placed before her, the labour officer found that the allegations levelled against the respondent had not been proved. Consequently, the respondent was acquitted of the charges.

The charges which were levelled against the respondent employee by his erstwhile employer, the present appellant, were that he violated:

‘Most serious Offences Category D25-“ Carrying out any act which is inconsistent with the express or implied conditions of the contract of employment.”

The allegations against the respondent are that on 13 September 2019 he facilitated the unlawful entry of goods into Zimbabwe without the necessary customs duty being paid.

It is not in dispute that on the day in question the respondent requested to be excused from work for part of that day in order to perform a private errand. Such request was granted. It is also not in dispute that there was a truck which needed clearing before it could enter Zimbabwe from the Zambian side of the border.

The following are the allegations which involve the participation of the respondent. The truck got to a place shop known as Oasis Truck Shop (the shop/truck shop). This shop is situated on the Zambian side of the border. The respondent went to this truck shop and it was there that he met persons identified as, Darlington Enandi (or Emnandi) Nolani Njini (Njini)Matthew Chidarikire, Maxwell Meda and Clarence Nzombe. The respondent is alleged to have been in the company of one Leonard Matera (Matera). After meeting them and whilst still there, Matera started negotiations with an importer. The negotiations were in connection with clearance of goods which were on the truck, a Volvo truck, with the following particulars: Registration Number AEK 1951. Following the said negotiations, the respondent demanded USD 2500.00 for customs duty. He then accompanied the truck to the Zimbabwean side of the border where he took what is referred to as a ‘seal’ from the Motor Traffic Section at his workplace without signing for such seal as is required. Thereafter the respondent is said to have facilitated the ‘sealing’ with a ZIMRA seal number 0143246 and declared that the truck was empty when in fact this was not so. There was a traffic officer manning the entry gate who is said to have queried the sealing of an empty truck. The respondent however prevailed over the said traffic officer and the truck was allowed to pass through the entry gate into Zimbabwe. This enabled the truck to proceed with its trip. It was only when the truck got to Makuti that it was intercepted by police and found to have a huge consignment of ‘uncustomed’ goods. The goods in question were seized by ZIMRA Kariba, under Notice of Seizure 037092-41 of 20.9.2019. The alleged conduct of the respondent resulted in the loss of revenue to the appellant in the sum of eighteen thousand one hundred and eighty-seven US dollars and eighty-seven cents (USD 18187, 87).

The respondent’s response was a vehement denial of the allegations. His position was and remains that he did not sign for the seal which was found on the truck. The said seal according to him was a security item which meant that it was kept under lock and key. He submitted before the labour officer that he did not have access to seals; that he did not process the manifest which bore the ZIMRA stamp; that he was not involved in the clearance process and as such he did not commit any conduct which was inconsistent with the express or implied conditions of his contract of employment.

When parties appeared before the labour officer the appellant (then claimant) produced witness statements in support of the allegations. I reproduce below verbatim the statement by one Matthew Chidarikire (page 32 of the record):

‘1 … 2. I know the accused Nolani Njini, Kudakwashe Marecha, Leonard Matera and Darlington Emnandi only in connection with this case. 3. On 13 September 2019 at about 12:00 hours self in the company of Clarence Nzombe and Maxwell Meda arrived at Oasis Truck shop, Zambia side from Dar Salam,(sic) Tanzania where we had gone to collect some goods which were send (sic) from United Kingdom by my brother Chamunorwa Chidarikire. Clarence Nzombe was the driver of our seven and half tonne truck registration number AEK 1951. 4. Upon our arrival we met Nolani Njini and Darlington Emnandi who introduced themselves to us as clearing agents at Chirundu One stop border post and Nolani Njini then phoned Zimra Officials namely Kudakwashe Marecha and Leonard Matera to come where we were parking. 5. Leonard Matera who was in ZIMRA uniform came whilst driving a silver Toyota Camry with Kudakwashe Marecha sitting on the passenger seat in civilian attire and was drinking castle lite beer. 6. Nolani Njini then introduced Leonard Matera and Kudakwashe Marecha as the ZIMRA bosses based at Chirundu and I gave Kudakwashe Marecha all the documents concerning our goods in the present (sic) of Leonard Matera and they inspected the goods which were on the truck.
 7. **Kudakwashe Marecha then demanded US$2500.00** in the presence of Leonard Matera which he said was meant for payment of duty for the goods to cross the border.

