Zimbabwe Revenue Authority v Stanford Sithole

### Preamble
Judgment No. SC 92/25
1
Civil Appeal No. SC 211/25
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REPORTABLE	(92)

ZIMBABWE     REVENUE     AUTHORITY

v

STANFORD     SITHOLE

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHITAKUNYE JA & MWAYERA JA

HARARE: 06 JUNE 2025 & 07 OCTOBER 2025

S. Bhebhe, for the appellant

T. Zhuwarara, for the respondent

CHITAKUNYE JA:		This is an appeal against the whole judgment of the Labour Court (the court a quo) dismissing the appellant’s appeal against a Designated Agent’s determination finding the respondent not guilty of charges of misconduct.

The respondent was employed by the appellant as a Revenue Officer stationed at ZIMRA Gweru.  On 29 August 2016 he was charged with having committed a Group D, category 3 offence; alternatively, of having committed a Group D category 25 offence under the Zimbabwe Revenue Authority Code of Conduct (hereinafter “the Code of Conduct”).

The matter was referred to a Designated Agent for determination who found the respondent not guilty of both the main charge and the alternative charge.

The appellant thereafter appealed to the court a quo, which upheld the Designated Agent’s decision and consequently dismissed the appeal.

Aggrieved by the court a quo’s decision, the appellant noted the present appeal.

FACTUAL BACKGROUND

The Respondent was employed by the appellant, Zimbabwe Revenue Authority (ZIMRA), in the capacity of Revenue Officer and was stationed at ZIMRA Office, Gweru.  In 2010, the appellant experienced slowness and congestion with its internet connectivity and challenges on its ASYCUDA system used to collect revenue.  Consequently, it tasked its ICT division to investigate the root cause of the problem.  During the investigations, and upon monitoring and assessment of the system, the investigators discovered that some employees were using their business email accounts to circulate pornographic material using the appellant’s corporate internet network thus congesting the network.

Upon tracking the emails transmitted over the appellant’s internet network, the division identified the employees and officers involved in the circulation of the pornographic material and this included the respondent.  It was discovered that between January 2010 and September 2010 about 13 emails containing such pornographic material were sent from the respondent's email account to fellow employees and other persons not recognized as its employees.  As a result, the respondent was suspended from employment on 20 January 2011.

The respondent was charged with an offence under Group D category 3 of the ZIMRA Code of Conduct that is- “wilfully applying a wrong use or unauthorised purpose to assets or property” of the appellant, in the main; alternatively, under Group D Category 25 of the Code of conduct that is - “carrying out any act which is inconsistent with the express or implied conditions of contract of employment.”  The prescribed penalty in respect of both the main and the alternative charge is that of dismissal from employment.

The matter was referred to a Labour Officer in terms of s 101(6) of the Labour Act [Chapter 28:01] (“the Labour Act”).  The Labour Officer, in turn, referred the matter to the Designated Agent (“the DA”) at the National Employment Council (NEC) Zimbabwe Revenue Authority Undertaking for determination, which NEC had just become functional.

PROCEEDINGS BEFORE THE DESIGNATED AGENT

Before the DA, the appellant alleged that by sending emails with pornographic material, the respondent had breached its IT policy, which mandates that computers and email facilities be used solely to advance the interests of the appellant.

The appellant referred to the cases of Shoko v Zimbabwe Revenue Authority LC/H/191/2016, Dick v Zimbabwe Revenue Authority LC/H/22/13, in asserting that these were similar matters in which the courts found the employees guilty of forwarding pornographic material.

The appellant called Mrs Huvava, the then Station Manager at ZIMRA Office, Gweru where the respondent was stationed and Mr Evidence Mazhindu, its ICT Manager.

In her evidence Mrs Huvava confirmed the circumstances that led to the ZIMRA ICT division being tasked to investigate the problems with the appellant’s internet connectivity.  She confirmed that the result showed that the respondent had sent 13 emails with obscene material to fellow employees over a period of about 9 months leading to the charges preferred against him as the sending of such material was against the appellant’s IT policy in particular clause 2.6.4 which states that the computer and email must be used to advance the appellant’s interests.  She also testified that in terms of clause 16 of the respondent’s contract of employment he was bound to uphold the highest standard of integrity.  She further alluded to the fact that it was not easy for anyone to hack/crack another employee’s email account as these were secured by, inter alia, a unique username and a unique password known only to the user, unless one was given those unique security features by the email account user.

Mr Mazhindu, as the appellant’s IT expert, testified on how the investigation was conducted and the results thereof. He indicated that he did not know any of the employees discovered to have been sending the offensive emails.   He testified that he did not retrieve the lewd emails from the respondent’s desktop computer, but rather accessed them remotely using the Riverbed system, which extracted data stored in Personal Storage Table (PST) files.  He averred that the PST file is an archive of the emails sent and received by the email account user.  The PST files show the emails sent and received giving details of the date and time of the email.  Each email has a unique time stamp, a unique date stamp and a unique internet header which gives predominantly all information one needs to know about the source, content and destination of the email.  Every employee email user has a unique username and a unique password which is only known by the user of the email account.  He further testified that if someone without the above security features tries to break into the account 3 times incorrectly the account would automatically lock.  He also testified that the unique password was difficult to crack as it comprised 3 special attributes which made it difficult to crack or hack.  These comprised, firstly, a combination of 8 characters made up of lowercase, upper case letters and numerals.  Such a combination makes it extremely difficult for someone to guess the correct password; secondly, given that on the third attempt, if a person gets it wrong, the account automatically locks; and thirdly, where the password is stored is encrypted.

