Edgar Mpozori v Zimbabwe Electricity Transmission & Distribution Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/26/2021
HARARE, 8 OCTOBER 2020 &
CASE NO LC/H/71/20
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO LC/H/26/2021

HARARE, 8 OCTOBER 2020 &				CASE NO LC/H/71/20

26 MARCH  2021

In the matter between:-

EDGAR MPOZORI						APPELLANT

And

ZIMBABWE ELECTRICITY TRANSMISSION		RESPONDENT

& DISTRIBUTION COMPANY (PVT) LTD

Before the Honourable Manyangadze  J

For the Appellant		Mr B. Magogo     (Legal Practitioner)

Mr V. Mukumba (Legal Practitioner)

For the Respondent		Mr A.K. Maguchu (Legal Practitioner)

MANYANGADZE  J:

This is an appeal against the determination of the respondent’s Appeals Committee issued on 11 April 2019, which upheld the appellant’s dismissal from employment.

The facts constituting the background to this matter are as follows.

The appellant was employed by the respondent as Sales Executive, and was at the material time based at the Hwange District Office.

Zimbabwe National Parks (Zim Parks) was one of the respondent’s major customers in the Hwange District. During the period extending from 2009 to 2013, Zim Parks made payments at the Hwange District Office in settlement of its electricity bills.  It is alleged that the appellant, on numerous occasions asked ZimParks to settle their bills in cash. Zim Parks staff took the cash to the District Office, where it was allegedly receipted by the appellant himself instead of the District Office’s cashiers.  It is further alleged that the money so receipted was not banked.

Following an anonymous tip off, the respondent caused an audit to be carried out at the Hwange District Office. The audit,  carried out by a ZESA Holdings Internal Audit team, revealed that  a total amount of US$181 800,00 was not banked into the respondent’s account. According to the Internal Audit Report dated 28 October 2017, a total of US$261 500,00 was received from Zim Parks during the period 7 August 2009 to 26 August 2013. Out of this total amount, US$181 800,00 could not be accounted for.

As a consequence of the audit investigations and report, the appellant was charged with misconduct, in terms of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006.(the National Code).  The specific charges, which appear in a charge letter dated 11 June 2018, were framed as follows:

CHARGE  1

“Contravening Section 4(a) that is to say: - any act of misconduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.

Between August 2008 and August 2013 you assumed the role and responsibilities of the Cashier wherein you used a receipt book and receipted payment totalling $181 800,00 from ZETDC Clients at National Parks in Hwange and Binga.  After receipting the payment the money was not banked with any of the official ZETDC Bankers.  This conduct violated the conditions of your contract as the ultimate custodian and overseer of the commercial activities, procedures.   policies and practice at the receipting centre where all receipted monies should be banked with official ZETDC Bankers.

CHARGE 2

Contravening Section 4 (d) theft or fraud

In that:

After your receipting of the payments, the money was not banked with any of the ZETDC official Bankers. The fact that the money was receipted but not banked points to theft of the money that should have been banked with ZETDC Bankers.”

In a determination issued on 17 July 2018, a Disciplinary Authority convened by the respondent in terms of the National Code found the appellant guilty as charged and imposed a penalty of dismissal.

On 11 April 2019, an Appeals Committee dismissed the appellant’s internal appeal in its entirety.

The record shows that on 18 November 2019, the Appeals Committee dismissed the appellant’s application for leave to adduce further evidence.

The record also shows that prior to the lodgement of his appeal with this court, the Appellant had filed an appeal before a labour officer, apparently under the provisions of s 8 of the National Code. The parties then agreed that the labour officer had no jurisdiction to entertain such an appeal and redirected the appeal to this court.

The notice of appeal filed on 26 August 2020, shows that appellant is appealing against the determinations of the Appeals Committee, dated 16 April 2019 and 18 November 2019. The determination of 16 April 2019 dismissed his appeal against the determination of the disciplinary authority on the merits thereof.  The determination of 18 November dealt with the appellant’s application for leave to adduce further evidence, which application was dismissed.

The appellant’s grounds of appeal are stated as follows:

“1.	The Appeals Authority erred in confirming Appellant’s guilty for “failing to undertake or supervise those duties as the Sales Executive in Hwange District” when in fact no such charge was ever laid against him.

A fortiori, the Authority erred in endorsing a decision arrived at without affording the Appellant the right to be heard on this new offence.

The Authority a quo erred and seriously misdirected itself by finding that Appellant had assumed the duty to receipt money even against the evidence that it was never his duty to do so and in the absence of any evidence that there were any special circumstances.

The authority erred in disregarding the need for signature identification expert evidence on the premise that it would heighten the burden of proof to beyond reasonable doubt thus effectively ruling out the need for signature expert evidence in a civil matter.

The Authority a quo erred and grossly misdirected itself in making the following factual findings; -

4.1	That the three different signatures appearing on the manual receipts belonged to Appellant in the absence of expert evidence and comparative specimen signatures;

4.2	That Appellant was guilty of having generated machine printed receipts even though the charge did not refer to same yet the figure of US$181 800 included them;

4.3	That Appellant acknowledged the correctness of the receipts on Annexures B22, B28 and B29 when in fact no such acceptance was ever made in evidence;

4.4	That Appellant’s credentials were not stolen simply because he never reported any such theft when in fact he was not aware of the said theft until after charges arose;

4.5	That the case presenter presented evidence that the sum of US$181 000 was not banked when in fact no such evidence was presented for the said amount;

4.6	That only three entries were disputed even after the Auditor accepted that having resort to other banking statements, the figure would even rise further and the entire report would therefore be inaccurate;

4.7	That in spite of the failure of the audit team to interview a wider pool of witnesses at Hwange National Park and at ZETDC, its failure to investigate the other cashiers and to have regard customer statements, the audit report was accurate.