8. **Kudakwashe Marecha** and Leonard Matera then instructed me and Maxwell Meda to sort out the said cash in the company of Nolani Njini and told our driver Clarence Nzombe to follow behind them with the truck as they drove to Chirundu border post Zimbabwe side.

9. Self and Maxwell Meda remained behind in the company of Nolani Njini to sort out the said money while the Zimra officials went back to their offices in the company of Darlington Emnadi whom they said was to complete the manifest.

10. **Kudakwashe Marecha** later came back to the Zambian side whilst driving a private white car to collect the said US$2500.00 and I gave it to Nolani Njini who handed it to Kudakwashe Marecha in the presence of self and Maxwell Meda.

11. After receiving the money, **Kudakwashe Marecha** told us that our truck was at the final stage of duty payment and he left for Zimbabwean side saying that he was going to sort out the documentation concerning our goods.

12. Self and Maxwell Meda then boarded Nolani Njini’s Honda fit and proceeded to the immigration side for our passports to be date stamped.

13. We then followed our truck which was just by passing the last gate into Zimbabwe at about 16:00 hours but **Kudakwashe Marecha** and Leonard Matera were nowhere to be seen and I just assumed that they gave all the documentation to the driver Clarence Nzombe.

14. We drove up to Makuti Service Station where we parked our vehicle for recess. Whilst parking there police officers came and demanded to see what we were carrying on the truck and we were instructed to drive to ZRP Makuti Station where the police officers discovered that we had nothing to prove that we had declared our goods at the border.

15. That is when I learnt that I was duped by the accused persons. [Emphasis added].

Three more statements, one made by Clarence Nzombe the driver of the truck which was carrying the goods, another one by Nolani Njini, a taxi driver and one by Morris Shutu who was employed by the appellant as a Revenue Specialist, were also produced. Shutu is therefore the respondent’s workmate. Njini’s statement was to the effect that he lived in Chirundu and knew the respondent and where he works. He said he(Njini) is the one who was tasked by Matthew Chidarikire to find a clearing agent. Matthew Chidarikire is one of the persons who were on this truck which was travelling from Tanzania. Njini did not know any clearing agent. However he knew the respondent and that the respondent worked for the appellant. Njini stated that he sought the assistance of the respondent in order to identify a clearing agent. I now quote verbatim the remainder of Njini’s statement (page 37 of the record):
 5. *I approached one Zimra official Kudakwashe Marecha and highlighted to him my conversation with my uncle and he told me to wait until the vehicle arrives at the border.*

6. *On the of 13th September 2019 whilst doing my work as a taxi- driver I received a call from Matthew Chidarikire who informed me that they had arrived from Tanzania and were parking at Oasis garage on the Zambian side of the border.*

7. *I then personally crossed the Zambian side of the border driving my Honda Fit ADJ 0433 blue in colour and met Matthew Chidarikire who was in the company of Maxwell Meda and the driver of the truck Clarence Nzombe.*

8. *I telephoned Kudakwashe Marecha and informed him that the vehicle which I had earlier on told him (of) had arrived.*

9. *In less than 2 hours Kudakwashe Marecha, Leonard Matera and Darlington Enandi arrived at Oasis garage on the Zambian side of the border driving a Toyota Camry whose registration number I have forgotten. Leonard Matera was driving.*

10. *I then showed them the vehicle and Kudakwashe Marecha told me that he required US$2500.00 for customs duty. Kudakwashe Marecha never inspected the goods which were in the vehicle.*