Mr Mazhindu stated that his testimony was based solely on the PST files, which as noted from the above features, served as a secure archive of the respondent’s email history, thereby rendering them beyond challenge.  He further asserted that it would be extremely difficult for anyone to plant emails or gain unauthorized access through cracking, as contended by the respondent.

On the contention that someone could crack in and reset the email password                          Mr Mazhindu testified that if anyone reset the password then the account user would know or be alerted as he would not be able to login his email once the password has been changed.  In casu, the respondent never complained that his email account had been tampered with. He thus maintained that it was the respondent who had sent the offending emails.

Per contra, the respondent denied sending the offending emails.  He contended that he only became aware of the offending emails upon his arrest.  He surmised that the emails had been planted by the appellant’s management in a bid to suppress worker activism, as he was a member of the workers’ committee.  The respondent further asserted that, in his capacity as Treasurer of the trade union, both him and his union colleagues were targeted by the appellant’s management.  The respondent averred that, during a National Works Council meeting, a management representative, Mr Charles Jaure, labelled the worker representatives as “Jonas Savimbis.”

To buttress his contention that the emails in question could have been planted by the management the respondent called Mr Chisvo, an IT Specialist, who testified that it was possible for a third party to hack the email account and send emails from it if they had access to the respondent’s email address and password.  He proposed that an inspection in loco be conducted to substantiate this assertion.  Mr Chisvo further stated that the PST file did not constitute primary evidence, as it was unclear from where the data had originally been copied.  He also noted that all potentially critical evidence had been lost, as the server, desktop, and Riverbed system had since been upgraded.

The respondent also called Mr Chirenda, who testified that during the National Works Council Meeting, Mr Jaure, the appellant’s management representative, remarked to him that, “you are Savimbi and you are going to die musango musina chamunacho, like Jonas Savimbi, you are leading Savimbis.” (You are Savimbi you are going to die in the bush without anything like Jonas Savimbi you are leading Savimbis).  He stated that this reflected management’s intent to portray members of the workers’ committee as rebels, framing their trade union activities as acts of insubordination.  Mr Chirenda further testified that, during the inspection in loco conducted in Harare, no pornographic material was found on the computer used by the respondent.

FINDINGS BY THE DESIGNATED AGENT

In his determination the DA identified the critical issue as: ‘whether or not the respondent was responsible for circulating the alleged offensive emails.’  He found, inter alia, that the appellant did not dispute that the respondent used a shared desktop, and that no pornographic material was found on it during the inspection in loco.  He further noted that Mr Mazhindu conceded under cross-examination that, while hacking is difficult, it is not impossible.  He understood this to mean ‘to a lesser extent cracking is possible and one can send emails as if they were the rightful account users.’  He thus concluded that because of this possibility, appellant had not proved its case on a balance of probabilities.

On the issue of stare decisis, the DA held that given that the emails were not retrieved from the respondent’s personal computer, the case was distinguishable from Dick v Zimbabwe Revenue Authority (supra) and Dick v Zimbabwe Revenue Authority SC 16/15 where the emails were retrieved from the employee’s computer.

On the contention that this was a case of victimization, the DA held that the respondent’s allegation of victimization due to his role as a workers’ representative remained unchallenged by the appellant and was corroborated by Mr Chirenda’s testimony.  He also opined that a proper assessment required the use of the same hardware and Riverbed system that existed at the time the emails were sent, and tested in real-time conditions.  He concluded that, since the appellant had disposed of the entire original hardware used during the relevant period, its demonstration using PST files had no bearing on the allegation that the emails could not have been remotely planted.

The DA further held that while the respondent bore the burden of demonstrating the possibility that the emails could have been planted, the appellant rendered this impossible by having decommissioned the relevant hardware and system.

Ultimately, the DA found that the appellant failed to prove, on a balance of probabilities, that it is indeed the respondent who had circulated the offensive email material using the appellant’s computer and internet network.  In the result, the DA found the respondent not guilty on both the main and the alternative charges.

Aggrieved by the decision of the DA, on 22 March 2023, the appellant lodged an appeal in the court a quo.

PROCEEDINGS BEFORE THE COURT A QUO

In the court a quo, the appellant’s counsel submitted that there could be little doubt that pornographic material was sent from the respondent’s email address, which was secured by a unique password.  He further submitted that the DA’s conclusion that a third party could possibly send the offensive emails into the respondent’s email account was not buttressed by any evidence or factual basis.  There was no evidence adduced to show that anyone had sent the offensive emails using the respondent’s email account/address.

