Knowledge Mahachi v Rio-Zim (Private) Limited

### Preamble
Judgment No. SC 39/19
1
Civil Appeal No. SC 727/17
---------


REPORTABLE              (37)

KNOWLEDGE     MAHACHI

V

RIO-ZIM     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MAVANGIRA JA & BHUNU JA

HARARE, FEBRUARY 9, 2018 & MAY 14, 2019

L. Madhuku for the Appellant

T. Sibanda for the Respondent

GUVAVA JA:	On 14 December 2012 the Labour Court delivered a judgment in respect to this matter.  Condonation for the late noting of appeal and extension of time was granted by this Court on 20 September 2017. The appellant noted an appeal against the decision of the court a quo dismissing his appeal and seeks an order for his reinstatement into the employ of the respondent.

BACKGROUND FACTS

The facts of this matter are mainly common cause. The appellant was employed by the respondent as an Assistant Chief Storekeeper. His duties entailed amongst other things, checking physically the goods in stock and where necessary purchasing new stock. In April 2010, the appellant placed an order for five shafts when there were still two shafts in stock. It is not in dispute that the appellant originated the requisition form for the five shafts. There was evidence from one Amiot Magoronga, the end user that he had requested 5 shafts as the 2 on the Gantt Chart were not enough.  The form was approved at various levels up to Head Office before the shafts were purchased and delivered at appellant’s work station. When the goods arrived the requisition form was still at Head Office and the appellant generated a new form in order to receive the goods. This was a process permitted where goods arrived in the absence of the original requisition form.

When the purchase of the five new shafts was discovered the appellant was charged with contravening s 4 (a) (iii) of the Mining Industry Code of Conduct S.I. 165 of 1992 (the Code) being forgery and uttering or falsifying or changing any document with fraudulent intent or attempting to do so or s 4 (d) being theft or fraud.

At the disciplinary hearing, whilst finding that the intention for the overstocking was not clear, the disciplinary committee still found the appellant guilty of contravening s 4 (a) (iii) of the Code. He was consequently dismissed from employment. The appellant appealed to the Designated Authority and his appeal was dismissed. Dissatisfied with the outcome he appealed to the Labour Court. The court a quo noted that while the appellant may have made some mistakes, the facts did not disclose an intention to defraud. The court also found that the conduct of the appellant did not constitute an offence in terms of the Code but went on to state that the appellant should not escape liability. The court a quo thus upheld the decision of the Designated Authority and dismissed his appeal. Aggrieved by that decision the appellant noted an appeal to this Court.

ISSUES FOR DETERMINATION

It seems to me that although the appellant’s appeal was based on a number of grounds, the first one having been abandoned, the crux of the matter is whether or not the court a quo erred in upholding the decision of the Designated Authority in circumstances where it found that the conduct of the appellant did not constitute an offence.

WHETHER THE COURT A QUO WAS CORRECT IN UPHOLDING THE DECISION OF THE DESIGNATED AGENT

It was submitted by the appellant’s counsel that the evidence led by the respondent did not disclose the offence for which he was convicted. It was his submission that fraudulent intent had not been established. It was further argued by Mr Madhuku that even if the facts disclosed some other offence in terms of the Code the appellant was still entitled to an acquittal unless that alternative charge has been preferred as an alternative charge.

Mr Sibanda for the respondent argued that labour matters should not be determined on technicalities where the evidence led shows that there was some wrong doing by the appellant. He relied on the case of Air Zimbabwe (Private) Limited v Chakanetsa & Anor SC 89/04 where the court held as follows:

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent.”

He argued further that the respondent had produced documents which showed the appellant’s mischief. He relied on the Gantt Chart which showed that at the time that the appellant placed the order for five more shafts, there were still two other shafts in the respondent’s stocks. It was his submission that the appellant was guilty of some unspecified offence.

The court a quo found that the charges which the appellant had been convicted of had not been proved. At p 72 of the record the judgment of the court a quo reasoned as follows:

“The main argument on the appeal is that while the appellant may have made some mistakes, he had no intention to defraud. What is clear however is that there was some wrong doing on the part of the appellant. It also happens that the applicable code may not adequately cover each and every act of conduct that occur at the workplace. This may be because all employment codes are made by human beings. It is therefore not abnormal for them to fail to cater for certain acts of misconduct”

As can be noted from the above both the court a quo and the disciplinary authority failed to find any fraudulent intent on the part of the appellant. The court a quo also found that the facts as proved did not constitute an offence in terms of the Code. It seems to me that the court a quo thus erred in dismissing the appellant’s appeal in these circumstances.

