Brian Risinamhodzhi v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/40/25
HARARE, 12th MAY 2024
CASE NO LC/H/1072/22
AND 4th JANUARY, 2025
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 12th MAY 2024 AND 4th JANUARY, 2025

JUDGMENT NO LC/H/40/25

CASE NO LC/H/1072/22

BRIAN RISINAMHODZI	APPELLANT VS

CITY OF HARARE	RESPONDENT

Before the Honourable Chivizhe, Judge:

For Appellant	-	Ms. V. Vhera (Legal Practitioner)

For Respondent	-	Mr. A. Moyo with Ms. C. Jackson (Legal Practitioners)

CHIVIZHE, J:

The appeal was noted as against the determination of the Respondent’s Disciplinary Committee handed down on 17th October, 2022. The appeal is opposed. In relief Appellant prays for an order in the following terms;

“1. The appeal succeeds;

The decision of the Respondent’s Disciplinary Committee to dismiss the Appellant be and is hereby set aside.

The Appellant be and is hereby reinstated without loss of salary and benefits.

If reinstatement is no longer an option, the Respondent be and is hereby ordered to pay the Appellant damages in lieu of reinstatement which must be agreed between the parties’ failure of which the matter should be set down before the Honourable Court for quantification of damages.

The Respondent be and is hereby ordered to pay costs of suit on a legal Practitioner client scale.”

BACKGROUND

The Appellant was employed by the Respondent in the position of Housing Allocation Clerk but was working as an Acting Assistant Research Officer in the department of Housing and Community Services. The Respondent convened a disciplinary hearing for the Appellant on the 3rd of August 2020. The Appellant was to answer to two charges, namely (1) contravention clause 10.5 (f) alternatively clause 10.5(t) of part VI of the Collective Bargaining Agreement; Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 13 of 2015, Clause 10.5(f) related to a charge of Fraud which is defined under the relevant code to mean, ‘to unlawfully make misrepresentation whether written or oral which misrepresentation must cause actual or potential prejudice to the employer or any person.’

The allegations surrounding the charge were that Appellant was said to have in April 2020 misrepresented to Mr Owen Madondo that stand number 128 was a genuine sale thereby causing the said Mr Madondo to part with USD $19 000 as payment for the stand. The money received was said to have been shared between the Appellant and his accomplices.

Clause 10.5 (t) related to any act, conduct or omission grossly inconsistent with the fulfilment of express or implied conditions of one’s contract: express conditions are those that are clearly written in one’s contract of employment as read with the job description and implied conditions are those that may not be specifically laid down in any enactment but which the law will nevertheless consider part of the contract of employment.

The allegations behind this charge were that in April 2020, the Appellant in collusion with Mr Majena, Mr Bgwende and Mr Gona manipulated the City of Harare allocation system for residential stands by laundering the allocation of stand number 2128 and a layout plan, plan number TPF/ER/14/16 well knowing that the layout plan had been brought by unofficial means and was therefore unapproved.

At the disciplinary hearing the Appellant pleaded not guilty. The complainant then presented the case outline. It was submitted that there was a layout plan reference number TPF/ER/14/16 which was an unapproved proposed subdivision on remainder of 137 Midlands Township, Waterfalls which was allocated to 15 beneficiaries in 2019. The Appellant and his accomplices had allegedly proceeded to fraudulently create another layout plan with the same particulars but with 17 stands. One of those stands, 2128 was then sold to an unsuspecting client, one Mr Owen Madondo who had parted with USD $19 000. The Appellant was said to

have in particular facilitated the payment of $100 RTGS for Mr Madondo to be placed on the waiting list. He had also made him pay $150 RTGS as intercessory fees. He then interviewed him himself. It was the complainants’ submission that by so doing he misrepresented that the allocation was genuine resulting in Mr Madondo parting with USD $32 000 as a result of the fraudulent sale.