The Authority a quo erred in failing to find that the witnesses’ positive identification of Appellant did not translate into an identification of the Appellant’s signature and handwriting on the receipt.

The Authority  a quo erred, in absence of evidence, in finding that manually generated bills could be tampered with.

6.1	A fortiori, the Authority accepted that system generated bills are critical in computing prejudice yet no such bills were presented for the transactions in issue.

The Appeals Authority grossly erred in its exercise of discretion such that no reasonable authority acting carefully could have arrived at such a decision in dismissing Appellant’s application to lead further evidence on appeal on the premise that the evidence sought to be led was in Appellant’s possession without regard to the fact that the rest of such evidence (sic) in the Respondent’s system.

7.1	A fortiori the Authority so erred in strangely finding that the evidence sought to be led was not ‘further evidence’ when same is extant in the company system which is in the domain and control of the employer.

8.  The Disciplinary Authority erred in completely ignoring Appellant’s submissions in

mitigation before arriving at the ultimate penalty of dismissal.”

The respondent, in paragraph 4 of its heads of argument and in oral submissions made during the hearing of the appeal, expressed disquiet on the appellant’s numerous grounds of appeal.  A look at the grounds of appeal shows that they are indeed prolix. They consist of 8 main grounds, with numerous sub-grounds, covering two pages. A better crystallisation of the issues could have led to fewer grounds of appeal. Grounds of appeal which are prolix are undesirable.  See Dr. Nobert Kunonga v The Church of the Province of Central Africa SC 27/17.

The court notes however, that the respondent has not necessarily objected to the grounds of appeal. If it was its intention to object, I believe the respondent would have raised a point in limine specifically objecting to the presentation of the grounds of appeal in the form in which they are.  The respondent only highlighted the undesirability of having such numerous grounds of appeal, without calling for the dismissal or striking off of the appeal on that basis. The respondent only urged the court not to be deterred by the prolific grounds of appeal.  In this regard, Mr Maguchu, counsel for the respondent, stated during oral submissions:

“The multiplicity of the grounds of appeal should not deter the court from a simple determination of this matter.”

As the grounds of appeal have not been objected to as such, I shall proceed to deal with them seriatim.

Ground 1

Under this ground of appeal, the gravamen of the appellant’s averment is that he was convicted of a new charge, a charge that had not been originally preferred against him.

The appellant amplifies this contention in paragraphs 8 – 13 of his heads of argument. He points out that he was not charged with “failing to undertake or supervise those duties as the Sales Executive in Hwange District”.  He avers that the Disciplinary Authority grossly erred in finding him guilty of this offence.  The Appeals Committee in turn, erred in upholding this finding.  The appellant faced a specific charge which was that he had assumed the role and responsibilities of a cashier when he receipted money which he did not bank. This charge did not extend to supervision of cashier’s duties.

Mr Mukumbu, on behalf of the appellant, during oral submissions, went so far as to allege that the Disciplinary Committee “fabricated a new charge, which was not on the charge letter.”

In countering this averment, the respondent contended that there was no new charge at all. It submitted that as head of the commercial division at Hwange, the appellant was overally in charge of that division. He was therefore ultimately responsible for the activities carried out in the Commercial division, which included the receipting and banking of monies.  He thus failed ‘to play his overseer activity vis avis the banking of the money.”

This ground of appeal, in my view, basically involves an interpretation of the charge concerned.  There is no magic about this exercise.  The fundamental rules in the interpretation of statutes come into play. The charge, derived from section 4(a) of the National Code, must be given its ordinary grammatical meaning.  It simply reads:

“any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract.”

If these words are given their ordinary grammatical meaning, they are extensive enough to cover conduct or behaviour that is deemed to be inconsistent with the fulfilment of the express or implied conditions of a contract of employment.  One therefore looks at the conduct or behaviour complained of, and then determine whether it violates the conditions of the employment contract.  This should not be a herculean task.  In Chegutu Municipality v Manyora. 1996 (1) ZLR 262, at 264 D-E MCNALLY JA stated:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as Lord Wenselydale  said in Grey v Pearson (1857) 10ER 1216 at 1234, ‘unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified as to avoid that absurdity and inconsistency, but no further’.”

In casu, the manner in which the factual particulars of the charge are spelt out is instructive.  These factual particulars essentially consist of two parts.  The first part simply states what the appellant did or is alleged to have done.  He assumed the role and responsibilities of a cashier.  It is alleged he took it upon himself to do the receipting of monies from Zim Parks, which money was not subsequently banked.

The second part goes on to allege in what manner, or to what extent, the aforesaid conduct violated the conditions of his contract of employment.  It mentions that as “ultimate custodian and overseer” of all the commercial activities and procedures in the division, the conduct violated his conditions of service.  Herein lies the problem with the approach adopted by the appellant.  He has narrowly focused on the first part of the factual particulars, and overlooked the second part. It is not clear whether this was by design or inadvertence. It was wrong, in my view, for the appellant to excise from the factual averments, only the first portion.  If he had read these averments in their entirety, without disregarding or downplaying the second portion, they are broad enough to cover the charge preferred.  In other words, the charge is broad enough to cover all the factual averments.  Those averments properly entail the element of supervision of subordinate staff.  I do not see how this  element can be divorced from the rest of the charge.

