Zimbabwe Revenue Authority v Patrick Chadzima

### Preamble
Judgment No. SC 33/20
1
Civil Appeal No. SC 633/15
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REPORTABLE	(29)

ZIMBABWE     REVENUE     AUTHORITY

v

PATRICK     CHADZIMA

SUPREME COURT OF ZIMBABWE

GARWE JA, GOWORA JA & BHUNU JA

HARARE, OCTOBER 28, 2016

T. Mpofu, for the appellant

J. R. G. Sithole, for the respondent

GOWORA JA:	After hearing counsel in this appeal we allowed the appeal and issued an order in the following terms:

“1)	The appeal be and is hereby allowed with costs.

2)	The decision of the Labour Court is set aside and is substituted with the following:

“The appeal is dismissed with costs.”

3)	Full reasons for the order will follow in due course.”

The reasons for our order appear hereunder.

FACTUAL CONSPECTUS

The respondent was employed by the appellant as a Revenue Specialist at the Plumtree Border Post. As part of his duties he was required to physically mark off permits issued by Government enabling and authorising the importation of specified goods, which in this particular instance related to maize imports. The requirement to mark off permits was meant to ensure that only authorized goods and quantities of those goods would be allowed ingress into our borders. This would also ensure that a permit would not be used more than once. Once a permit was marked off, the respondent was required to keep and maintain evidence of that fact in the appellant’s records attached to the bill of entry in respect of which the permit had been utilized to import the goods appearing on the bill of entry.

On 21 June 2013 and 5 July 2013 respectively, the respondent processed imports through two import permits which he omitted to mark off. In the electronic system, however, he endorsed that the permits had been marked off. The failure to mark off the permits allowed them to be used again and made it possible for an increased tonnage of maize to be imported via the utilization of the permits in question. No copies of the permits were attached to the bills of entry and the office files as required.

The anomaly was picked up at the appellant’s Bulawayo Data Processing Centre which duly notified the appellant’s commercial office. The appellant’s supervisor requested the clearing agents to submit all permits used for the importation of maize during the period in question. Two permits, with reference numbers 023373A and 023899A were submitted. Investigations ensued and it was discovered that the respondent’s failure to mark off permit number 023899A which had an authorized tonnage of 30 000 tonnes of maize had been utilized to clear and import five more consignments. On 12 October 2013 the appellant suspended the respondent from employment.

On 26 October 2013, the respondent was charged with misconduct in terms of the appellant’s code of conduct. It was alleged that he had been grossly negligent in the discharge and execution of his duties, or, in the alternative, that he had committed an act which was inconsistent with the express or implied conditions of his contract of employment. He was, after a hearing before the Disciplinary and Grievance Committee (“the DGC”), found guilty on the main charge. He was acquitted on the alternative charge. He was, as a consequence, dismissed from his employment with effect from the date of his suspension. He appealed without success to the Appeals Committee which confirmed both the conviction and discharge from employment.

Aggrieved by the conviction and discharge from employment he appealed to the Labour Court. The grounds upon which he approached the Labour Court are the following:

“1.    The Appeals Committee erred and misdirected itself in finding the Appellant guilty and dismissing him without taking into consideration mitigation factors contrary to Section 12B (4).

Charge D9, Gross negligence was based on Honest Moyo’s report which is the originating cause, Honest Moyo’s report was thrown away as inadmissible evidence therefore the case should have been equally thrown away.

