Brighton Manyati v Arcturus Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/635/16
HELD AT HARARE 14 MARCH 2016
CASE NO
JUDGMENT NO LC/H/635/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/635/16

HELD AT HARARE 14 MARCH 2016				CASE NO LC/H/551/14

& 21 OCTOBER 2016

In the matter between:

BRIGHTON MANYATI				Appellant

And

ACTURUS MINE				Respondent

Before The Honourable Manyangadze, J

Appellant			In person

For Respondent		T Tandi (Legal Practitioner)

MANYANGADZE J:

The appellant filed an appeal against the decision of the respondent’s mine manager, in his capacity as administering official who presided over his appeal.  (Appeal Officer).  The Appeal Officer upheld the Disciplinary Committee’s determination, which found the appellant guilty of misconduct and imposed a penalty of dismissal.

At the same time, the appellant filed an application for the review of the disciplinary proceedings that led to his dismissal.

A perusal of the grounds of appeal, grounds for review, and submissions filed of record by the appellant shows that in essence, this is an appeal and not a review matter.  As observed by Mr Tandi, for the respondent, during oral submissions;

“It is an appeal which has been couched as a review matter.”

There is very little, if anything, in the appellant’s submissions attacking the manner in which his disciplinary proceedings were conducted.  Much of his submissions dwell on how he was wrongly convicted.  They are in the main, if not wholly, an attack on the factual findings of the Disciplinary Committee, on the basis of which he was found guilty of the alleged misconduct of theft of company property.

I tried to glean, from his papers filed of record, the procedural irregularity on the basis of which he is seeking to have the disciplinary proceedings set aside.  Did the Disciplinary Committee lack jurisdiction?  Did it violate the audi alteram partem rule, or any of the other basic tenets of natural justice?  The averments on the appellant/applicant’s papers do not speak to any of these fundamental issues.  These are mainly the issues on the basis of which a review is sought.  Instead, what the appellant/applicant’s papers allege is that the appellant/applicant was wrongly convicted as an accomplice to a theft perpetrated by someone else, one Patrick Chisera.  The averments made are mainly to the effect that there was insufficient evidence to establish complicity in the theft.

The appellant/applicant did not seem to appreciate the difference between a review and an appeal.  This distinction was well explained on by Hebstein and van Winsen in their book, the Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 5th  ed, Juta.  The learned authors stated, at p 1271, that;

“The reasons for bringing proceedings under review or on appeal is usually the same, viz to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.46  The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked.  Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The giving of a judgment not justified by the evidence would be a matter of appeal and not of review, upon this test.47  The essential question in review proceedings is not the correctness of the decision under review, but its validity.48”

The only issue which seemed to touch on a procedural aspect was the averment that the Disciplinary Committee should not have dealt with the misconduct before conclusion of the criminal proceedings.  In fact, appellant/applicant seems to be of the view that the Disciplinary Committee had no mandate to deal with allegations of a criminal nature.  They are the preserve of the criminal courts.  This is reflected in ground 1 of appeal which reads:

“The Disciplinary Committee grossly erred by convicting appellant of theft, a criminal act, which is a prerogative of the courts of law”

The appellant/applicant emphasises this same point in the affidavit attached to his application for review.  As already indicated, there seemed to be no clear appreciation of what constitutes an appeal and a review, as this the averment was made under both actions.

In holding this view, the appellant was clearly mistaken.  As pointed out by the respondent, in paragraph 20 of its heads of argument, disciplinary proceedings are distinct from criminal proceedings.  The standard of proof in disciplinary proceedings is proof on a balance of probabilities.  See ZESA v Dera 1998 (10 ZLR 500 (S)

As already indicated, the rest of the submissions deal with the question of whether or not there was sufficient evidence to convict the appellant of misconduct.

As far as the review aspect of the matter is concerned, no procedural irregularity has been demonstrated, on the basis of which the disciplinary proceedings can be vitiated.  In the circumstances, the application for review cannot be upheld.

I must now deal with the appeal.

