Collen Taruva v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/111/2025
HARARE, 6 MARCH 2025 AND
14 MARCH 2025
CASE NO LC/H/680/24
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENTNO LC/H/111/2025

HARARE, 6 MARCH 2025	AND

14 MARCH 2025 	                              	                       CASE NO LC/H/680/24

COLLEN TARUVA						APPLICANT

ZIMBABWE REVENUE AUTHORITY			RESPONDENT

Before the Honourable G. Musariri, Judge:

For  Applicant			R P V  Sibanda, Attorney

For  Respondent		H. Muromba, Attorney

MUSARIRI, J:

On 27 June 2024 applicant applied to this Court for rescission of judgement and condonation of late filing of Notice of Response.  The application was made in terms of Rule 40 of the Labour Court Rules, 2017. Respondent opposed the application.

Applicant’s founding Affidavit stated that,

“9. The default file the Notice of Response was not wilful as I was of the belief that the Notice

of Response had been filed in time.  The Notice of Response was actually filed by the 26th of April 2024.  However the Notice of Response had to be re-uploaded due to technical challenges and it was eventually filed some 5 days later on the 6th of May 2024 which filing was actually approved by the Registrar only to be raised by the Respondent as out of time. At all material times I was of the view that since the initial Notice of Response had been uploaded and there was a digital footprint, I was within time.

11, The reason for the filing of the Notice of Response on 6th May 2024 instead of the 26th April 2024 was that my representative, Mr Mugwanju tasked with uploading the document faced technical challenges and thought the document had uploaded.  Furthermore, at the time my representatives faced challenges in uploading the document on the IECMS system which led to further delay.  Kindly find Annexture A3 being the Supporting Affidavit being for Mr Muzhanye confirming the initial upload and revisiting the same.

14. In addition, on the merits, I contend that the determination found me not guilty in that

(a) The Respondent failed to prove and establish the misconduct as alleged, therefore the Designated Agent acquitted me and

(b) Furthermore, the Respondent was found to have failed to prove bribery or any ac t of misconduct.

25. The misconduct of giving or receiving or attempting to give or receive any bribe or  performing or attempting to induce any person any corrupt act.  Therefore the conduct of not escorting the alleged truck to Nyamapanda and not seizing smuggled bales, reporting and failure to arrested (sic) the purported smugglers does not constitute the misconduct of taking bribes, extortion or embezzlement. The misconduct as per the Respondent’s charge sheet was not proven before the Designated Agent and therefore should not be used as a basis for my dismissal.”

Applicant then prayed for rescission of the default judgement issued against him.

Respondent  countered through its opposing affidavit the pertinent parts of which read,

“12.3 Once the Applicant’s representatives realized that the Notice of Response had not been

issued by this Court and that they were having technical challenges, they ought to have approached the Labour Court for assistance.

12.4 The Labour Court has a robust  IECMS Information Centre that allows litigants who are facing challenges uploading documents to quickly get assistance and upload their documents,

12.6 There is no valid reason why the Applicant had to wait until the 6th of May 2024 to ensure that its Notice of Response had been uploaded and issued.

16,2 When the Applicant came across the truck with the smuggled bales of clothing, the expectation was the he is supposed to seize both the truck and the goods being smuggled.  The truck was being used as an accessory to the offence and ought to have been seized.

16.5 Furthermore, there is a causal link between the charges against the Applicant and the offence. The reason the Applicant intercepted the truck during the patrol but did not;

I.   escort the truck to Nyamapanda Border Post, did not cause the seizure of the smuggled bales

II.  report that he came across a truck ferrying smuggled bales during patrol, and

III. cause the arrest of the smugglers is because he was colluding with the smugglers and had been paid.”

Respondent prayed that the application for rescission be dismissed.

ANALYSIS

Applicant was represented by trade union officials.  According his affidavit they were supposed to file his Notice of Response by the 26th April 2024.  They failed to do so as they experienced ‘technical challenges’ in uploading the Response to the Court’s IECMS platform. Apparently the challenges persisted until the 6th May 2024 when they uploaded the Response but out of time. Respondent rightfully countered that the Applicant’s representatives should have approached Court’s IECMS Information Centre to upload the Response using the Court’s facilities availed free of charge to all litigants.  No explanation was given for the failure to seek the Court’s assistance. That makes the explanation for applicant’s default unsatisfactory.  The facts are largely common cause. Applicant was part of a joint border patrol between Zimra, ZRP and ZDF.  They encountered a truck with smuggled bales of clothing.  Person/s within the patrol sought and got a bribe to allow the truckers and their bootleg to go free. Applicant as part of the Zimra component of the patrol was expected to seize the bootleg and escort the truck

to the Border Post for processing and/or prosecution.  He failed to do so or even report the encounter. Further in his application he has not explained his glaring oversight.  This is a scenario where the facts speak for themselves as argued by respondent. The most likely probability is that applicant acted in collusion with the bribe-takers.  The Court is fortified in this view by the case of

Ebrahim  v Pittman

1995(1) ZLR 176(H)

Per Bartlett J at P 185F

“I should also point out that in another case referred to by Mr Gillespie, … it was again

emphasised that it is not necessary for a plaintiff invoking circumstantial evidence in

a civil case to prove  the inference which he asked the court to make as the only reasonable inference.  He will discharge the onus which rests on him when he has convinced the court that inference he advocates  is the most readily apparent and acceptable inference from a number of possible inferences”  Underlined for emphasis.

This Court is satisfied that in casu the circumstantial evidence pointed to applicant’s guilt. Therefore respondent’s decision to dismiss applicant from employment cannot be faulted.

CONCLUSION

In light of the Court’s analysis above, there is no valid basis for the rescission of the court’s judgement which set aside the erroneous determination by the Designated Agent. Perforce the present application ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The application or rescission and condonation be and is hereby dismissed, and

Each party shall bear its own costs.

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G MUSARIRI

J-U-D-G-E