Counsel for the appellant submitted that the DA disregarded the principle of stare decisis by failing to consider and apply the decisions of both the court a quo and the Supreme Court in Shoko v Zimbabwe Revenue Authority (supra), Dick v Zimbabwe Revenue Authority (supra) and Dick v Zimbabwe Revenue Authority SC 16/15, all of which addressed materially similar issues and discounted the theory of a third party having planted the offensive emails found in the employees’ email accounts.

Counsel submitted that the appellant had discharged its burden of proof on a balance of probabilities, and hence the onus then shifted to the respondent to establish his defence that a third party had planted the offending emails, and he failed to do so.

On the issue of victimization of the respondent by virtue of him being a member of the workers’ committee/trade union, counsel submitted that the respondent was not victimized, as evidenced by other matters placed before the disciplinary authority including the cited cases of Shoko (supra) and Dick (supra), where employees with no affiliation to the workers’ committee were similarly charged, found guilty, and had their convictions upheld by superior courts.

In the court a quo, the appellant’s counsel also submitted that the DA’s finding of not guilty effectively reinstated the respondent to his pre-suspension position, which was an incompetent order in the absence of an alternative remedy for damages.

The respondent, on the other hand, contended, in the court a quo, that the appellant failed to prove its case.  Counsel for the respondent submitted that the appellant conceded that the system administrator had the ability to access the respondent’s email account by resetting the password.  He further submitted that the appellant did not demonstrate that it was impossible to hack an email account and did not dispute the claim that the respondent was not assigned a personal computer.

Counsel for the respondent also submitted that the doctrine of stare decisis does not compel adherence to precedent where the factual context in the present case is materially distinct from that which informed the earlier decision.

He further submitted that the order issued by the DA was competent, as the remedies of reinstatement or damages in lieu thereof do not arise in proceedings instituted under  s 101(6) of the Labour Act.  Since he was never dismissed, the DA merely concluded the disciplinary proceedings by acquitting him of all the charges, rendering any discussion of reinstatement or damages entirely inapplicable.

FINDINGS BY THE COURT A QUO

The court a quo held that it was not in dispute that the emails in question were sent from the respondent’s email address and that each employee was assigned a unique username and a unique password which could not be shared with any other person to ensure that the employee had restricted access to his email account.  It also observed that without the unique password no person other than the respondent could access his email account and send emails as if it was the respondent.  The court a quo, however, went on to uphold the DA’s finding that the appellant had failed to prove its case on a balance of probabilities.  The basis for so upholding was that                           Mr Mazhindu, the IT expert, had conceded that, while email hacking was difficult, it was not impossible.

The court a quo also held that as the respondent did not have a personally assigned computer, the computer used was compromised.  According to the court a quo, the sharing of the computer with other employees meant that other persons could have sent the emails found in the respondent’s email account, apparently even without the respondent’s password.

The court a quo therefore upheld the DA’s finding that the appellant had not proved its case on a balance of probabilities because it had failed to establish ‘that it was indeed the respondent who had sent the emails and that there was no possibility whatsoever of hacking’.

Premised on the above standard of proof the court a quo held that the appellant had not proved that it was the respondent who had sent the offending emails.

On the alleged victimization of the respondent in his capacity as an executive member of the workers’ committee/ trade union, the court a quo held that the DA could not be faulted for finding that the respondent had been subjected to victimization.

On the application of the doctrine of stare decisis, the court a quo upheld the DA’s finding that in casu, this was inapplicable as the factual conspectus was different.  It opined that the case of Dick v ZIMRA (supra) was distinguishable in that in that case the offending emails were retrieved in the employee’s desktop server whilst in casu, the computer used by the respondent was no longer available as it had been decommissioned.  The court a quo, thus concluded that the DA's decision to regard Dick’s case as inapplicable was consistent with the principles underpinning stare decisis.

On the question of the alleged failure by the DA to award an alternative relief for damages, the court a quo held that it was the position of the law that an order for reinstatement must necessarily include an alternative for damages in terms of s 89 (2)(c)(iii) of the Labour Act. As a result, the court issued the following order:

1. The appeal is partially allowed as regards the insertion of an alternative order for payment of damages in lieu of reinstatement.

2. The appeal be and is hereby dismissed in all other respects.

3. The Appellant shall pay costs of this appeal.

Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

1. The court a quo erred in law in finding as it did that the appellant had not discharged the burden of proof upon it to prove the misconduct offenses as it had not proved that hacking the emails was not impossible, despite the common cause fact that the emails were sent from the respondent’s email address, which only he could access with a unique password.

2.  In so doing, the court a quo erred in law in relying and applying a standard of proof higher than the required balance of probabilities and erred in law in imposing that higher standard of proof on the appellant to prove the allegations beyond a reasonable doubt.

3. The court a quo erred in law in finding that the respondent did not have to discharge the burden of proof or onus upon him to prove his defense, being that someone else had hacked his email and, in so doing, the court a quo shifted the burden of proof of the respondent’s defense onto the appellant.

