Chamunorwa Nyakurerwa v Zimbabwe Platinum Mines (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/15/2022
HARARE, 23 NOVEMBER, 2021
CASE NO. LC/H/22/2020
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IN THE LABOUR COURT OF ZIMBABWE 	        JUDGMENT NO. LC/H/15/2022

HARARE, 23 NOVEMBER, 2021  		         CASE NO. LC/H/22/2020

AND 28 JANUARY, 2022

In the matter between:

CHAMUNORWA NYAKURERWA		                                APPELLANT

Versus

ZIMBABWE PLATINUM MINES (PRIVATE)

LIMITED					                                          RESPONDENT

Before The Honourable Kachambwa J

For the Appellant			: 	C. Mavhondo (Legal Practitioner)

For the 1st Respondent	          :        Ms P. Pfunye  (Legal Practitioner)

KACHAMBWA J:

The Appeal

1.	This is an appeal against the decision of the appeals committee of the Zimbabwe Platinum Mines.   The appellant raised six grounds of appeal.  Four of them fell by the wayside on preliminary points.  A fifth was abandoned.  Only one ground was left for considerations.  This is the ground that said that

“The Appeals Committee grossly misdirected itself on the facts in finding that the Appellant properly admitted that he was guilt and that the disciplinary Committee properly accepted such plea.”

In other words the appellant was disputing/denying his plea of guilty.

The Charges and The Response

2.	The appellant was employed as an Engineering Manager by the Zimbabwe Platinum Mines.  He was charged of acts of misconduct in breach of two clauses of the mines’ code of conduct viz

3.2 – 4 – unsatisfactory work performance

3.6 – safety and health

A list of incidents, detailed incidents, was availed to support the charges.  Previous correspondence on the deficiencies was also attached.

3.	The appellant responded to the charges by way of an email.  His response was that –

“The charges are accepted.  Inserted in red against each charge are notes for consideration as mitigation.”

The Disciplinary Hearing

4.	At the disciplinary hearing the appellant repeated his plea of guilty and that his notes to it were his mitigation.  The panel accepted, his plea.  The panel also asked the appellant to explain each point of mitigation.  At the end the panel exonerated him on some of the charges.  A penalty of dismissal was meted out.  An appeal to the Appeals Committee was dismissed.

The Argument On The Plea of Guilty

5. 	The appellant’s argument is that the plea of guilty was not an informed one.  The appellant was not legally represented and the procedure had not been explained to him. The plea was made in ignorance.  The hearing committee should have explained the procedure.  In the circumstances the appellant was entitled to withdraw his plea of guilty.  The said address in mitigation shows defences to the charges such that the hearing committee was supposed to probe them and to enter a plea of not guilty.

6.	The respondent’s argument was that the appellant chose not to be represented.  The contents of his response and his response at the hearing show that he  understood the charges and he pleaded voluntarily.  The procedure on a plea of guilty in criminal trials must be applied cautiously in labour matters.  The strict regulations applied in criminal cases should not be transported to labour cases where parties are not trained as are magistrates in criminal cases.  Labour cases should be left to be informal and simple.  The respondent also raised the point that the appellant is not an ordinary low level employee.  He is in the managerial level and is involved in disciplining other employees.  It cannot be said that that he did not understand the meaning of pleading guilty.

7.	The respondent also raised the point that there is a difference between a person applying to change his/her plea of guilty and what the appellant is doing.  The appellant is challenging the acceptance of his plea.

Analysis

8.	It is true that in criminal cases there is a procedure followed in pleas of guilty.  This is meant to make sure that an accused person is genuinely and knowingly pleading guilty.  Where such person decides to change his/her plea of guilty the court looks at various issues to determine whether the change is acceptable.  Some of these are –

1.  the level of education of the applicant.

2.  the environment in which the plea was made; and

3.  the experience of the applicant in the procedure.

9.	The appellant faced serious charges.  He is not a low level employee.  Infact he is in the managerial grade.  He has experience in disciplining other employees.  To that extent he knows the procedure.  He knows the difference between pleading guilty and mitigation.  His problems were not sudden.  He had been written to in July before he was charged in November.  He had been discussed with.  He was not pressured to give a response immediately.  He knew what he was doing when responding in the email and at the hearing.

10.	It also appears that the disciplining committee was alive to the fact that although the appellant pleaded guilty some of his mitigation in fact amounted to a defence.  That is why some charges were dismissed.  But can it then be said that the disciplinary committee should have entered a plea of not guilty to all the charges and thereafter called evidence?  Why call evidence on that which has been admitted?  It needs to be noted that the appellant has not explicitly explained his plea of guilty and what follows as mitigation.  He did not say that he wants to change his plea.  Rather he seeks to blame others for not looking closely into his response to the charge and seeing that in fact he did not mean what he said.  He also seeks to teach them about the procedure in Criminal Law on a plea of guilty and to follow the same.  That is not serious, more so considering the appellant’s position and experience.  It is not acceptable.  Here was a manager under scrutiny among his colleagues.  Why should he expect to be considered totally unknowledgeable in the things they have been doing together to other employees?  Pleading and mitigation should be taken as that for such level otherwise it becomes child’s play.  The plea was clear and in terms of the rules of interpretation there is no need to look for another meaning to it as such.  It was up to the appellant to explain himself if he was misunderstood at the time.

11.	It is true that cases like S V Matare 1993 (21 ZLR 88 establish the right of an accused person to change his plea of guilty.  It is equally true that in civil matters that which is admitted need not be proved.

In between there is need to differentiate between one who pleads guilty and then gives an explanation which tatamounts to a denial and the other who pleads guilty and gives his mitigation.  Further there is need to understand the level of interlect or education and experience of each party.  In the present case it does not seem that the appellant did not understand his plea.  There are no grounds for upsetting the verdict of guilty.

Disposition

In view of the above analysis the appeal fails.  It is accordingly ordered as follows –

1. 	the appeal be and is hereby dismissed

2.	the appellant pays the costs.