11. *Immediately I telephoned my uncle Mr Chidarikire whom I said earlier on that he is based in the United Kingdom and informed him about the money which was required for customs duty.*

12. *Mr Chidarikire responded that he was going to send the money through the Western Union under the name Maxwell Meda and Matthew Chidarikire.*

13. *I then left Kudakwashe Marecha Leonard Matera and the driver whilst I proceeded to Western Union in the company of Maxwell Meda and Matthew Chidarikire.*

14. *Maxwell Meda and Matthew Chidarikire withdrew Zambian currency from the Western Union and I do not know the exact amount but what I know is that the money amounted to US$2500.00 after it was converted. The money was handed over to me.*

15. *Kudakwashe Marecha phoned me asking about where I was and I told him that we were withdrawing money at the Western Union near Shoprite.*

16. *We then proceeded to Shoprite and saw Kudakwashe Marecha waiting and upon arrival I handed over the US$2500.00 to Kudakwashe Marecha who was sitting in his car.*

17. *I remained behind with Maxwell Meda and Matthew Chidarikire while Kudakwashe Marecha left us heading to the Zimbabwean side of the border.*

18. *I later followed behind with Maxwell Meda and Matthew Chidarikire and upon arrival at the Zimbabwean side of the border I showed them the Immigration offices and after they had finished presenting themselves to Immigration I drove them to the exit gate.*

19. *On exiting the gate I found the truck already parked at the truck shop.*

20. *I then left the three proceeding with their journey while I continued with my work.*

21. *At around midnight on the same day I received a call from Maxwell Meda who informed me that they were arrested at Makuti Police roadblock after they failed to produce documents for the goods which were loaded in the truck.*


22. That is the time I realized that things were not done properly when clearance was done at the border. (Emphasis added).

I have not reproduced the statement which was made by Clarence Nzombe but it corroborates that of Matthew Chidarikire on all material respects. The statement by Nolani Njini gives his version of what took place but it also corroborates what Matthew Chidarikire stated.

It is observed that each statement contains a detailed narration of the various steps of what took place on the date in question, specifically, they identify the respondent and the role that he played. He was one of the ZIMRA officials. He is the one who demanded money in the sum of USD 2500.00 and received it, allegedly for payment of the customs duty. The statements corroborate each other. Each of them mentions the respondent by name and this gives the impression that he was a key player in what took place. There is a ring of truth in them. It would be difficult to manufacture such detailed evidence in connection with a person who never appeared at the scene.

Shutu’s statement is to the effect that on the date in question he was manning the entry gate. The truck in question came and the clearing agent, Darlington, gave him an ‘empty manifest’ which was endorsed with a serial number. The said truck had been ‘sealed’ by Kudakwashe Marecha, the respondent. From what he(Shutu) understood, the truck was carrying personal goods and was in transit to South Africa. Shutu stated that he verified the seal and found that it was intact and had a genuine ZIMRA seal. Whilst Shutu was still at the truck ‘supervisor’ Matera from what Shutu referred to as ‘Enforcement’, together with Kudakwashe Marecha, arrived in a personal motor vehicle. Mr Matera then instructed Shutu to let the truck pass since they had done a physical check and sealed the truck as the truck had personal effects and in transit to South Africa. Thereafter Matera and the respondent

‘escorted the said truck out of the gate. I did not manage to check the contents of the truck since it was sealed and my procedure does not allow me to open seals and I follow instruction from the Supervisor and word from Officer Marecha that they had cleared it.’

These are the statements, among other evidence, which were produced before the labour officer.

After considering all the evidence placed before her, the labour officer found that the appellant (claimant then) had failed to discharge the requisite onus on a balance of probabilities.


