City of Harare v Gray Hama

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/150/14
HELD AT HARARE 11TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/150/14

HELD AT HARARE 11TH MARCH 2014			 CASE NO LC/H/70/14

& 28TH MARCH 2014

In the matter between:-

CITY OF HARARE					Applicant

And

GRAY HAMA					Respondent

Before The Honourable L.M. Murasi, Judge

For Applicant		Mr B Chikowero (Legal Practitioner)

For Respondent		Mr W Mazhetese (Legal Practitioner)

MURASI, J:

At the beginning of the hearing, Mr Chikowero applied for a postponement citing the fact that he had received the documents from the Applicant on 5 March 2014 when in fact these had been served on Applicant on 7 February 2014.  It was common case that 1st Respondent had erroneously served the Notice of Response on the Applicant instead of the Applicant’s legal practitioners.  1st Respondent’s Counsel opposed the application and stated that even if this was the case, Applicant had been served with the Notice of Set Down on 4 March 2014 and should have been in a position to file the Heads of Argument.  The Court inquired of Mr Chikowero whether he was the one who had filed the notice of appeal, and he confirmed this.  He also stated that he was familiar with the record of proceedings and could present oral argument.  The matter then proceeded on that basis.

1st Respondent was employed by Applicant as a Senior Accountant.  He was charged under the Collective Bargaining Agreement: Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 171 of 2010.  He is alleged to have connived with one Mugogoshi to post some 67 journal transactions misrepresenting that Applicant’s clients had made payments in Applicant’s Kingdom Bank Account.  The alleged potential prejudice to Applicant was said to be US$325 114.00.  1st Respondent was brought before a Disciplinary Committee which found him guilty and recommended his dismissal.  The matter was subsequently referred to an arbitrator who found in favour of 1st Respondent.  Applicant has since appealed against that decision and pending that decision, Applicant has approached this Court for interim relief in terms of Section 92 E (3) of the Labour Act [Chapter28:01].

In its application, Applicant submitted that there are prospects of success given the finding by the arbitrator that Applicant had failed to prove its case on a balance of probabilities.  It was stated on behalf of Applicant that it was common cause that 67 journal entries had been made and the customers had been credited as a result of the misrepresentation made by 1st Respondent.  Appellant further stated that for the arbitrator to find that there was no such proof was a gross misdirection on his part and that there were reasonable prospects of success.

On the balance of convenience, Applicant submitted that were the application to be dismissed by the Court and appeal was to eventually succeed, Applicant would have been compelled either to reinstate the 1st Respondent or pay him damages in lieu of such reinstatement.  Applicant would suffer irreparable harm if the appeal succeeded as it would amount to an academic exercise.  Applicant further submitted that in the event that the application were to succeed and the appeal failed, there would be no irreparable harm or prejudice to 1st Respondent as he would be reinstated without loss of salary and benefits or paid damages in lieuof reinstatement.  Applicant therefore stated that the balance of convenience favoured the Applicant.

1st Respondent largely abided by the Heads of Argument filed of record.  1st Respondent submitted that there were no prospects of success as Applicant’s appeal was on factual grounds which were not points of law as required in terms of section 98 (10) of the Act.  Further, 1st Respondent stated that Applicant had failed to prove on a balance of probabilities that he had committed the offence in question and that the finding by the arbitrator was sound.  1st Respondent stated that the grant of stay of execution is discretionary and is granted only where real and substantial justice requires such a stay or where injustice would otherwise result.

The guiding principles in the determination of such an application were stated in South Cape Corporation (Pty) Ltd v Engineering Management Service (Pty) Ltd  1977 (3) SA 534 (AD).  Counsel for both parties referred to them which include prospects of success on appeal, potentiality of irreparable harm or prejudice and the balance of convenience.

On the issue of prospects of success, the Applicant avers that the arbitrator found that Applicant had not proved its case against 1st Respondent.  The determination is whether this is a factual finding or a point of law.  It can only become a point of law where there is a gross misdirection on the facts.  Firstly, ordinarily finding that a matter has not been proved is a factual finding.  Secondly, proceeding on the findings of the arbitrator it must be a gross misdirection.  The arbitrator reasons as follows:

“In essence, the Respondent (Applicant) should have proved four elements of the charge in order to discharge the burden of proof on a preponderance  of probabilities.  Misrepresentation and prejudice needed proof together with the intention to deceive as well as the intention to cause prejudice.  The critical issue is whether the evidence led by the Respondent suffices for that level of proof…  Having said that, there is need to inquire whether the Claimants misrepresented to the Respondent as regards the status of consumers’ accounts.  The Respondent’s evidence did not bring out clearly the nature of the misrepresentation, if any.  Instead, Respondent expected Claimant to prove that US$325 114.00 was deposited by ratepayers into Kingdom Bank e-transact.  The law is very clear on the aspect of proof.  He who alleges should prove.”

The above-cited quotation clearly shows that the arbitrator thoroughly analysed the evidence adduced before him.  He was not satisfied that Applicant had proved the fraud allegedly committed by 1st Respondent.  Applicant’s Counsel made reference to the fact that volumes of documents were produced at the hearing.  Alas, volumes of documents may have been produced but were not relevant to the matter.  A perusal of the record shows that the key witness, Mr Chiri, was non-committal about certain pertinent issues in his responses during the Disciplinary Hearing.  He clearly did not cut an impressive figure as the person who was supposed to show clearly that fraud had been perpetrated by the 1st Respondent. In my view, the finding by the arbitrator cannot be faulted in the circumstances as it does not amount to a gross misdirection.  GARWE JA lamented the issue of the words “question of law” improperly in Sable Chemical Industries Ltd v David Peter Easterbrook SC 18/10 at p 11 of the cyclostyled judgment:

“The words ‘on a question of law’ have been added simply to give the impression that what is being raised is a question of law and yet the real issue raised in that ground of appeal is whether or not the committee was properly constituted, clearly an issue of fact.”

On the issue of balance of convenience, the Court is of the view, that Applicant has not satisfactorily explained its position.  The arbitral award in its present form is not executable and Applicant has not stated that its case cannot wait.  It is trite that one suffers irreparable harm, where there are no other practical remedies available.  This has not been proved by the Applicant.  The general rule is that a party who has obtained an order against another is entitled to execute upon it unless special reasonS against such execution are present.  However, in the present case the award is still to be quantified and is not executable.  As stated by GUBBAY J (as he then was) in Santam Insurance Company v Paget 1981 ZLR 132 (G) at p 134:

“The onus rests on the party claiming this type of relief to satisfy the court that injustice would otherwise be caused him, or to express the proposition in a different form, of the potentiality of his suffering irreparable harm or prejudice.”

The Court is of the considered view that the Applicant has failed to show that it has an arguable case and therefore good prospects on appeal.  Further Applicant has also failed to satisfy the Court that it will suffer irreparable harm.

In the result, the Court finds that the application is without merit and is accordingly dismissed.

Costs shall be in the cause.

Gutu & Chikowero, Applicant’s legal practitioners

J. Mambara & Partners, Respondent’s legal practitioners