On the alternative charge the complainant’s position was that the Appellant had received the layout plan with 17 stands from one Tapiwa Gona, a dismissed Council employee. The Appellant had then generated and facilitated a request for the valuation of the 17 stands in exchange for the depiction of stand 2128 on the same plan which plan had been fraudulently made by one Mr Mgera of the Survey section. The request for valuation was signed by DHCS Director but upon reference to the City Valuation and Estate Manager was not actioned as it became apparent that there was another request for valuation for the official plan with 15 stands. The Appellant had thereafter proceeded to sell the stand through a Mr Mbgwende to an unsuspecting stand seeker Mr Owen Madondo. Appellant was said to have received USD $7 500 out of the $19 000 USD. Further facts revealed that Mr Madondo had proceeded to develop the stand and suffered a further loss of USD $13 000 then the development was stopped by Council.

The Appellant pleaded not guilty. In his defence he submitted that he had not played any part in the scheme to defraud his employer or the client. He also did not know or deal with the said Mr Madondo. It was his submission that Tapiwa Gona had brought the documents. Appellant denied causing any prejudice either to his employer or to Mr Madondo.

The complainant led evidence from three witnesses at the disciplinary hearing. The Appellant also presented his own testimony after which he was cross-examined. After considering the evidence as was led by the parties, the Disciplinary Committee on the 3rd of October 2022 returned a verdict of guilty of fraud as reflected in the charge sheet. The parties were thereafter requested to present mitigation or aggravation. On the 17th of October 2022, the disciplinary committee imposed a penalty of dismissal from council service with effect from the 21st of October, 2022. The Appellant being aggrieved then noted the present appeal with this court.

GROUNDS OF APPEAL

The appeal has been noted on the basis of the following grounds;

Ad Conviction

The Disciplinary Committee grossly erred and misdirected itself on facts and law in applying the ‘caveat subscriptor rule’ in placing reliance on the Appellant’s two self-incriminating statements, which statements the Appellant had disowned and explained that the statements had been made under undue influence.

The Disciplinary Committee erred and misdirected itself in holding that there was no evidence of duress when the Appellant never pled duress but pled that he had been unduly influenced by his superiors to depose to the two statements which the Disciplinary Committee relied on to reach it’s conviction.

The Disciplinary Committee grossly erred and misdirected itself on the facts and law in finding the Appellant guilty of fraud when it had no other evidence which proved the elements of the fraud besides the Appellants confessions which confessions had been made when the Appellant was under due influence.

Ad Penalty

The Disciplinary Committee grossly erred and misdirected itself by imposing the penalty of dismissal which is excessive and induces a sense of shock regard being had to all the circumstances of this case which called for a lighter sentence to be imposed.

The Respondent is opposed to the appeal. Through an opposing affidavit by Phakamilo Mabhena Moyo, the Respondent’s acting Town Clerk, the Respondent contends that all the grounds as presented lack merit and ought to be dismissed as Appellant was properly dismissed on the basis of evidence presented in the disciplinary hearing. In regards to the issue of the penalty of dismissal, the Respondent contends that it was appropriate in the circumstances of the case. The Appellant having been convicted of a breach going to the root of the contract, the dismissal penalty was the appropriate penalty. The Respondent’s prayer is for the dismissal of the appeal with the costs.

PARTIES SUBMISSIONS

Ms Vhere for the Appellant, submitted that she was abiding with the Appellant’s heads of argument as filed. She however, was emphasising on two points. Firstly, the issue of lack of evidence led by the Respondent to prove the two charges levelled. It was her submission that the Disciplinary Committee relied on the two statements allegedly made by the Appellant but which the Appellant himself dismissed on the basis of undue influence having been placed on

him. Ms Vhere also attacked the over reliance on the three witnesses called by the Respondent which evidence was unreliable and insufficient to justify the Appellant’s conviction or the charges. She also emphasised that in view of the Appellant’s own testimony given, that he had been influenced by his own superiors to write the two statements, it was grossly unreasonable for the Disciplinary Committee to have returned a verdict of guilty based on those statements. It was the Appellant’s contention that he had successfully proved undue influence before the Disciplinary committee. It was the Appellant’s second submission that no evidence having been led to support the charge of fraud, the elements not been proven there was no basis for conviction on the charges. The Appellant had referred to authorites in his heads of argument in support of this position including Kundishora v Zimbabwe Redcross Society SC 48/20; Chikonzo v Delta Beverages (Judgement LC/H/265/2010).