Part of the reasoning of the labour officer was that inadmissible evidence in the form of witness statements had been produced on behalf of the claimant. Since the position adopted by the labour officer was that the evidence was inadmissible, the labour officer ruled that there was no proof of wrong doing on the part of the respondent. Below is part of what the labour officer had to say in declining to admit the witnesses’ statements tendered on behalf of the claimant (page 9 of the record):

‘The question which still remains is what are the chances that it is the respondent who facilitated the movement of the truck number AEK1951 from Zambia to Zimbabwe and the importation of goods into Zimbabwe without payment of duty when he was off duty as it is not in dispute that on the particular day he took an afternoon off. Is it possible for someone who is not at work to be a custodian of the seal that was found on the vehicle and how reliable is the witnesses’ affidavits against the respondent. From the above questions the claimant or the employer did not provide tangible proof showing that the respondent was the one who facilitated movement of truck number AEK1951 and imported goods without payment of duty on the day in question and is it possible for an employee off duty to be the custodian of the seal that was used and also what proof shows that the respondent took the seals and used it on the particular day.

The affidavits that were written by the crew members of the truck cannot be used as admissible evidence against the respondent as these might be untrustworthy people who have a motive against the respondent or there might be someone behind using these witnesses in order to score personal issues against the respondent in this matter. The one who did not perform his duties well is the custodian of the seal who is unfortunately unknown.’ (Emphasis added).

At page 181 of the record appears the respondent’s initial report in response to a query which was raised regarding his alleged involvement in the clearance of the truck in question. The response reads as follows:

‘1. I was on duty on Friday 13 September 2019 deployed to man (sic)the passengers gate

2. I was approached by a taxi driver, whom I later knew his name as Norlan requesting information on how he could clear his relatives empty truck, that was yet to arrive but still in Zambia.

3. I advised him to approach and engage an agent since it was a commercial truck to facilitate clearance.

4. I was neither involved in the clearance of the vehicle in any way nor have sight of the vehicle concerned.’

It will be noted that the respondent admitted to some communication with the taxi driver Njini. This communication was done before the truck arrived at the Zambian side of the border. The question of malice is not raised. However in his response to the appeal the respondent averred as follows (page 112 of the record):


21. I am aware of the fact that crew members knew what they did was wrong before the eyes of the Law and they made all efforts to find a scapegoat of their misdeeds through implicating me into this case. I never saw any of the crew members on the day in question.

22. I am aware that the documents which they had were processed in ZIMRA by people who were on duty who they are hiding for reasons best known to the Appellant and themselves.’

From the facts of this case the respondent does not specifically deny certain facts. Further the assertion that documents in question were processed by people who were on duty means that those persons can be identified. I am not sure why the respondent chose to simply refer to ‘people who were on duty’ and averred that such people were ‘hidden’ without insisting on their identity.

I will now go back again to the reasons for the labour officer’s findings. The labour officer referred to affidavits which were written by the witnesses which affidavits were found to be inadmissible. On record there are no affidavits and none were drawn to my attention when parties appeared in court. There were statements which I have referred to earlier on. The reason for their inadmissibility was that the authors of those statements ‘might be untrustworthy people who have a motive against the respondent or there might be someone behind using these witnesses in order to score personal issues against the respondent in this matter.’

As already noted, the statements which appear on record were not commissioned by a commissioner of oaths. They are therefore not affidavits. I note however, that whether or not the statements were commissioned before a commissioner of oaths, the labour officer would still have discounted them on the basis that, they emanated from untrustworthy sources or they were tainted with malice. The labour officer surmised that the authors of the statements might have been untrustworthy. Nothing was placed before the labour officer to suggest that the authors of the statements were in fact untrustworthy and had a motive against the respondent. The respondent’s response on the other hand, was a bald denial. He did not suggest any ill will from any of his colleagues. He did not suggest any bad working relationship between him and his colleagues. Given these circumstances, it becomes difficult to understand why the labour officer held the view that there might be reasons for the respondent to have been falsely implicated. It was only after the appellant had noted an appeal against the decision of the labour officer that the respondent introduced the issue of motive. Even then, he did not specify who it is that had a personal issue against him and why except to refer to ‘people who were on duty who they are hiding for reasons best known to the Appellant and themselves.’