4. The court a quo erred in law in upholding the Designated Agent’s finding that the respondent had been victimised when there was no evidence upon which such a finding could be made.

5. The court a quo erred in law failing to apply the principle of stare decisis, and departing from previously decided case authority, of both concurrent and superior courts, without properly distinguishing those decisions or demonstrating why they were not binding on it.

6. The court a quo erred in law in granting an order for the insertion of an alternative order for payment of damages in lieu of reinstatement when no substantive order had been made by the designated agent reinstating the respondent to employment.

The appellant sought the following relief:

The appeal be and is hereby upheld with costs.

The judgment of the court a quo be and is hereby set aside in its entirety and substituted with the following:

“1. The appeal be and is hereby upheld with costs.

2. The determination of the Designated Agent, Jealous Zhakata, dated 13 March 2023 be set aside in its entirety and substituted with the following order:

‘The respondent is guilty of willfully applying a wrong use or unauthorised purpose to assets or property in terms of Group D, Category 3 of the Claimant’s Code of Conduct and is hereby dismissed from employment with effect from the date of his suspension.

Or, alternatively:

The respondent is guilty of carrying out an act which is inconsistent with the express or implied conditions of the contract of employment in terms of Group D, Category 25 of the Claimant’s Code of Conduct and is hereby dismissed from employment with effect from the date of his suspension.’”

SUBMISSIONS BEFORE THIS COURT

In motivating the appeal, Mr S Bhebhe, for the appellant, submitted that the court            a quo, having found that pornographic material was sent from the respondent’s email address and that, without the unique password only known to the respondent, no one other than the respondent could access the email account, it follows that the evidentiary burden shifted to the respondent to prove that someone else had accessed his account.  He further submitted that the court a quo, just as did the DA, found that the respondent had not discharged such evidentiary burden.  The court         a quo nevertheless excused him on the premise that he was not afforded access to the hardware (desktop computer) that had been decommissioned.

Counsel argued that the court a quo misdirected itself by placing the burden on the appellant to prove that it was impossible for a third party to have hacked the respondent’s email account.  By requiring proof of impossibility, the court a quo, just as did the DA, set a very high standard of proof beyond reasonable doubt on the appellant when all that was required was proof on a balance of probabilities.

On the issue of the absence of personal computer for the respondent during the period of the allegations, counsel submitted that the absence of a personalized computer was immaterial, as the pornographic material was sent from the respondent’s personal email address and were extracted from PST files containing the respondent’s archived emails.

Relying on the cases of Shoko v ZIMRA (supra), Dick v Zimbabwe Revenue Authority (supra), upheld in Dick v Zimra SC 16/15, counsel submitted that speculative claims of third-party access were insufficient without supporting evidence.  Counsel further submitted that the administrators could not have planted the emails, as the PST files were not susceptible to alteration and constituted primary sources retrieved from the server, rendering the physical location of the emails immaterial.  It was not the hardware that contained the emails but the email account which could be accessed from any compatible gadget using the email account user’s username and password.

Per contra, counsel for the respondent, Mr T Zhuwarara, submitted that the court           a quo, sitting in its appellate capacity, was correct in finding that the DA’s factual findings were not so egregious as to warrant interference.  Counsel submitted that the appellant had compromised the respondent’s ability to prove hacking by upgrading the system, rendering the server and the respondent’s computer in use at the time unavailable.  Counsel further contended that the production of the PST files did not preclude the possibility that someone, without the respondent’s username and password, could have sent the pornographic emails.  He submitted that the credentials might have been accessed remotely, either by an administrator or via the shared computer.   Counsel also submitted that the system in use at that time was vulnerable to remote access without the respondent’s knowledge or consent as evident from the fact that the IT division had retrieved the emails without seeking the respondent’s password.

ISSUES FOR DETERMINATION

1. Whether or not the court a quo erred in finding that the appellant had failed to prove on a balance of probabilities that the respondent was guilty of the misconduct charges preferred against him.

2. Whether or not the court a quo misdirected itself in finding that the respondent was subjected to victimization and that the charges were a result of such victimization.

3. Whether or not the doctrine of stare decisis was applicable in the circumstances.

4. Whether or not the court a quo erred by ordering the inclusion of an alternative order for damages in lieu of reinstatement.

ANALYSIS

Whether or not the court a quo erred in finding that the appellant had failed to prove on a balance of probabilities that the respondent was guilty of the misconduct charges preferred against him.

This issue arises from the first three grounds of appeal.  The appellant’s main contention is that the court a quo misdirected itself by upholding the DA’s finding that it had failed to prove the respondent’s guilt on a balance of probabilities.  The court a quo had in effect raised the standard of proof to at least one of ‘proof beyond reasonable doubt’ when in labour disputes the standard of proof ought to be on a balance of probabilities.

The respondent, on the other hand, seemed content with the manner in which both the DA and the court a quo dealt with the issue of standard of proof in holding that the appellant had not proved the respondent’s guilt on a balance of probabilities.