The Appeals Committee with respect erred and grossly misdirected itself by upholding the decision of the DGC and dismissing the Appellant not withstanding that it was never substantiated instead the respondent substantiated failure to follow laid down procedure which has specific charge in group B, that is, B6 and B9 in our own code of conduct.(sic)

The Appeals Committee erred and misdirected itself in finding the Appellant guilty and dismissing him though the respondent was the only witness who was brought before the DGC, the complainant was the investigator, complainant prosecuting against her own investigations contrary to the principles of natural justice and this was condemned by the Courts of law in Chigwegwe v Zimra.(sic)

The Appeals Committee erred and misdirected itself in finding the Appellant guilty and dismissing him but they did not take note that the Respondent completely changed the system at Plumtree soon after the occurrence of the case which shows that the system was porous and pregnant with irregularities.(sic)

The Appeals Committee with respect erred and grossly misdirected itself by not taking into account that there was a questionable violation of the ZIMRA Code of Conduct when the Appellant was suspended without pay and benefits pending investigations.  This implies that already the Complainant had made a decision before investigations were concluded.  This behavior is against the Code which states that first the investigations are supposed to be concluded and only if the Complainant thinks that the Appellant had a case to answer then she would suspend him.

The Appeals Committee erred and misdirected itself in refusing to give the Appellant a second chance despite the fact that the Appellant was still under mentoring and he was mentored for a very short period before the mentor was transferred.(sic)

The Appeals Committee erred and misdirected itself in that it chose to ignore the fact that the respondent failed to produce a record of the proceedings of the meeting held on 24 September 2013 which were pertinent to the hearing instead respondent cited that even if the minutes were produced that would not have changed anything, implying that a decision was predetermined before trial of the Appellant.(sic)

The Appeals Committee erred in that it chose to ignore the fact that the Respondent confirmed that the standing instructions were given to the Appellant on the 16th of July 2013 way after the occurrence of the case.(sic)

The Appeals Committee also erred in that it chose to ignore the fact that the standing instructions produced and given to the Appellant relates to Asycuda and not Asycuda world.(sic)

The Appeals Committee erred in that it chose to accept a situation in this case where the investigations officer becomes the complainant. It is a principle of natural justice that to reduce bias an investigation officer must be different from the Complainant.

Fundamentally, the Appeals Committee erred and grossly misdirected itself in ignoring the fact that the case was heard out of time violating Section 6.15 as read with section 6.14 of Zimbabwe Revenue Authority Code of Conduct.”

Although the respondent filed extensive heads of argument in the court a quo, the main issue in contention was related to the permits. The respondent contended that he should not have been found guilty of the alleged misconduct. It was contended on his behalf that the agent probably used forged copies of the permit. It was further contended that the DCG failed to realise this and ought not to have found the respondent guilty on the main charge.

On the issue of mitigation, the respondent contended that he had not been availed an opportunity to mitigate and that the DCG proceeded to issue a penalty regardless contrary to the law. If the DCG had allowed him to mitigate, so the argument went, they most probably would have issued a lenient penalty as was done with two of his colleagues. To that end it contended that the court had the option either of remitting the matter so that mitigation could be taken or instead to hear the respondent in mitigation.

The appellant pointed out that the record showed that the respondent had in fact been heard in mitigation. The respondent’s representative agreed.

On the issue of the conviction, the appellant contended that the issue of fake permits had been discounted during the disciplinary process. It was also argued that the original permit which was the subject matter of the charges against the respondent had been produced at the hearing and it was clear that the respondent had, contrary to requirements, failed to mark it off. It was suggested that he had aided an abuse of the permit.

As to whether or not the respondent received a stiffer penalty than that meted to his colleagues the respondent’s counsel indicated that she had no personal knowledge of the cases that he was referring to and that in any case each case depended upon its merits.

In determining the appeal the court a quo made the following remarks:

“…. In my view, there has been no proof that the appellant was negligent in his conduct as is expected of the definition of gross negligence in Bickle v Minister of Law and Order 1980 ZLR 36 cited with approval in Clan Transport Co v Mhishi 1991 (2) ZLR where the learned judge said:

“…The words gross negligence must be construed in the context in which they are used because the words may have different meaning in different contexts, used in juxtaposition to wilful misconduct gross negligence must be construed as something other than willful. As the learned judge said “they must mean precisely what they say, ordinary negligence of an aggravated form which falls short of wilfulness.”