Before this Court

When parties appeared before this Court counsel for the appellant applied for a default judgment to be entered in favour of the appellant. This was in view of a clear breach of the Rules of this Court on behalf of the respondent. The heads of argument on behalf of the respondent were not filed on time. There was no application for late filing of such heads. This means that because of the non-compliance the respondent was barred. The respondent’s representative had no excuse for failure to make the application. The representative asked the Court to consider what they had filed of record. The Court proceeded to hear counsel for the appellant. The Court in the exercise of its equitable jurisdiction proceeded to consider the heads filed on behalf of the respondent instead of entering a default judgment.

In addressing the Court Mr Marange who appeared on behalf of the appellant stood by his submissions. He highlighted the fact that witness statements which were produced were not controverted. Mr Marange drew the attention of the Court to the provisions of the Criminal Law and Codification Act, Chapter 9:23 with respect to persons who give false evidence to a public authority. S180 of the Criminal Law and Codification Act provides as follows:

‘180 Deliberately supplying false information to public authority

(1) Any person who, for the purpose of obtaining any advantage, whether for himself or herself or for some other person, supplies any information verbally or in writing to a public authority.’

(a) knowing that the information is false; or

(b) realising that there is a real risk or possibility that it may be false; shall be guilty of deliberately supplying false information to a public authority and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

(2) Where a person is accused of deliberately supplying false information to a public authority in connection with an enactment which makes such conduct a crime, such person shall be charged under that enactment and not under subsection (1).

(3) A person referred to in subsection (1) may be charged concurrently or alternatively with the crime of fraud.’

Mr Marange submitted that there was sufficient evidence from the witnesses proving that the respondent facilitated the improper importation of goods into Zimbabwe. Further continued Mr Marange, had false information been supplied, the labour officer was free to cause the arrest of the witnesses in terms of the above provisions of the law. For that reason it was submitted on behalf of the appellant, the labour officer erred in finding that there was no proof that the respondent had committed the offence in question. It was therefore submitted that there was merit in the first ground of appeal.

With respect to the second ground of appeal regarding the labour officer’s finding that there was malice on the part of the witnesses, it was argued that the labour officer erred by considering an issue which was not before her. Had there been malice, this would have been part of the respondent’s case before the labour officer. This was not so, it was argued. In support of this argument the Court’s attention was drawn to pages 57-59 of the record where the respondent’s response to claimant’s submissions when parties appeared before the labour officer appears. Indeed no mention was made of malice or any motive or ill will in the respondent’s response. The respondent proffered a bare denial. In those submissions the respondent did not make any specific comment to the various accusations which were contained in the claimant’s submissions. (For example he did not comment on being in company of one Leonard Matera and the assertion that he was said to have been given US$2500.00.) For that reason it was submitted on behalf of the appellant that the labour officer went on a frolic of her own by bringing in and considering the issue of malice. Mr Marange submitted that the second ground of appeal had merit and should be upheld. With respect to the third ground of appeal Mr Marange submitted that given what had already been submitted and the papers, the labour officer erred by finding that the respondent had not committed an act which is inconsistent with the express or implied terms of his contract of employment.

With respect to the fourth ground of appeal it was submitted that the labour officer erred and misdirected herself by finding that the witness statements were inadmissible. In support of this submission the Court’s attention was drawn to the provisions of S90A of the **Labour Act Chapter 28:01** (the Act) which provide that the Labour Court is not bound to follow strict rules of evidence when considering matters before it. The Court’s attention was also drawn to the provisions of S2 of the **Civil Evidence Act Chapter 8:01** which provide for courts where strict rules of evidence are observed. These courts do not include the Labour Court. For these reasons it was submitted that the fourth ground of appeal has merit and should be upheld.