It is trite that the standard of proof required in civil cases is on a balance of probabilities.  The same standard of proof required in civil cases also applies to labour matters. This means that the party alleging a fact must prove that it is more likely than not that the fact is true.  In Nyarumbu v Sandvik Mining and Construction Zimbabwe (Pvt) Ltd 2013 (2) ZLR 10(S) at 13B-C, Patel AJA (as he then was) stated as follows:

“As a general rule, the standard of proof required in disciplinary matters is that on a   balance of probabilities. This is obviously not as stringent as the standard required in criminal cases. By the same token, a disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law.”

In Kujinga v Old Mutual Life Assurance (Private) Limited SC 122/23 on p 12, the Court aptly stated that:

“It is trite that the degree of proof in labour issues is on a balance of probabilities.  In the case of British American Tobacco Zimbabwe v Chibaya SC 30/19 the court cited the case of Miller v Minister of Pensions (1947) 2 AII ER 372, 374, wherein the following was said regarding proof on a balance of probabilities:

‘It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the 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.’”

Further, in Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E - 504B this Court stated that:

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities.  The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict.  A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual.  Thus, a person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals.  The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.

Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief …

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.”

In casu, before the DA, the appellant’s duty was to prove that its version of events was more likely to be the truth than that of the respondent.  The DA appeared to have been alive to this when he stated that the burden of proof lay on the appellant to prove on a balance of probabilities that the respondent had sent the pornographic emails.  However, in his findings, the DA then went on to impose a higher standard of proof on the appellant to prove, with elements of certainty, that hacking was impossible and that it was indeed the respondent who had sent the offending emails found in his email account.  This requirement in fact transcends the ‘proof beyond a reasonable doubt’ required in criminal cases.  This is borne out by findings by the DA, which the court a quo upheld that:

“While Mr Mazhindu, the complainant’s IT expert witness, under cross examination stated that it is difficult to crack an email in the circumstances of this case, I should state that he never said it is impossible.  This is because “difficult” does not mean impossible.  People always perform difficult operations.  This means to a very lesser extent; one can crack in and send emails as if it were the defendant.” (for emphasis)

Thus, according to the DA, the possibility even ‘to a very lesser extent’ that one can crack and send emails using another’s email account disentitled the appellant to success on a balance of probabilities.  This is certainly not the position of the law.

The court a quo in upholding the above findings and basis thereof stated that:

“The Designated Agent relying on the evidence placed before him correctly found that the appellant had failed to establish that it was indeed the Respondent who had sent these emails, and there was no possibility whatsoever of hacking.”

And further on that:

“In light of all these disputed arguments, the Designated Agent correctly found that it was not impossible that the Respondent’s email could have been hacked…” (for emphasis)

It is self-evident that the DA required the appellant to prove with some certainty that it was indeed the respondent who had sent the emails in question and further that there was no possibility whatsoever of hacking.  He also required the appellant to prove that it was impossible to hack.  This standard of proof was upheld by the court a quo, yet this is not the applicable standard of proof in labour disputes.  As noted in the authorities cited above all that was required was for the appellant to prove on a balance of probabilities that its version was the more probable in respect of each of the factors that needed to be proved.

The court a quo failed to realize that the test for a balance of probabilities simply requires a party to prove that their version of events is more likely than not to have happened.  This means the evidence in their favour must tip the scales, however, slightly, towards their claim, typically considered a 51% likelihood, though the amount of evidence needed may vary.  (See Dube v Murehwa and Another SC 68/21).  There is no requirement for proof beyond reasonable doubt.

The court a quo clearly erred and misdirected itself by upholding the DA’s expectation that for the appellant to prove its case on a balance of probabilities it had to prove with certainty that no other person could have sent the emails except the respondent and that hacking was impossible.  As noted above in disciplinary matters the employer is only required to prove that ‘it is more probable or more likely than not that the employee has committed the offence he or she is charged with’.

As a consequence of applying the wrong test, the court a quo failed to properly examine the evidence that had been placed before the DA and its probative value as it had its eyes on the need for proof beyond any reasonable doubt of the facts being testified upon.  In the process it failed to consider the cogency of the evidence placed before the DA.

The cogency of the evidence by the appellant’s IT expert on the attributes of PST files and the security features seem to have been overlooked in preference to the argument that the computer that the respondent used, more than 10 years before the hearing, should have been provided for the respondent’s IT expert Mr Chisvo to demonstrate that hacking was possible.  In the court a quo’s view, the failure to produce the computer or gadget the respondent used in 2010 and the fact that that computer was a shared computer meant that the appellant could not prove that it was indeed the respondent who had sent the offending emails that were sitting in his email account as others had access to the same computer.

Both the DA and the court a quo failed to appreciate evidence to the effect that access to an email account is by username and password and not by the use of a particular computer.  The use of a shared computer would not give access to individual email accounts unless one employs the email account user’s username and password.  It eluded the court a quo that it is the cogency of the evidence that matters vis- a- vis the issues at stake and not the physical gadget.  (see Zimbabwe Mining Development Corporation v Hambakachere SC 2/20).