Mr Moyo, for the Respondent, addressed the specific grounds of appeal as raised by the Appellant. On the first ground he submitted that the Disciplinary Committee correctly found that no undue influence had been brought to bear upon the Appellant in signing the two statements. They had also correctly applied the caveat subscriptor rule to reach their conclusion. Besides the Appellant had also clearly failed to show on a balance of probabilities that he signed the statements under duress or undue influence. The Respondent had referred to Mkwananzi v Sibanda and 7 others (HB 125 of 2021) in support of his position.

With regards to the second ground of appeal, Mr Moyo submitted that once the statements were accepted as properly placed before the court then the second ground also had to fail as it relates to the same issue of the sworn statements by the Appellant.

In relation to the ground where the Appellant was suggesting that there had been no evidence led to establish fraud, Mr Moyo submitted that once the statements were accepted then the issue of lack of evidence is immaterial as the Appellant was clearly in those statements admitting to having committed fraud. It was also clear on the basis of the Disciplinary Committee’s record of proceedings that the three witnesses had led sufficient evidence to establish the charge. The evidence led was to establish that the Appellant could only have requested evaluation based on an approved plan. The Appellant in his position was aware of this. The Appellant however in his statement admitted to having been in possession of an unapproved plan and the circumstances showed that he still proceeded to request for valuation. Fraud has clearly been established.

On the issue of penalty, Mr Moyo submitted that it is a trite position at law that the employer has a discretion on what penalty is imposed on an employee found guilty of misconduct. The Respondent has referred to the authority in Zimbabwe Platinum Mines (Pvt) Ltd v Ronald Godide SC 174-12. Mr Moyo further submitted that this court, sitting as an appellate court could not interfere with the penalty imposed unless it was established that there had been a gross misdirection or an error by the Disciplinary Committee. In this case, the Appellant having been found guilty of a serious misconduct that went to the root of the contract of employment, the Disciplinary Committee properly imposed a dismissal penalty.

Ms Vhera, in reply, submitted that there was no basis on which the Disciplinary Committee accepted the two sworn statements in evidence where the statements were reflective of diametrically opposed positions. The Disciplinary Committee ought to have relied only on the first statement of the 5th of June, 2022 in which the Appellant was clearly disputing any wrongdoing. The Appellant had at no point admitted to the charges levelled. On this point the Appellant’s prayer was that the appeal be upheld with costs on a higher scale.

EVALUATION

It is an established position at law that a party claiming the common law doctrines of duress or undue influence ought to provide sufficient proof that there was undue influence. This was established in the case of International Export Trading Co. Zimbabwe (Private) Limited v Mazambani HH 195/17 where the court held that;

“Duress and undue influence are common law doctrines. A litigant alleging the use of duress and undue influence to induce him to sign a document is essentially saying that he was forced to do the act complained against…..He must show that he had no other viable course of action. Also to be considered is whether he took steps to avoid the forced contract or AOD.”

Similarly the same was upheld in Mkwananzi v Sibanda and 7 Others (HB 125 of 2021) ZWBHC 125 and Bpoe Bank Berperk v Van ZYL 2002 (5) SA 165 C where they held that;

“a litigant wishing to rely on duress and undue influence as a ground for resisting enforcement of an AOD must do more than just allege that he was forced to sign the AOD. He must convince the court that the pressure applied upon him to coerce him to sign was so extreme or severe so

as to negative voluntariness and induced him to sign the document without his free will. The influence averted to must be shown to be unscrupulous and that it weakened his power to resist. Further, that he would ordinarily not agree to the signing.”