With respect to the fifth and final ground of appeal that the labour officer erred and misdirected herself by finding that since the respondent was off duty he could not have committed the offence, it was argued that evidence was placed before the labour officer showing that the respondent was present at the scene of the crime. It was argued that this was so notwithstanding the fact that he was off duty. It was further argued that the only way that the respondent might have escaped liability was through a defence of *alibi*. It was further still argued that the report by one of the respondent’s workmates, Shutu, where the participation of the respondent in facilitating entry of the truck into Zimbabwe was buttressed, was never controverted. In view of this it was submitted that there was merit in the fifth ground of appeal. It was finally submitted on behalf of the appellant that there was merit in all the grounds of appeal, that the appeal should succeed and that the determination of the labour officer be set aside and the respondent be dismissed from employment with effect from date of suspension.

Some of the authorities relied on by the appellant included *ZUPCO v ParkHorse Services SC13/2017; Pillay v Krishna 1946 AD 946; MB Investments (Pvt) Ltd v Oliver & Partners 1974 (3) SA 269 (RA); Chenge v Chikadaya and Others SC7/13; Milner v Minister of Pensions 1947ALLER 372; Nzara & 3 Others v Kashumba N.O.& 3 Others SC18/18 Standard Chartered v Chapuka SC125/04.*

The heads of argument filed on behalf of the respondent drew the attention of the Court to the detailed procedure which is followed when goods are being imported into Zimbabwe. It was argued that an individual cannot single handedly conduct the procedure as alleged by the appellant. It was further argued on behalf of the respondent that no evidence was placed before the labour officer. For this reason it was submitted that in the absence of supporting evidence, the conviction falls away. The case of *Sibanda v Mwonzora & 4 Others HH 713/2020* was used in support of this submission. With respect to the second ground of appeal it was argued that the labour officer did not err by considering the issue of malice. The Court’s attention was drawn to provisions of s70(1)(h) of the Constitution of Zimbabwe in support of emphasis placed on how evidence is adduced and challenged. This was averred in view of the fact that it was the appellant who brought the witness’ statements which were used against the respondent but the witnesses were not subjected to cross-examination. Further still it was averred on behalf of the respondent that when asked to secure the attendance of the authors of the statements the appellant failed to do so. For the reason that the witnesses were not present for cross examination it was submitted on behalf of the respondent that the labour officer did not err by not admitting the statements as evidence. With respect to the third ground of appeal it was argued on behalf of the respondent that there was no evidence to support the commission of the offence. It was submitted that under the circumstances the ground was baseless. It was argued still further that the allegation that the respondent was given **USD 2500.00** was a bald allegation which was not supported by evidence. It was argued on behalf of the respondent that he was off duty when the offence was committed. It was further argued that the labour officer was aware of the procedures which have to be undertaken at the Chirundu border post. Further still the absence of the witnesses for them to be cross examined meant that the veracity of the evidence produced was not tested. For this reason it was submitted on behalf of the respondent that the allegations against the respondent were not proved and therefore there was no reason for the Court to interfere with the findings of the labour officer. The case of **Hama v National Railways of Zimbabwe 1996 (1) ZLR 670 (S)** was cited in support of this submission. Finally it was the prayer on behalf of the respondent that the appeal be dismissed for lack of merit and that the respondent be reinstated to his post with no loss of salary and benefits with effect from date of suspension or alternatively he be paid damages in lieu of reinstatement should reinstatement be no longer possible.

**The Law**

The main issue in this appeal is whether or not there was evidence against the respondent. This necessarily touches on the admissibility of the statements which were produced on behalf the appellant when parties appeared before the labour officer. This makes the basis of the fourth ground of appeal. I believe that once this ground has been considered the rest of the grounds will also find their answers.

The Constitution of Zimbabwe 2013, the Labour Act do provide for what to do in the process of hearing matters.

S70 of the Constitution provides as follows:

**‘70 Rights of accused persons**

(1) Any person accused of an offence has the following rights—

(a) to g…;

(b) **to adduce and challenge evidence;**


And section 90A of the Act provides as follows:

**S90A of the Act provides as follows:**

*‘90A Procedure and evidence in the Labour Court*

(1) The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer things fit and which is not unfair or unjust to either party. (2) Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer. (3) The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness. (4) It shall be the responsibilities of the presiding officer to ascertain the facts in any proceedings in the Labour Court, and for that purpose he or she may— (a) call any party or his or her representative; (b) question or cross-examine any party or his or her representative or witness; and (c) put any question to a party or his or her representative or witness which is suggested to him or her by any party.’