There is no evidence that the Appellant acted negligently and also did not display negligence of an aggravated form.”

It is patently obvious from those remarks that the learned judge in the court a quo embarked on an analysis of the evidence presented before the disciplinary tribunal and the conclusions of fact reached by that tribunal and confirmed on appeal within the workplace. At the end of that analysis the learned judge concluded that the complainant acting for the appellant at the disciplinary hearing had failed to prove her case on a balance of probabilities. The court a quo considered that it had to give the respondent the benefit of the doubt. Ultimately the Labour Court allowed the appeal and ordered that the respondent be reinstated to his employment without loss of salaries and benefits.

Clearly the Labour Court misdirected itself in at least two fundamental aspects. The first is that as an appeal court it proceeded to set aside findings of fact by the original tribunal without regard to established principle entitling an appeal tribunal to do so. The second aspect is that contrary to the law, it ordered reinstatement without ordering, in the alternative, damages in lieu of reinstatement.

I turn to discuss these two issues seriatim.

In this jurisdiction, the locus classicus as to when an appeal court or a tribunal can interfere with findings of fact made by court or tribunal of inferior jurisdiction is Hama v National Railways of Zimbabwe 1996(1) ZLR 664. At 670A-E, His Lordship KORSAH JA had this to say:

“I wholeheartedly agree with the above observation, for a misdirection is nothing more than an error in law made by a judge in his charge to a jury. I must, however, add this rider; there can be misdirection as to the law applicable to the case being tried; and there can be misdirection as to the evidence in the case. For an appellant to avail himself of a misdirection as to the evidence, the nature and the circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.  That, I believe, was the basis of the attack by Mr Andersen on the Tribunal’s determination. For the grounds upon which administrative action is subject to control see CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 950h.

The general rule of the law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it 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 or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education & Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Min for the Civil Service supra at 951A-B; PF-ZAPU v Min of Justice (2) 1985(1) ZLR 305(S) at 326E-G.”

A perusal of the grounds of appeal filed by the respondent before the Labour Court will reveal that the court could not have interfered with the factual findings of the disciplinary committee without doing violence to the principle set out in Hama’s case (supra). There was no imputation in any of the grounds that could justify the court a quo to enquire into the findings of fact by the disciplinary committee and, thereafter, for that court to conclude that the same had been irrational or grossly unreasonable in its assessment and analysis of the evidence presented before it. The court a quo did not so find and, therefore according to law, it could not find that the respondent had been wrongly convicted of gross negligence in the performance of his duties.

In point of fact it would appear that the court a quo itself misread the record. It concluded, wrongly, that the import permit which was the subject matter of the charge of misconduct had not been produced. The import permit was produced and a scrutiny of the same showed that despite it having been exhibited to the respondent for the importation of maize it had not been marked off. Accordingly it is my finding that the findings of fact made by the court a quo had no legal premise. The legal conclusion as to the lack of guilt on the part of the respondent has consequently no legal premise.

The grounds before the court a quo did not allege that the disciplinary committee’s finding of fact defied logic. There was no allegation of irrationality or unreasonableness. The court a quo was wrong to interfere with those findings. This Court is thus at large to set aside the judgment and substitute its own by dismissing the appeal brought before that court by the respondent.

Over and above this, in ordering the reinstatement of the respondent to his former employment the court a quo failed to order that, in the alternative, if continued employment was no longer possible, then the appellant should be afforded the alternative of paying damages to the respondent. An order that omits such an alternative is at law irregular and cannot be allowed to stand. I am fortified in this view by the remarks of MAKARAU J (as she then was) in Mandiringa & Ors v National Social Security Authority 2005 (2) ZLR 329(H), wherein she stated:

“It is therefore, the settled position in our law, that in ordering reinstatement in terms of the Labour Act, the Labour Court, labour officers and arbitrators appointed under the Act are duty bound to assess damages in lieu of reinstatement. Any judgment, determination or award by these officials that fails to do so is liable to be interfered with as a misdirection or as failing to comply with the Act in a material way.”