In this regard, I find the reasoning by the Appeals Committee impeccable.  The Committee stated (page 17 of the record).

“To put this into perspective, the Disciplinary Committee was of the view that, instead of carrying out his duties of superintending the commercial business activities in Hwange District as expected in terms of his employment contract,  Appellant went on to assume the role of a cashier by receipting cash from customers and not banking or ensuring that the cash was banked. Accordingly, it is evident from the record of proceedings that no new charges were preferred against Appellant as alleged in the grounds of appeal.”

It further stated (page 18 of the record):

The Committee’s considered view is that the offence of “any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract” is sufficiently broad to encompass failure to undertake one’s work, or where the employee is in a managerial position, failure to supervise duties and responsibilities of subordinates.  The gist of the allegations against Appellant were that he reneged on his core responsibilities as Sales Executive of, inter alia, exercising oversight on commercial activities including receipting and banking activities of the district and instead assumed the role of a cashier in circumstances where some of the monies received from clients were not banked.” (underling added)

In the circumstances, this court finds no fault with the reasoning of the Appeals Committee. It is clearly incorrect to say that the Disciplinary Authority based its conviction on a new charge. No new charge was created.

The second aspect to the first ground of appeal is that the appellant was not heard on the “new charge”. This aspect need not detain the court.  Having held that there was no new charge, the collorary to that is that no new hearing was warranted.  The Disciplinary Authority based its verdict on what it heard from both parties, in relation to the charge as it is framed in the charge letter.  The averment that the applicant was denied his right to be heard is therefore devoid of merit.

In the circumstances, the first ground of appeal cannot be upheld.

Ground 2

This ground of appeal is not succinctly expressed.

`In one sense, it is putting in issue the question of whether or not the appellant had the duty to receipt money.

In another sense, it is raising the issue of whether or not the appellant in fact receipted money.

The issues could have been set out more clearly ex facie the ground of appeal, without the court having to figure out what the real averments are.

In the first sense, it seems, the specific averment is that there was no evidence showing that the appellant had a duty to receipt money.  Further to that, there was no evidence showing that there were exceptional circumstances warranting the appellant to assume such a duty. This is what is coming out in the heads of argument and the oral submissions.

A reading of the record shows that it is not in dispute that it was not the duty of the appellant to receipt money.  He held a managerial position in respect of which he was expected to supervise those whose duty it was to receipt money.  It was not for him to do the receipting,  unless exceptional circumstances compelled him to do so.  This position was made clear in the presentation of the respondent’s case by Engineer Chinaka, the complainant, designated in the minutes of the disciplinary hearing as the Case Presenter.  He stated, under cross examination by appellant’s legal practitioner, as follows:

“Accused’s Legal Rep:	You also indicate that Mr. Mpozori assumed the role and responsibilities of a Cashier.  Are you saying that he was not supposed to have performed those duties?

Case Presenter:	Coming from the point of view that we have Cashiers in the next office employed to do that very job and the manager then takes up that role making himself a Cashier, that’s where the problem is.

Accused’s Legal Rep:	I want you to be clear whether you are saying that’s something that must not happen at all.

Case Presenter	I can’t say that he is explicitly precluded from doing that, it can be done on very rare occasions.”

This is a position the defence was also asserting, that the appellant had no duty to receipt monies from clients, and could only do so in exceptional and compelling circumstances. This makes the issue common cause.  It is therefore not clear why this particular issue is being raised in the second ground of appeal. The averment that there was no evidence that it was not the appellant’s duty to receipt money becomes superfluous, when it is common cause he had no such duty.  There was thus no misdirection on the part of the Appeals Committee in upholding that finding.

As pointed out already, the other aspect of this ground of appeal is whether or not the appellant infact receipted monies from clients.  This, it seems to me, is the gist of this ground of appeal.  As I have pointed out, the problem is that the ground was not well articulated to clearly bring out this issue.  The issue only becomes clearer after one goes through the heads of argument and the oral submissions made by counsel on behalf of the appellant.  What emerges from these submissions is the contention that there is no evidence that the appellant receipted money from Zim Parks.  The Disciplinary Authority erred in finding that the appellant did such receipting.  The Appeals Committee erred in upholding that finding.  I am, in fact, putting the point across in better and clearer terms.  That is not how the point is expressed in the ground of appeal. I am gleaning the point from a reading of the ground of appeal coupled with the heads of argument and oral submissions.

Be that as it may, the pertinent question remains –is there sufficient evidence on record that the appellant receipted monies from Zim Parks?

The respondent contends that there is sufficient evidence supporting the finding that the appellant receipted monies. The respondent points to two key witnesses in this regard, Ms Maingire and Mr Gudza, employees of Zim Parks who brought cash to the appellant.

Ms Maingire was employed by Zim Parks as an accounts clerk, and was at the time stationed at Hwange National Parks.  She has a written statement filed of record, and also gave

viva voce evidence before the Disciplinary Authority. The essence of her testimony is that she would, on several occasions, go to the respondent’s Hwange District offices to make payment for electricity bills.  She carried out that task on the instruction of her accountants, one of whom was Mr Gudza. She would withdraw cash from the Zim Parks ZB bank account, and proceed to Hwange District Office, where she met the appellant.  It is to the appellant that she handed in her cash, for payment of electricity bills. The appellant would issue her with a receipt, on each occasion, as proof of payment. Paragraphs 5 and 6 of her written statement, which appears on page 165 of the record is clear on this;

“Upon our arrival at ZETDC I would meet Edgar Mupozori whom I would submit the funds

for payment. He would then issue us a receipt as proof of payment.