The Act provides that this Court shall not be bound by strict rules of evidence. The purpose of the Act is ensure simple justice between parties without unduly burdening them with the rigors which are required in criminal matters. The standard of proof in labour matters, as in civil matters, is proof on a balance of probabilities. In **Sibonile Dube v(1) Paul** **Murehwa (2) Minister of Local Government, Public Works and National Housing N.O. SC 68/21** the Supreme Court had this to say:

‘It is settled in our jurisdiction that the standard of proof in civil matters is “a balance of probabilities”. In **ZESA v Dera 1998 (1) ZLR 500** the court held that in a civil case the standard of proof is never anything other than proof on the balance of probabilities. It stated that the reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. MCNALLY JA stated at 504B:

“So in a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the ‘balance of probability test’.

30. In **Bruce N.O v Josiah Parkers and Sons Ltd (1) SA 68 (R) at 70 C-E).** Proof on a balance of probabilities was interpreted in the following manner:

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

See also **Elford Dube & 9 Others v Awake Grace Ministries SC104/21.**


In *Thulisani Dube Nyamambi v Bongani Ncube HB 82/15* the court stated that:

*‘In civil cases the burden of proof is discharged as a matter of probability. The standard is often expressed as requiring proof on a “balance of probabilities”, but that should not be understood as requiring that the probabilities should do no more than favour one party in preference to another. What is required is that the probabilities in the case be such that, on a preponderance, it is probable that the particular state of affairs existed.*

See also *Milner v Minister of Pensions [1947] 2 ALL ER 372 at page 374.*

In *Smith Chataira v ZESA SC 83/01* the Supreme Court held that the dismissal of an employee on the basis of witness statements without such witnesses having been cross examined was proper. The Court considered a situation where the employee had not cross examined witnesses. It stated:

*‘The question which fell for determination was whether the hearing by the Disciplinary Committee was defective because the witnesses were not called to give viva voce evidence and therefore Chataira was unable to cross-examine.’*

The Court proceeded at page 4 of the cyclostyled judgment to hold that:

*‘When an allegation of an employee’s misconduct has been made by an informant, a balance must be maintained between the need to protect the informant and respect his anonymity, and providing a fair hearing to the accused employee. In Bowers on Employment at p 217 the learned author refers to the case of ….. wherein it was held that the lack of opportunity to cross-examine and to produce statements of witnesses to alleged misconduct did not render the hearing unfair. In that case the three guiding principles were summarised as follows:*

(a) *that the employee should know of the accusations he has to meet;*

(b) *that he should be given an opportunity to state his case; and*

(c) *that the internal tribunal acts in good faith.*

*From the authorities referred to above it is clear that at a hearing into allegations of misconduct, it is not necessary that viva voce evidence be led. The employee concerned must obviously be shown any statements or documentary evidence that is being produced before the Disciplinary Committee but he cannot insist that the person who made the statement be called so that he can be cross-examined.’*

In the present case the main issue is whether or not it was appropriate for the labour officer not to admit the witness statements. From the authorities above, an employee does not have to cross examine the authors of statements produced as evidence against him. What is required is that he is aware of the charge or charges that he is facing before an adverse decision is made against him. This enables him to adequately prepare his case.

The question must be answered as to whether or not it was proper for the labour officer to rule that the statements produced by the appellant were inadmissible on the basis that there was no cross examination and that there might be malice or motive against the respondent.


Firstly, the authorities say that an employee cannot insist on cross examining a witness. In the circumstances of this case therefore, the statements were admissible.