It is also of crucial importance to differentiate between duress and undue influence even though the two are closely related. The South African case of Isaacs v Potgier and Ors 5010/14 [2019] ZAGPJHC 92 the two were clearly differentiated, with Duress being defined as a threat or action that forces someone to do something against their will whereas undue influence is when one person uses their position of trust, authority or confidence to unfairly manipulate or persuade another person to do something. On appeal, the Appellant submitted that the Disciplinary Committee erred and misdirected itself in holding that there was no evidence of duress when the Appellant never pled duress but pled that he had been unduly influenced by his superiors to depose to the two statements which the Disciplinary Committee relied on to reach the conclusion on conviction. The Appellant, in this case submits, that, he was unduly influenced to sign the two statements. He submits that he had been asked to make such statements by his superior who claimed to have been targeting corrupt officials in the system. The Appellant emphasised that the people who asked him to make such statements were his superiors and as such he had a reasonable fear of being found wanting for insubordination or even lose his job. During the course of the hearing, he even referred to one such superior as being Mr Dzihonye. It is clear that the Disciplinary Committee, faced with the Appellant’s submissions that the statements had not been freely and voluntarily made by him, were required to investigate as to whether the Appellant had placed sufficient evidence to show that he was indeed pressured to write the statements and that he was indeed threatened by his superiors as alleged, and that he was forced to sign the statements due to the pressure and influence brought to bear upon him. It is also the position that undue influence must be established by the facts alleged. It must be shown to have been operative at the time the action complained of was taken. This much was stated in Rodgers versus Rodgers SC64/07 where the Supreme Court stated that;

“Undue influence is a compendious description of the facts which if alleged in the declaration and proved at the trial would constitute the wrong for the redress of which the action was commenced. Whether there has been undue influence or not is a question which

must be decided by reference to the facts and circumstances peculiar to the case. As it is a question of fact, undue influence may take many different forms.”

It is clear from a reading of the record of proceedings that the Disciplinary Committee addressed the issues of duress and not undue influence. In their findings they noted on page 121 as follows;

“Although the accused denied these allegations, in his statements in exhibit 6 and 7 he made various admissions. It must be noted that the accused acknowledged that he wrote exhibits 6 and 7 but he argued that the contents of exhibits 6 and 7 were not truthful because he wrote those statements after being enticed by his superiors to do so. The alleged enticement was a Hatfield stand which he said he wanted to register his wife as the beneficiary. In determining whether or not exhibit 6 and 7 were a true reflection of what transpired, the committee relied on the legal principle of caveat subscriptor, signer beware, which states that a person who puts his signature to a document knows the documents’ contents. In addition, the committee noted that there was no evidence of duress.”

The finding by the Disciplinary Committee, clearly shows that despite the issue of undue influence having been raised during the course of proceedings the Disciplinary Committee did not address the issue in their determination. They instead brought in another legal principle, being the caveat subscriptor principle. This they could not do as the issue had not been raised before them in the course of proceedings. They did however refer to duress and stated that it was not been established before them. It is common cause duress had not been pleaded before the disciplinary committee. In light of this, it is clear that the Disciplinary Committee did err and misdirected itself in basing its findings on Duress rather than Undue Influence. Even though the two may be similar it is accepted that the test in order for one to establish the existence of either is different as discussed above.

I am of the view that indeed the Disciplinary Committee erred and misdirected itself in applying the wrong test or principle so as to establish whether or not there had been undue influence. The Disciplinary Committee based its findings on whether or not the Appellant had proven that he had been under duress whereas the Appellant had not pled duress at any point in time but rather pled undue influence which is a distinct legal principle separate from that of

duress. The Disciplinary Committee therefore grossly erred and misdirected itself in holding that there was no evidence of duress when the Appellant never pled duress but pled that he had been unduly influenced by his superiors to depose to the two statements which the Disciplinary Committee relied on to reach it’s conviction. This renders the entire hearing and the outcome fatally defective. On this basis alone, the court finds that the appropriate course of procedure would have been to remit the matter back for a hearing de novo before the Disciplinary Authority. In view of the position taken in the case of Eastern Highlands Plantations v Mapeto & 136 Ors SC23/12 however this course is not available. The relief was also not sought before me. It remains open to the employer however to, upon reinstatement, take the option to convene fresh disciplinary proceedings.

In the result it be and is hereby ordered as follows:

The appeal succeeds with costs.

The decision of the Disciplinary Committee to dismiss Appellant be and is hereby set aside.

The Appellant be and is hereby reinstated with effect from date of unlawful termination and without loss of salary and benefits.

If reinstatement is no longer tenable the Respondent shall pay damages in lieu of reinstatement as agreed between the parties or based upon an assessment by this court on application by either party.