It has been stated in a number of judgments of this Court that where the evidence led does not support the charge preferred by the employer the accused is entitled to an acquittal. In the case of Zimasco v Chizema SC 38/07 Gwaunza JA as she then was stated as follows:

“The Labour Court considered the appeal on the basis of the evidence placed before it. It found that such evidence did not establish, even on a balance of probabilities, the commission of an offence. The court therefore properly discharged its mandate. It should be noted that it clearly was not the responsibility of the Labour Court to amend the charge sheet in this matter by substituting the charge preferred against the respondent with another one. The court is not there to formulate charges or cases for litigants. In cases of this nature the court’s brief is to determine, on the basis of the evidence placed before it, whether or not a case has been proved against the respondent. It needs no emphasis that he who alleges anything against another person, must prove such allegation.”

Once the court a quo found that the evidence did not establish the commission of the offence it was clearly wrong for (the court a quo) to find the appellant guilty of an unspecified offence. In any event the court did not even state that the appellant was guilty of a competent verdict or of some other offence in the Code. It was the finding of the court a quo that the appellant was guilty of some wrongdoing which remained unnamed.

In the case of Lawsign Nyarumbu v Mining and Construction of Zimbabwe (Private) Limited SC 31/13 this Court stated:

“It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict of the offence originally charged. The reason for this is obvious, viz. The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence. In this context, notwithstanding the provisions of s 89 (2)(a)(ii) of the Labour Act, the Labour Court cannot mero motu, substitute its own charge or make a finding of guilt on an entirely different offence. Any such action would constitute a blatant miscarriage of justice”

It is quite apparent from reading the record that the court a quo erred in upholding the decision of the Designated Agent after having found that the evidence did not prove the charges preferred against the appellant. It was quite clear that none of the essential elements constituting the alleged act of misconduct were established.  With regards to the forgery it was clear that the fraudulent intent was not established. The statement by the court a quo that the appellant must have had an ulterior motive in ordering the five shafts was clearly speculative and insufficient to prove any offence in terms of the Code of Conduct.

An examination of the record shows that the purchasing and receiving processes are elaborate and the appellant’s role was not definitive. He was just one in a long line of players. There was also evidence that the end user had requested five more shafts in addition to the two which were reflected on the Gantt Chart.  With regards to the falsification of the document, this too was not proved. Firstly, his superior stated that it was acceptable in the ordinary course of business to generate a new requisition form if the original document was not available in order to receive the goods that had been ordered. Secondly, the requisition form was not altered at all as it was reproduced in its original form as when the order was made. Thirdly there was a request for the shafts in question and the appellant merely made the order in response to the request.

From the above facts the appellant could not have been found guilty of forgery and uttering nor of falsifying documents. It is my considered view that the quote from Air Zimbabwe (Private) Limited v Chakanetsa (supra) upon which the respondent seeks to rely simply cannot be applied on the facts of this case. There was absolutely no evidence that the appellant was guilty of the charges levelled against him.

DISPOSITION

It seems to me that the court a quo erred in upholding the decision of the Designated Agent despite the fact that it found, properly so, that the appellant was convicted of a charge which had not been proved. It is a basic principle in our law that in such circumstances the appellant was entitled to an acquittal.

The appellant has not asked for costs of the appeal in the event that he is successful. Accordingly, I will not make an order for costs.

In the result the following order is issued:

The appeal be and is hereby allowed with no order as to costs.

The decision of the court a quo is set aside and substituted with the following.

“(i) The appeal be and is hereby allowed.

(ii) The respondent be and is hereby ordered to reinstate the applicant to his former position without loss of salary and benefits, from the date of dismissal.

(iii) In the event that the relationship between the parties has broken down and reinstatement can no longer be effected, it is ordered that they agree on damages for loss of employment, failing which they shall approach the Labour Court for quantification of damages.

(iv) The respondent shall pay the costs of suit.”

MAVANGIRA, JA:				I agree

BHUNU, JA:					I agree

Lawman Chimuriwo Attorneys At Law, Appellant’s Legal Practitioners

Chinawa Law Chambers, Respondent’s Legal Practitioners