I would make payment for Zesa bills on several occasions of which this was in line with my job as an accounts clerk. On all the payments I was issued with receipts as proof of payment there and there before I could leave his office.

On all the payments made we could be given manual receipt and at a later stage we would be given machine printed receipts with similar figures with manual receipts.”

The witness maintained this in her oral testimony. On page 23 of the minutes of the disciplinary hearing (p. 64 of the record), the following is recorded;

“Case Presenter:	When you made payments, you would then get receipts?

1st witness		Yes

Case Presenter		Who did the receipting?

1st  Witness		Mr Mpozori

Case Presenter		In your presence

1st Witness		Yes”

As indicated, the other witness was Mr Gudza, who was employed by Zim Parks as an accountant. Like the preceding witness, he submitted a written statement and also gave oral evidence before the Disciplinary Committee.

Mr Gudza explained that Zim Parks maintained a main account, as it was classified as a Maximum Demand client, which paid substantial amounts.  Its account sometimes fell in arrears. When this happened, its officials would receive a call from the appellant, asking them to pay up or have their electricity disconnected.

The witness stated that on occasions he would take cash to the appellant’s office for payment.  The appellant would take the cash, go out of his office and come back with a receipt This is what he told the Disciplinary Authority:

“Case Presenter:	Can you take us further to when you would take cash to Zesa, who were you giving it to?

2nd Witness:	When we got cash it was usually in large amounts of up to US$10 000,00 and we would go straight to Mpozori’s office.

Case Presenter:	Who would issue the receipt?

2nd Witness:	I’m sure the process of issuing receipts is an internal process. I never saw him write but he would go out and bring a receipt.

Case Presenter:	So he would take the money then bring the receipt?

2nd  Witness	I can’t recall if he took the money with him but he would bring a receipt.”

The respondent averred that such testimony is direct evidence supporting the finding that the appellant receipted monies.

Commenting on this evidence, the appellant averred that Ms Maingire and Mr Gudza did not pinpoint him as the one who issued the receipts.  Mr Gudza, in particular, stated that he never witnessed the appellant issuing receipts. Ms Maingire could not “hand  pick any receipt purportedly issued by the Appellant.” The appellant contended that in light of this, the Disciplinary Authority’s finding to the effect that the appellant receipted money was contrary to the evidence led.  A finding of fact which is contrary to the evidence led is a misdirection in law, contended the appellant.  In this regard, he referred the court to the case of RBZ v Granger & Another  SC  34/01.

Ms Maingire, in particular, was emphatic, even under cross-examination, that she handed in cash to the appellant. She insisted that was so notwithstanding her failure to pinpoint a specific receipt, due to the passage of time.  The following exchange between the witness and the appellant’s legal practitioner is recorded on page 26 of the minutes of the disciplinary hearing (p. 67 of the record):

“Accused’s Legal Rep:	On what basis when you say you can’t even identify his signature.

1st Witness:	Because he would write in front of me and ndivo vaindipa ma receipts acho

Accused’s Legal Rep:	Do you have a particular set of receipts on dates that particularly show they were written in your presence?

1st Witness	I can’t recall because of time.”

Accused’s Legal Rep:	So you can’t tell that the one before us was issued by him?

1st Witness:	Maybe if we get bank statements and the dates I can tell.

Accused’s Legal Rep:	So you would need to have sight of your internal payment vouchers and dates for you to be able to tell us that a particular receipt was issued by Mpozori in your presence” Without that you can’t stand here and say that Mpozori is not being truthful.

1str Witness:	But zvaiitika ka.”

The cross-examiner tried to get the witness to commit herself to the question of whether or not the appellant stole from his employer. Her response was, inter alia, “ I cant really say that  because I was given receipts”

Whilst she was emphatic that the appellant receipted monies she handed in, she could not say he stole the monies.  She confined herself to what transpired between her and the appellant- which is the handing over of cash and the receipting thereof.  She was not privy to what happened thereafter.

In my view, the overall effect  of the testimonies of Ms Maingire and Mr Gudza is that they handed over cash to the appellant, in settlement of Zim Park’s electricity bills  This they did on divers occasions, whose specific number they could not recall.  It must be borne in mind this happened long before the matter was brought to a hearing, during the period 2009 – 2011, when the witnesses were still stationed at Hwange National Parks.  Their statements were recorded  by the police in 2017,   6 years later.  The disciplinary hearing took place in 2018, 7 years later.  It seems to me asking too much of the witness to pinpoint a particular day, time and receipt.

In this regard, I am in agreement with the sentiments expressed by Mr Maguchu, on behalf of the respondent, during oral submissions, when he stated;

“Did the appellant assume the duty to receipt money? Yes he did. Maingire said he did so. Maingire was brought to the hearing  6 years after the receipting. Her testimony is being challenged on the basis – why can’t you identify the signature?  She probably went there once a month.  She would have no reason to familiarise herself with appellant’s signature……She can’t recall the signature of 6 years ago….”