The appeal is challenging the factual findings of the Disciplinary Committee.  It is the question of whether or not there was sufficient evidence to establish the appellant’s complicity in the theft of the 8 rollers and roller frames.  The principal perpetrator of the theft was Patrick Chivesa, the plant operator.  That much is not in dispute.  He is the one who masterminded the pilferage.  The appellant assisted with loading, transportation, and offloading of the pilfered goods.  The question is whether the facts established support an inference that he connived with Chivesa in the perpetration of the theft.  In this regard, the Disciplinary Committee made a comprehensive summary of its findings.  These are detailed as follows:

“Brighton Manyati deliberately flouted the stand-by truck call out procedure by not communicating with main gate about the task he was given by Chiseva.

It was also disturbing to note that a seasoned driver  like him submitted that he was not aware of the procedure that all scrap should be escorted by security.

Housekeeping and scrap removal is only done during the day, what was so peculiar about this night?

It was very unusual for the plant operator to wait for the tractor at Chikomo turn-off where it is dark and dangerous, yet he had an option to raise the radio to the main gate and request for the tractor.

Brighton Manyati decided to help Chiseva to off-load the rollers by the road side at the salvage yard yet Chiseva had the attendants at his disposal.

Brighton was only playing ignorant about what was going on but it was clear from the sequence of events and Chiseva’s behaviour that he was up to some mischief.

Brighton submitted that he only assisted Chiseva to off-load the items because he was in a hurry.  This was contrary to his earlier submission that he acceded to Chiseva’s request because he had no call-out from main gate at that time.  Where then was he rushing to?

The visit to the scene revealed that Brighton and Chiseva deliberately dropped the rollers on the road-side instead of inside the salvage yard for convenience and easy collection by Chiseva.

Brighton’s excuse for not driving into the scrap yard to drop the items did not make sense because the yard is not fenced, and was therefore easy to drive in and out of the yard without having to reverse or manoeuvre with the tractor.

Brighton’s submissions had a lot of irregularities and dishonesty suggesting that he was only pretending ignorant about Chiseva’s intentions.  The two obviously connived to steal from the mine because there were too many coincidental events for both.”

These are the findings on the basis of which the Disciplinary Committee found the

appellant guilty of theft.  The findings are of a purely factual nature.  The Appeal Officer upheld these findings, and dismissed the appellant’s appeal against the decision of the Disciplinary Committee.

The law relating to the approach by an appellate court to the factual findings of trial tribunal is well captured in the respondent’s heads of argument.  The fundamental principle is that an appellate court will not interfere with the factual findings of a trial tribunal, unless such findings exhibit gross misdirection on the part of the trial tribunal.  Reference was made to the case of Nyahondo v Hokonya & Others 1997 (2) ZLR 475, where the Supreme Court stated:

“an appellant court will not interfere with the decision of a trial court based on purely findings of fact unless it is satisfied that having regard to the evidence placed before the court, the findings complained of are outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.”

The findings detailed by the Disciplinary Committee cannot, in my view, be said to be grossly unreasonable.  They cannot even be said to be unreasonable.  The facts and circumstances show that the assistance rendered by the appellant to Chivesa went beyond the call of duty.  The transportation was done by Chivesa and the appellant only, the other assistants having been left at the Mill.  The goods were offloaded by the roadside, and not in the salvage or scrap yard. All this was done under cover of darkness.  It is curious that scrap metal was being removed at night without informing security at the main gate. This was undoubtedly to facilitate quick disposal.  The Disciplinary Committee, and the appeal officer found that this role could not be played by an innocent participant.  They cannot be faulted for making such a finding.

The facts established, in casu, clearly militate against the appellant’s innocence.  The onus to demonstrate gross unreasonableness in the findings of the Disciplinary Committee has not been discharged by the appellant.  As correctly put by the respondent in its heads of argument;

“This is a heavy onus weighing on the appellant, which the appellant’s papers have failed to discharge.”

In the circumstances, the appeal against conviction cannot succeed.

Once the conviction is upheld, there is no way the penalty of dismissal can be interfered with.  In terms of the respondent’s Code, the prescribed penalty is dismissal.  Even if the Code had not prescribed dismissal and left it to the employer’s discretion to determine an appropriate penalty, dishonesty almost always attracts a penalty of dismissal.  It goes to the root of any employment contract.  See Standard Chartered Bank v Chapuka SC 125/04.

In the circumstances, the appeal fails.

It is accordingly ordered that;

The appeal and the application for review be and are hereby dismissed.

The appellant shall bear the respondent’s costs.

Kantor & Immerman, respondent’s legal practitioners