As a result of the misapplication of the standard of proof and failure to appreciate that the hardware used in 2010 was immaterial, as the data had already been securely archived in the system’s archives, the court a quo failed to appreciate the cogency of the evidence that was presented before the DA.

For instance, Mr Mazhindu had clearly testified that the PST file is an archive of emails sent and received by the email account user.  As an archive it cannot be breached as was being contended by the respondent.  His evidence included that PST file is a proprietary file format utilized by Microsoft Outlook (the email computer program) to archive and store email data, including sent and received emails, attachments, calendar entries, folder structures, and associated metadata, such as timestamps and sender and recipient information.  It preserves the integrity and structure of the original data as stored in outlook.  He further stated that whilst the PST files can be accessed on any compatible system, no alteration can be made to their content.  When extracted the files are secured in read-only formats thereby rendering them incapable of manipulation.  The properties of the PST files are such that the files retain full evidentiary value even in the absence of the physical device from which they were originally sent.

Mr Mazhindu reiterated that the emails in issue had been retrieved using the riverbed system and the data was stored in PST files, which could not be tampered with.  On the ability of the system administrator to access the email account, Mr Mazhindu stated clearly that the administrator was able to see the material but could not alter it as he would not be having the account user’s password. This evidence was not demonstratively shown to be incorrect.

On the respondent’s contention that management had planted the offensive email onto his account Mr Mazhindu testified that hacking or cracking as suggested by the respondent was extremely difficult due to the security features attendant to the respondent’s email account.  In this regard he reiterated the unique features of the respondent’s password.  If anyone was to hack or crack, they would have to guess the correct 8 characters constituting the password comprising letters in lower case and upper case and numerals in their correct sequential order.  Three failed attempts would result in the account locking and the lawful user would inevitably be alerted as he would not be able to login.  The impact of this evidence by the appellant’s ICT manager eluded the court a quo on the difficulties of hacking in such a system.  The court a quo instead preferred the statement that hacking, though difficult was not impossible.  Because of that possibility, remote as it might be, the court a quo upheld the DA’s finding that the appellant had not proved its case on a balance of probabilities.

It was lost to the court a quo that the issue was not on possibilities, but whether there was evidence of hacking as was being contended by the respondent in the face of the security features in place.  The respondent did not substantiate the contention that his email account had been hacked by management.  It remained mere conjecture.  He acknowledged that he never shared his unique password with anyone.  He also stated that for the period in question, January 2010 to September 2010, he never noticed any interference with his email account.  Yet, according to the IT expert, had someone altered his password by resetting it, the respondent would have noticed it as he would not have been able to login due to the change in the password.  Equally had someone tried to hack or crack in by guessing the password three failed attempts would have resulted in the account being locked leading to the respondent not being able to access his account.  This never happened.

Given the above circumstances it was incumbent upon the respondent to substantiate how someone planted the emails into his email account over a period of 9 months without him noticing anything or even being alerted about such breaches.  This, the respondent did not do.  At the most he seemed to rely on the evidence of his IT witness, Mr Chisvo.  Unfortunately,           Mr Chisvo’s evidence did not confirm that the respondent’s email account was hacked.  He, in fact, stated that hacking or cracking was possible if someone had the respondent’s username and password.  He did not indicate who, besides the respondent, knew or had access to the respondent’s unique password.  It thus remained sheer speculation that someone in management planted the offensive material onto the respondent’s email account.

In Dick v Zimra supra, Shoko v Zimra supra and Selamolela v Zimra LC/MT/84/15, which cases were unearthed during the same period of investigations as the current case, the employees’ defence of a third party hacking their respective email accounts was rejected as they had failed to substantiate such allegations just as in this case.

The court finds that the evidence by the appellant established on a balance of probabilities that the respondent had sent the offending emails containing the pornographic material.  The DA and the court a quo held that the appellant had not proved its case because of the wrong standard of proof they employed.  It is clear that the court a quo erred and misdirected itself in raising the standard of proof to a level higher than on a balance of probabilities and in considering that the existence of a possibility of hacking, remote as it might be, renders the requisite standard of proof not established.  The court finds merit in the first, second and third grounds of appeal. The appeal ought to succeed on those grounds.

Whether or not the court a quo misdirected itself in finding that the respondent was subjected to victimization.

The respondent, before the DA up to this Court, contended that he had been victimized by the appellant because he was a member of the workers committee and the appellant was averse to trade union members.  In his analysis, the DA indicated that the evidence of victimization stood unchallenged and was corroborated by the respondent’s witness, Mr Chirenda.  The DA proceeded to hold that victimization was at play during the days when the allegations against the respondent arose and so victimization cannot be downplayed.

The court a quo upheld the DA’s findings on victimization and stated that evidence on victimization had not been challenged.  In upholding the DA’s finding that the issue of victimization had remained uncontroverted, the court a quo erred.  A careful perusal of the proceedings shows that the appellant denied that the misconduct charges were a way of victimizing the respondent for being a member of the workers’ committee or trade union.