Undoubtedly in this instance the court a quo was guilty of a misdirection in this regard. The order of reinstatement in the absence of an order for damages as an alternative was in conflict with s 89(2)(c)(iii) of the Labour Act, [Chapter 28:01]. In Mandiringa & Ors v National Social Security Authority (supra) MAKARAU J further commented:

“An interpretation of the precursor to s 89(2)(c)(iii) of the Act was rendered in Hama v National Railways of Zimbabwe 1996(1)ZLR 664(S). In deciding that case, the Supreme Court overruled its earlier decision in United Bottlers (Pvt) Ltd v Murwisi 1995(1) ZLR 246(S) to the effect that a determining authority under the Labour Act had just two options of either dismissing or reinstating and could not award damages.”

Lest it be misunderstood, it appears to me that the Labour Court, in determining an appeal whose genesis is s 93(7), has no discretion, after a finding that there was an unfair labour practice on the part of the employer in the relief that it may award. If the court orders reinstatement it must also assess damages in lieu of reinstatement. This in accordance with the provision of s 89 (2)(c)(iii) which reads as follows:

89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions—

(a) hearing and determining applications and appeals in terms of this Act or any other enactment; and

(2) In the exercise of its functions, the Labour Court may—

(c) in the case of an application made in terms of subparagraph (ii) of subsection (7) of section ninety-three,

make an order for any of the following or any other appropriate order—

(i) back pay from the time when the dispute or unfair labour practice arose;

(ii) in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether as a lump sum or by way of instalments, as will, in the opinion of the Labour Court, adequately compensate the employee for any loss or prejudice suffered as a result of the unfair labour practice;

(iii) reinstatement or employment in a job:

Provided that—

any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;(my emphasis)

in deciding whether to award damages or reinstatement or employment, onus is on the employer to prove that the employment relationship is no longer tenable, taking into account the size of the employer, the preferences of the employee, the situation in the labour market and any other relevant factors;

(iii) should damages be awarded instead of reinstatement or employment as a result of an untenable working relationship arising from unlawful or wrongful dismissal by the employer, punitive damages may be imposed;

It is obvious therefore that, as a matter of principle, in its determination of an appeal, the Labour Court must also determine the issue of damages where it finds that there has been an unfair labour practice. It cannot just order reinstatement. This is because such an order, in the event that an employment relationship is no longer tenable, would force parties into continuing with a relationship which one or both of them may no longer wish to continue with. The reason for such an approach was explained in Hama’s case (supra). At p 676E-F this Court said:

“It seems to me the principle that an employer is not to be compelled to keep a person he does not want in his employ, because the relationship between the employer and employee has soured beyond reconciliation; is deep seated in common law; Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 334(S) at 349E-G; Winterton, Holmes & Hill v Paterson 1995 (2) ZLR 68(S). I think if it is to be overturned, it must be done so by a clear definite and positive enactment which manifests such an intent by Parliament and not an ambiguous one such as s3(2) of the Regulations which merely omits a reference to damages. I very much doubt that subordinate legislation can be employed to effect an alteration to the common law.”

It is clear therefore that an order for reinstatement which does not provide for damages as an alternative militates against the common law as well as the Labour Act.

In view of the above, it is not necessary in my view to consider the other grounds of appeal. The court a quo confined itself to the factual findings by the Disciplinary and Grievance Committee. It therefore serves no purpose to traverse the additional grounds which deal with issues not considered by the court a quo.

The appeal has obvious merit. The misdirection on the part of the court a quo is evident. It is for this reason that this Court allowed the appeal with costs as prayed.

GARWE JA		I agree

BHUNU JA 		I agree

Coghlan & Welsh, legal practitioners for the appellant.

Ndove, Museta & Partners, legal practitioners for the respondent.