An important aspect of the evidence examined above is that the Disciplinary Authority made findings of fact.  The Appeals Committee, in turn upheld those findings of fact.  The law is well established that findings of fact made by a tribunal of first instance can only be interfered with by an appellate tribunal if there has been a gross misdirection. See ZINWA v Mwoyounotsva SC 28/15,  Hama v National Railways of Zimbabwe 1996(1) ZLR 664(S). In paragraph 17 of its heads of argument, the respondent highlights this fundamental legal position in the following terms:

“Findings of fact, such as the ones above, may only be interfered with where there has been misdirection.  See  Zvokuseka  v Bikita Rural District Council  SC  44/15.The findings in casu are based on evidence. The evidence does not fall in the category of utterly unbelievable evidence equated to a witness who says they saw water flowing upstream.  See Matambo v Mutsago 1996 (1) ZLR 101(S). What was necessary for a conviction was for a witness, Ms Maingire to testify that she saw the Appellant issuing receipts.  The fact that Ms Maingire did not identify the exact receipts years later and from  hundreds others does not detract from the fact that she saw Appellant issuing receipts.”

In upholding the findings of the Disciplinary Authority, the Appeals Committee focused on the evidence of Ms Maingire and Mr Gudza. It  found that this evidence establishes that the appellant  received cash, a function that was supposed to be carried out by the cashier.  It further pointed out that it found no reason why these witnesses would want to falsely implicate the appellant.

The Appeals Committee found no misdirection on the part of the Disciplinary Authority, on the crucial aspect of whether or not appellant received cash from the respondent’s client.  The Committee made the following conclusion, after an analysis of the evidence on record, as it was presented to the Disciplinary Authority:

“In arriving at this conclusion the Committee is guided by the well-settled principle of law that, in disciplinary proceedings the standard of proof is always proof on a balance of probabilities. See ZESA v Dera  1998 (1) ZLR 500(S); Nyarumbu  v Sandvik Mining and Construction Zimbabwe (Private) Limited  SC-31-13. The Committee is persuaded to reach the inescapable conclusion that sufficient evidence was presented before the Disciplinary Authority to prove, on a balance of probabilities, that the Appellant committed the alleged offence.  The Committee finds no serious misdirection on the part of the Disciplinary Authority a quo.  Accordingly, the second ground of appeal is bereft of merit.”

Having regard to the evidence looked at, the conclusion arrived at by the Appeals Committee cannot be faulted. There was no basis on which it could upset the findings on the credibil`ity of witnesses who testified before the Disciplinary Authority. Findings on the credibility of witnesses made by a tribunal of first instance are extremely difficult to upset. That tribunal has the distinct advantage of observing the witnesses as thy testify, an advantage which an appellate court does not possess. In S v Isolano 1985 (1) ZLR 62, at page 63, DUMBUTSHENA CJ quoted the following remarks by Lord MacMILLAN in Watt (or Thomas) v Thomas [1947] ALL ER 582 (HL) at 590 B-D:

“The appellate court had before it only the printed record of the evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of a trial. This assistance the trial judge possesses in reaching his conclusion, but it is not available to the appellate court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong.”

These remarks are equally applicable in casu.  The Appeals Committee had no justifiable basis to tamper with the findings on witnesses’ credibility made by the Disciplinary Authority.

In the circumstances, the second ground of appeal lacks merit and cannot be upheld.

Ground  3

This ground of appeal deals with the question of expert opinion evidence.  The appellant asserts that there was need for expert evidence to establish the fact that the signatures on the manual receipts were those of the appellant.

The appellant’s contention is that the Disciplinary Authority erred in ruling out the need for expert evidence to verify the signatures in question.  The appellant further contended that the Disciplinary Authority grossly erred in holding that calling for expert evidence was tantamount to requiring that the respondent proves its case beyond a reasonable doubt. He insisted that demanding the said expert opinion evidence does not raise the standard of proof beyond that which is required in civil proceedings to the one required in criminal proceedings.

The court was referred to s 22 of the Civil Evidence Act [Chapter 8:01] which provides for the use of expert opinion evidence in civil proceedings.  It reads as follows:

“The opinion of a person who is an expert on any subject, that is to say a person who possesses special knowledge or skill in the subject shall be admissible in civil proceedings to prove a fact relating to the subject which is relevant to an issue in the proceedings.”

The appellant submits, in paragraph 31 of his heads of argument, that the appeal must succeed as a consequence of this omission.

The respondent, on the other hand, contended that the tribunal a quo was not obliged to call for expert evidence where there are other ways and means of determining a dispute of fact.  The respondent pointed to the direct evidence of Ms Maingire and Mr Gudza, who testified that they handed over money to the appellant. On this point, the respondent  drew the court’s attention to paragraph 16 of its heads of argument, wherein the following is stated;

“In any case, the finding that Appellant receipted monies is supported by the direct evidence of

Ms Maingire.  The finding is also supported by the evidence of Mr Gudza.  Mr Gudza stated that he would bring the money to the Appellant.  Appellant would take the money outside the office and come back with a receipt. This testimony is on all fours with Appellant’s testimony.  The receipts that the appellant would bring are part of the receipts that are on record that bear appellant’s signature.  Surely, where Appellant asks somebody else to receipt money brought by him and is given a receipt bearing his profile and signature, one would expect him to have raised alarm if he was not the one who had issued the receipt. He did not raise such alarm and as a result he is taken as having issued the receipt.”