The respondent’s key witness on the issue of victimization was Mr Chirenda.  The key remarks relied upon in this regard related to the allegation that a management member, Charles Jaure, had in a National Works Council meeting likened the trade union leaders to Jonasi Savimbi, as earlier alluded to.  It is worth noting that in his evidence, Mr Chirenda also stated that Mr Jaure’s remarks were addressed to him as the leader of the workers’ committee/trade union.  He also stated that Mr Jaure later apologized to him for the unsavory remarks.  Besides those remarks, in that one meeting, there was no evidence of any other incident which would show that Jaure’s remarks were reflective of the appellant’s management’s stance vis-a-vis its employees who were members of the trade union.

The appellant’s position was that the charges against the respondent were not a furtherance of the remarks complained of but were a result of an investigation by its IT division after experiencing challenges with its internet connectivity.  What was not challenged is that the incident, during the national works council meeting wherein Mr Jaure made the unsavory remarks, occurred.  However, the connection that the respondent sought to make between those remarks and the charges he was facing was challenged as being not true.  The appellant vigorously argued that it was not true that the charges were targeted at the respondent by virtue of being a member of the workers’ committee but because he had committed acts of misconduct unearthed during the investigations.

To buttress this position, the appellant alluded to the fact that other employees, who were not members of the trade union, had also been charged and convicted on similar charges that arose from the same investigations.  In this regard it referred to the three cases cited above of Dick v Zimra (supra), Shoko v Zimra, (supra) and Selamolela v Zimra (supra).  Dick was a manager in the audit department whilst Shoko was an administration officer yet they were also charged with identical acts of misconduct as the respondent arising from the same investigations.

It was therefore erroneous on the part of the DA to hold that the allegation of being victimized in these charges were not controverted.  Equally the court a quo erred in holding that such allegations were not challenged.

In view of the appellant’s stance in this regard, it was incumbent upon the respondent to establish that, in his case, he was targeted as a member of the trade union and not that he had breached the code of conduct.  One cannot escape the consequences of breach of the code of conduct on the bare assertion that they were being victimized as workers’ representatives. Evidence ought to have been adduced showing that he had not breached the code of conduct but was being targeted as he alleged.  See Air Zimbabwe v Mnensa. SC 89/04

In any event, the issue of victimization did not take away the fact that the offending emails were found in the respondent’s email account and it was upon the respondent to establish that the emails found in his account had been planted by management.  This he did not do.

Whether or not the principle of stare decisis was applicable in the circumstances.

The appellant’s counsel submitted that the court a quo erred and misdirected itself in upholding the DA’s finding that the doctrine of stare decisis was inapplicable in this case.

Counsel referred to the three similar cases, namely Dick v Zimra (supra), Shoko v Zimra (supra) and Selamolela v Zimra (supra), which involved identical charges and the same PST file evidence was relied upon, and the courts found the evidence sufficient to prove the employees’ guilt on a balance of probabilities.  In his view, the same result ought to have been rendered.

On the contrary, the respondent’s counsel submitted that there were material distinctions between the present appeal and Dick v ZIMRA (supra), rendering the latter inapplicable and not binding.

The doctrine of stare decisis mandates courts of equal jurisdiction to adhere to established precedents set in previous decisions unless compelling justification exists to depart from them.  In The Commissioner General - Zimbabwe Revenue Authority v Benchman Investments (Pvt) Ltd SC 88-21, at p 11-12, Mathonsi JA held that:

“The doctrine of precedent is expressed in the maxim stare decisis et non quieta movere which, loosely translated, means to stand by the decision and not to disturb what is settled. Where a Judge enjoying the same level of jurisdiction with one who has made a pronouncement on the law desires to depart from the previous decision, he or she must show that the earlier decision is wrong or that the law has since evolved.

In such a situation, it must be shown that it is unconscionable to abide by the previous decision.  In my view it is not enough for the judge to merely declare that he or she does “not agree with the conclusion” previously made.  Neither is it sufficient to say that the decisions that have interpreted a statutory provision proceeded from “a flawed premise” without demonstrating how, and indeed why, the interpretation is wrong.  The court a quo clearly misdirected itself in rejecting the previous decisions of the High Court on the citation of the appellant without justification.”

The doctrine of stare decisis applies to questions of law rather than findings of fact.  It is well established that the outcome of any case must be determined by the particular facts, evidence, and legal arguments presented in that specific matter.  In Kubheka & Anor v The State [2021] ZASCA 25, at para 10, the court held that,

“One of course, must be cautious about comparisons with other cases.  Each case must be decided on its own merits.”

The same sentiments were expressed in Mutsure v The State SC 62/21 at para 49.

In casu, the respondent and Dick (supra) were both charged with disseminating offensive material from their respective email accounts, although Dick had used her own machine, whilst the respondent in casu used a shared computer.  The important factor is that the source of the said obscene material was the work emails accounts.  Further, as mentioned earlier, just like the respondent in casu, Dick averred that she had been hacked and the said email had been planted by the appellant; however, no evidence was tendered to support that averment.  In Dick (supra), the employee unequivocally refused to answer whether or not she knew the recipient of the offensive material and an adverse inference was drawn from such refusal.