Secondly the question of malice or motive was not placed before the labour officer. The labour officer therefore went on a frolic of her own when she considered a matter which parties had not placed before her. In **Homelink (Private) Limited v Clever Maputseni SC 4/22** the Supreme Court held that:

‘It is trite that a court decides on the basis of the evidence that is placed before it. It therefore follows that the court a quo cannot be faulted for failing to take into account evidence that was not placed before it. The court a quo would face severe criticism if it had done so.’

See also **C.Kambuzuma and TwentyTwo Others v The Athol Evans Hospital Home Complex SC 118/04**.

In the case of **Nzara and 3 Others v Kashumba and 3 Others SC 18/18** which is one of the cases cited on behalf of the appellant the Supreme Court held that:

‘It is clear from the court a quo’s orders that some of the orders it granted had not been sought by either party. It is also clear that parties had not made submissions for or against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties’ views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court’s mind but has not been raised by the parties or addressed by them either in their pleadings in evidence or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.’

**Analysis**

In the present case the labour officer determined an issue which was not placed before her. She therefore fell into error when she did so. As indicated earlier it was my view to consider first whether or not there was merit in the fourth ground of appeal. In doing so the reason or reasons for not admitting the statements had to be canvassed. One of the reasons was malice. However, issue of malice was not placed before the labour officer for consideration. The fact that the issue of malice was not an issue for determination by the labour officer could therefore not be used as a reason not to admit the statements in question. Further there was no need for the witnesses to be cross examined as the authorities have demonstrated.


Indeed the Constitution provides for cross-examination of witnesses. It is the Constitution which also provides for the Labour Act in order to ensure proper administration of justice in labour matters. The Act, as already noted, does not require that strict rules of evidence be observed. In the circumstances therefore the statements were admissible.

What this means is that there is evidence against the respondent showing that he was at the scene of the offence even though he was off duty. In any event, the fact that he was off duty did not stop him from going to the truck shop if it was a place where he was free to go to. What would have been improper as was in the present case, was for him to meddle with procedures which were supposed to be handled properly by his colleagues who were on duty. He was given US$2500.00. The evidence that he received the said money was corroborated. He did not deny it. It is trite that what is not denied is taken to be admitted. See *The Trustees For The Time Being of Cornerstone Trust & Two Others v NMB Bank Limited SC97/21*.

Having shown that the statements ought to have been admitted as evidence, ground four of the grounds of appeal has merit. The evidence showed that he took part in facilitating the importation of goods into Zimbabwe without duty being paid. This means that there is merit in the first ground of appeal. It has been demonstrated that the question of malice was not before her for consideration. The labour officer therefore exceeded her mandate by deciding on an issue which was not placed before her for determination. This means that there is merit in the second ground of appeal. Further by conducting himself in the manner that he did, the appellant acted in a manner that was inconsistent with the express or implied conditions of his contract of employment with the employer which required him to be a person of integrity among other virtues. This means that there is merit in the third ground of appeal. Finally it was proved that even though the respondent was off duty on the day in question, he participated in the commission of the offence levelled against him. This means that there is merit in the fifth ground of appeal. Further it is clear that this was not a single handed effort by the respondent. There were other participants. The averment on behalf of the respondent that one person or the respondent could not conduct the procedures single handedly is not sustainable. It is the participation of the respondent which is under scrutiny.


Conclusion

Having found that there is merit in all the grounds of appeal, the appeal ought to succeed. It is trite in this jurisdiction that an appellate court does not lightly interfere with the findings of a lower tribunal unless it is necessary to do so. (See The Trustees for The Time Being of Cornerstone Trust (above)). However having found merit in all the grounds of appeal, there is reason in the present case for this Court to interfere with the findings of the lower tribunal.

In view of the foregoing, I find that the appellant has discharged the onus required of it, on a balance of probabilities. The appeal succeeds.

Accordingly it is ordered that:

1. The appeal be and is hereby granted.

2. The decision of the labour officer be and is hereby set aside.

3. The respondent be and is hereby dismissed from employment with the appellant with effect from the date of suspension.
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