This is indeed a case where the fact that the appellant received money from a client, the client’s officials, is not hinged solely on circumstantial evidence such as that of signatures. It is hinged on the testimony of the witnesses who personally interacted with the appellant over a period of time. The Disciplinary Authority, as already indicated, found that testimony credible.  So, whatever form, shape or style the signatures took, it is not so much on the signatures as other available evidence, that the probabilities of the matter turn. That other evidence came from the aforesaid witnesses In highlighting this point, Mr Maguchu stated, during oral arguments;

“There is direct evidence he is the one who was accepting. So ground of appeal 3 is ill advised.  There is evidence he is the one who did the receipting, whatever signature he used.”

This is in sync with the approach adopted by the Appeals Committee to the evidence, as stated in its determination (page 20 of the record.)

The witness also confirmed that Appellant did the receipting of the payments (see p. 23 of the minutes of the 4th of July 2018 of the disciplinary proceedings).  In the Committee’s view, the evidence of the witness in this regard was not seriously challenged during cross-examination. Appellant’s lawyer focused on identification of signatures on the receipts and other contents of the witnesses’ statement yet the issue was whether or not Appellant received cash, a function that was supposed to be carried out by the Cashier. In any event, this Committee finds no reason why the witness would want to falsify implicate Appellant by testifying that Appellant received cash and receipted the payments.

The second witness, Mr Gudza, though he said issuing of receipts was an internal process, subsequently confirmed under re-examination that he made all payments to the Appellant (see  p. 31 of the minutes of the 4th of July 20018 of the disciplinary proceeding.) Accordingly, the evidence of the second witness sufficiently corroborated the evidence of the first witness that payments were being made to the appellant. Again the Committee finds no apparent reason why the witness would seek to falsify implicate Appellant as the recipient of the cash.”

These are findings on the credibility of the witnesses who testified before the Disciplinary Authority.  The Appeals Committee upheld those findings. Indeed, it had very little, if any room at all, to tamper with those findings.  The question of the credibility of witnesses, as assessed by a tribunal of first instance, has been comprehensively dealt with under ground of appeal 2.

The Appeals Committee also went on to examine how the Disciplinary Authority assessed the credibility of the appellant in his own defence.  He was found to be a poor witness. In fact, some of his evidence tended to corroborate that of the respondent’s key witnesses, on the crucial question of whether or not he received cash from them.  The following assessment is pertinent:

“In his own evidence, the Appellant also stated that “any client who for any reason would want to pay” and to “negotiate” Appellant “would take their money to the cashier so that they can (sic) be receipted (See p. 6 of the minutes of 12th of July 2018…..)The Committee also notes that the Appellant was not consistent in his evidence as he prevaricated whenever he was asked whether or he received cash from clients. The Disciplinary Authority itself observed that Appellant provided three different versions of his role regarding which payments (see page 14 of the minutes of 12th of July 2018…)  Needless to say, this casts doubt on the credibility of the Appellant’s evidence”.

These observations are well founded and borne out by the record.  It cannot be said that the Appeals Committee grossly misdirected itself in confirming the findings of credibility made by the tribunal a aquo. As already indicated, assessment of witnesses’ credibility done by a tribunal of first instance cannot be easily tempered with.

In the circumstances, the court finds no merit in ground of appeal 3 and is unable to uphold it.

Ground 4

Ground of appeal 4 is made up of 7 sub-grounds, which attack the factual findings of the Disciplinary Authority in various aspects.

Ground  4.1

This ground reads like ground of appeal  3, which deals with the failure to call for expert opinion evidence on the verification of signatures.

This aspect has been dealt with under ground 3.  The analysis made therein applies with equal force to this ground of appeal. In my view, it requires no further analysis or comments.

Ground  4.2.

This ground is concerned with the issue of machine printed receipts. The appellant basically avers that the Disciplinary Authority grossly erred in finding the appellant guilty of generating machine printed receipts. The appellant asserted that he never faced such a charge.  It was the Disciplinary Authority’s “fabrication and a misdirection.”

This ground of appeal is with respect, unclear and misplaced.

Nowhere in the record of proceedings was a verdict of guilty returned for generating machine printed receipts. A finding was made that appellant generated some machine printed receipts in addition to manual receipts. This finding was treated as part of the evidence tending to show that the appellant receipted monies from clients, a duty that ordinarily fell on cashiers who were his subordinates.  The Disciplinary Authority found him guilty of assuming those cashier duties, which was conduct inconsistent with his contract of employment.  This verdict was based on the evidence that he receipted monies, as shown in the manual and machine

printed receipts.

The findings of the Disciplinary Committee on this aspect are clear on the record, pages 3 to 5 of the minutes of the disciplinary hearing (pages 144-146 of the record.)

The Appeals Committee, did not misdirect itself on this point, this is what the Appeals Committee found;

“After a perusal of the recording of proceedings, the Committee has not found anything in the deliberations and findings of the Disciplinary Authority suggesting that Appellant was found “guilty of having generated machine printed receipts.” The Committee’s view is that the evidence tendered in respect of machine-generated receipts bearing the Appellant’s name was merely intended to buttress the averment that Appellant assumed the role of a cashier.

The Court finds no misdirection in that analysis of the Disciplinary Committee’s findings. There is therefore no merit in this ground of Appeal.

Ground 4.3

In this ground of appeal, the appellant takes issue with the findings that he accepted the genuineness of certain receipts which he allegedly issued.  The appellant asserts that he never made such an acceptance.  He was simply emphasising or highlighting the point that the audit report was incorrect.

The appellant’s averment in this regard arises from the findings made by the Disciplinary Authority on pages 3 – 4 of the minutes of the hearing (pages 144 – 145 of the record, wherein is stated;

“Furthermore, in his later evidence, the Accused himself acknowledged the genuineness of receipt number 796697 on Annexure B22, receipt number 378405 on Annexure B29 when he stated that the payments on those receipts had indeed been posted.  The Authority therefore found that by accepting some of the receipts as genuine, it therefore follows that the whole bunch should be genuine.”