In casu, the issue of whether the respondent knew the recipients of the emails did not arise.  It was not disputed that many of the recipients of the emails were fellow employees.  What is, however, apparent in the court a quo’s decision is that it held that there was a marked distinction justifying not adhering to the doctrine of stare decisis, in that in Dick’s case the employee had a personally assigned computer from whose server the offending material was found whilst in casu, the respondent used a shared computer and the computer hardware he used had been decommissioned.  Thus, based on its finding, erroneous as it is, the court a quo cannot be faulted on non-adherence to stare decisis.  The error was in holding that the computer hardware the respondent used in 2010 was materially relevant in establishing that the respondent’s email account could have been hacked, when such a fact could have been established without the use of the decommissioned computer.  Nothing much turns on this issue.

Whether or not the court a quo erred by ordering the inclusion of an alternative order.

The appellant’s counsel submitted that the court a quo misdirected itself in amending the DA’s determination to include an alternative relief for damages in lieu of reinstatement when there was no order for reinstatement.

Per contra, the respondent’ counsel submitted that the appellant mischaracterized the facts in its seventh ground of appeal before the court a quo by claiming that the DA erred in law by ordering reinstatement without an alternative remedy.   Counsel further submitted   that no such order for reinstatement was made, as the respondent remained employed throughout the proceedings.

It is noteworthy that the respondent was never dismissed from employment.  The DA rendered a determination finding the respondent not guilty of the charges preferred against him. At that time the respondent was on suspension and his employment had not been terminated. Consequently, as rightly observed by the respondent’s counsel, there was no question of reinstatement or damages in lieu thereof, since no dismissal had taken place.  The finding of not guilty effectively served to lift the suspension, thereby restoring the respondent to active employment.  Had the respondent been dismissed, issues of reinstatement or compensation in lieu thereof would have legitimately arisen.

It is apparent from the record of proceedings that it is in fact the appellant who created the impression to the court a quo that the DA had ordered reinstatement and that such order was incompetent without an alternative order for damages.

It is trite that where reinstatement is ordered it ought to be accompanied by an alternative relief of damages in lieu of reinstatement.  See Hama v NRZ 1996(1) ZLR 664 (S) and Olivine Industries (Pvt) Ltd v Gwekwerere 2005 (2) ZLR 421 (S) and s 89 (2)(c)(iii) of the Labour Act.  Where there is no order for reinstatement, as there was no dismissal, it is not competent to grant an order for damages in lieu of a non-existent order for reinstatement.  The court a quo erred and misdirected itself in altering the DA’s determination to include an order for damages in lieu of reinstatement.  The court a quo ought to have realized that the DA never ordered reinstatement as the respondent had not been dismissed from employment but had simply been on suspension. The effect of the order by the DA was to lift the suspension and leave the respondent in the position he was in before the suspension.

The order of the court a quo for the insertion of damages in lieu of reinstatement cannot stand.

DISPOSITION

It is clear that the court a quo erred and misdirected itself in upholding the DA’s finding that the appellant had not proved its case on a balance of probabilities because it had failed to prove that hacking was impossible, in other words, that there was no possibility whatsoever of hacking. By making such a requirement of the appellant the court a quo and the DA placed a standard of proof beyond a reasonable doubt whereas in labour matters the standard of proof is on a balance of probabilities.  The higher standard of proof led to the court a quo failing to appreciate the cogency of the evidence placed before the DA and its probative value as its eyes were set on proof beyond reasonable doubt.  The appellant was only required to show that its version of the facts showing that the respondent had breached the code of conduct was more probable than that of the respondent that the offending emails had been planted by the appellant.

The appeal has merit and ought to succeed.  The evidence adduced established that the offending emails were found in the respondent’s email account and the respondent failed to substantiate his contention that the email material had been planted in his email account by the appellant.

There is no reason why costs should not follow the cause on the ordinary scale.

Accordingly, it is ordered as follows:

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

The judgment of the court a quo be and is hereby set aside in its entirety and substituted with the following:

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

2. The determination of the Designated Agent, Jealous Zhakata, dated 13 March 2023 be set aside in its entirety and substituted with the following order:

‘The respondent is hereby found guilty of wilfully applying a wrong use or unauthorised purpose to assets or property in terms of Group D, Category 3 of the ZIMRA’s Code of Conduct and is hereby dismissed from employment with effect from the date of his suspension.”

As a consequence of the conviction on the main charge the respondent is found not guilty and is acquitted on the alternative charge under group D, category 25 of the ZIMRA code of conduct that is; ‘carrying out any act which is inconsistent with the express or implied conditions of employment.’

UCHENA JA		:	I agree

MWAYERA JA	:	I agree

Kantor & Immerman, appellant’s legal practitioners

Matsikidze Attorneys At Law, respondent’s legal practitioners