The significance of the alleged concessions can only be understood from what the appellant stated during the hearing.  A look at the answers the appellant gave during examination- in-chief, cross-examination, examination by the hearing panel and re-examination does not disclose the alleged concessions. What appears to be relevant to that issue is on page 37 of the minutes of the hearing. (page 116 of the record).  The following exchange between the appellant and his legal practitioner is recorded;

“Legal Rep:	Now on A2, I want us to consider the entry on row number 3 which is unaccounted for and which shows a payment for US$300 for account number 5034491 and we beg leave to tender a copy of the account statement for the period 3 November 2012 to 15 December 20123 being Exhibit No. 1.

On the entry at two number 9 of A2 under Account number 5019706, there is a payment there for USW$200, I beg leave to tender a statement for that account showing dates from 3 November 2012 to 12 February 2013.

I will use those two to demonstrate the point.

Lastly I beg leave to tender as Exhibit 3 HC 786/18 filed on 13 March 2018 which is a matter between Mr Mpozori and ZESA.

I want you to comment in respect to Exhibit 1 and 2 in regards to amounts reflecting as having been paid vis-à-vis the audit report.

Accused:	The amounts indicated on the individual statements show that the payment that was made was accounted for contrary to what the audit states.

Legal Rep:	Are these the only ones?

Accused:	The ones that you have stated, the effect is that it makes the whole audit report incorrect.

Legal Rep:	The Statements in Exhibit 1 and 2 are they the only ones that show that payments were made if we look at all statements for all the clients on Annexure AQ1 and A2?

Accused:	These are not the only payments that show that. How this audit was conducted is best known by the auditors but from my understanding the information is inaccurate, which is part of the reason why we challenged the audit in the High Court.”

It indeed seems the appellant was commenting on such payments in the context of the audit report.  The appellant is saying these specific payments were reflected as having been accounted for in the bank statements. This exposes the inaccuracy of the audit report, which lists them as not having been accounted.  In essence, the appellant is impugning the audit report. He is not making any significant or material concessions vis avis the allegations levelled against him.

It appears the Disciplinary Authority misconstrued his answers, and treated them as an admission of liability, when no such admission was being made.  It was in fact, a rebuttal of the audit report. There is therefore some merit in the appellant’s contention that he did not make the alleged concessions.

However, as shown in the preceeding grounds of appeal, the case against the appellant is not hinged on any concessions he allegedly made.  The evidence against the appellant, which includes witnesses who made payments, has already been commented on.  Even if appellant’s contention in this specific ground of appeal, that is 4.3, is upheld, it does little, if anything at all, to detract from the credibility of that evidence.

Ground  4.4

The appellant here attacks the finding that his credentials were not stolen merely on the basis that the alleged theft was not reported.  This issue is arising out of the fact that some machine printed receipts bear the appellant’s name. The machine prints the amount receipted, and the name of the official who receipted the money.  Each official has a profile bearing his/her credentials, akin to a confidential PIN (Personal Identification Number) a person uses to gain access to a computer system.

Confronted with this phenomenon, that is, where his name appears on machine printed receipts, the appellant proffered the explanation that someone could have stolen his profile and hacked into the system. Thus, through this fraudulent access to his “PIN”, someone other than him receipted the monies in question.

The Disciplinary Authority rejected this explanation. It rejected it firstly, and mainly, on the basis that it was highly improbable that over a period spanning from 2010 to 2012, the appellant’s profile repeatedly fell victim to theft.  This was highly improbable given the fact (undisputed) that these personal profiles were frequently changed.  Further to that, the appellant never reported theft of his profile.

This reasoning appears on page 4 of the minutes of the hearing dated 13 July 2018 (pages 145 of the record).  It is therefore not correct to say that his explanation was rejected merely on the basis that he did not report the alleged theft of his credentials.  This was only one aspect of the probabilities of the matter. The matter did not turn solely on that, as alleged by the appellant. Even if the question of reporting the theft was not put in issue, the probability of a personal profile, frequently changed over a two-year period, being repeatedly stolen is far fetched.  This is essentially what the Disciplinary Authority said in its findings, which findings were upheld by the Appeals Committee.

There is nothing grossly unreasonable about that finding, which is a finding of fact.  In my view, the question of it being grossly unreasonable does not even arise.  The finding is not unreasonable at all.  It is far from the threshold highlighted in the cases of HAMA v NRZ and ZINWA supra, as to when findings of fact can be rejected.  Such findings have to be grossly unreasonable.

Ground of appeal 4.4. therefore, lacks merit and cannot be upheld.

Grounds 4.5 -  4.7

It seems to me that these grounds of appeal were unnecessarily split.  They can be crystallised into one fundamental issue – the accuracy and reliability of the audit report.  The pertinent question is whether or not the audit report sufficiently proves that fraud or theft in the alleged amount of US180 800,00 was committed by the appellant.

The appellant contends that the audit report falls far short of proving these allegations.  He avers, in paragraph 44 of his heads of argument;

“It is submitted that the audit report was inaccurate and half baked.  It could not on its own be the basis of the conviction in casu.”

The appellant then goes on to point out the inadequacies in the audit report and the investigations which preceded it.  To begin with, the extent of the investigations was too narrow.  At the client’s premises, ZimParks Hwange, they only interviewed one person – Ms Nehanda, was not at Hwange at the time the offences were allegedly committed.  At the respondent’s depot, only the appellant was interviewed.  The relevant bank statements were not interrogated, to verify whether the amounts in question had in fact been banked.  The appellant presented 3 statements which had the effect of reducing the amount alleged to be missing.

The key witness in respect of the audit report was Mr N. Chorasa, who led the team that carried out the audit.  Other auditors in that team were Mr O.A. Dondo and Mr G. Ngwarati.  Mr Chorasa is the one who gave evidence before the Disciplinary Committee on behalf of the team.  His evidence is recorded on pages 14 -31 of the disciplinary hearing minutes of 4 July 2018. (pages 93 – 110 of the record). A reading of  Chorasa’s evidence, especially the portion under cross-examination, tends to confirm the assertions by the appellant.

What is critical in that evidence is the statement by Chorasa that his team found it unnecessary to examine the respondent’s bank statements, to verify whether the amounts receipted were banked. They concentrated or focused their enquiries on whether the monies receipted were posted to client’s accounts.  The following exchange between appellant’s legal practitioner  and  Mr Chorasa, is instructive (page 25 of the minutes – page  104 of the record):

“Accused’s Legal Rep:	You said that the figure of $181 800 is obtained by looking at the receipts that he issued, less those that were posted in the system?

Fifth Witness:	Yes

Accused’s  Legal Rep:	I want you to explain what you mean by “posted in the system.”

Fifth Witness	We mean those that are recorded in ZETDC’s system in the accounts of the customer. That’s what we mean by posted.

Accused’s Legal Rep:	So let’s agree again, you were looking at whether a certain payment reflected on a receipt, and whether it appears in the customer’s bill for the month or Accountant Statement?

Fifth Witness:	Accountant Statement not Bill.

Accused’s Legal Rep:	By account statement, so that we’re on the same page, you mean something like the National Parks Statement Account Number 5034491?

Fifth Witness:	Yes

Accused’s Legal Rep:	So when you concluded that my client misappropriated funds, you were looking at those instances where payments were allegedly received but not reflecting in the customer’s statement like the one that I’ve just shown you?

Fifth Witness:	Correct.

Accused’s Legal Rep:	The usefulness of this receipt to us is  in so far as it tells us that receipts were issued but not posted, period?

Fifth Witness:	Yes.  ( Underlining added)

So, according to this explanation by the auditor, the fraud/theft allegations in respect of the US$180 800,00 are based on failure to post payments to the customer’s statements.

As the cross-examination progressed, the legal practitioner was able to highlight a number of receipts that were in fact posted to the customer’s account statements, contrary to audit’s assertion. Mr Chorasa then conceded that the balance allegedly unaccounted for would have to be reduced.  Significantly, the witness conceded that the audit would be incorrect. This is recorded on page 28 of the minutes (page 107 of the record):

“Accused’s Legal Rep:	If you’re presented with the verified evidence of this statement, what would be the effect on the audit you carried out?

Fifth Witness:	On that assumption the audit would be incorrect.

Accused’s Legal Rep:	If we work with that assumption, again the amount you indicate on that statement would go down isn’t it?

Fifth Witness:	Based on the evidence yes.”

The cross-examiner went further to enquire whether the auditors had evidence that the appellant made postings in respect of payments which were not received by the company i.e. the respondent. The witness said there was no such enquiry, neither was there any enquiry as to whether the appellant tampered with the system.  The exchange between the witness and the legal practitioner in this respect is recorded on page 28 of the minutes (page 107 of the record):

Where allegations of fraud or theft are levelled against an employee, and such allegations arise out of an investigation by audit, it is of critical importance that the evidence relating to that audit be credible. In the instant case, the credibility of the evidence presented by the respondent, in so far as it related to the audit report, was seriously dented. Crucial gaps were exposed, relating to the banking of the money. No investigations were carried out in this regard.

One expected some indication of how the system was manipulated or tampered with in execution of the alleged fraud. The auditor stated that their investigation did not focus on that aspect.   They focused on whether payments made by the customer reflected on the customer’s account statements. It turned out that most of the payments were infact posted. Otherwise, there should have been a complaint from the customer, to the effect that the payments they made were not reflected in their account statements. There were no such complaints. The customer did not instigate the audit investigation. It is not the complainant in the case. It is the respondent who is the complainant. It is therefore the respondent’s audit which must demonstrate how the fraud/theft was executed and who the perpetrator(s) were. In his testimony before the Disciplinary Authority, the auditor said his team did not bother with that aspect of the investigation. He conceded that the audit report resulting from such investigations is incorrect. Put differently, he is telling the Disciplinary Authority that the audit report cannot be relied upon.

How did the Appeals Committee deal with this problematic aspect of the case? It seems to me it downplayed or glossed over the significance of the audit report. Its remarks appear on page 26 of the record:

“The Appellant also sought to attack the accuracy of the entire audit report in his grounds of appeal. The Committee shares the sentiments that although there may have been inaccuracies in the audit report, this does not vitiate the rest of the evidence tendered to prove the commission of an offence on the part of the Appellant. In the same vein, the failure by the audit team to interview a wider pool of witnesses does not detract from the fact that, based on the record of proceedings, sufficient evidence was tendered to prove the guilty of the accused on a balance of probabilities.”

The respondent’s approach to this question is simply that if monies were not banked, as reflected in the Managerial Accounts, then there is no obligation to provide further proof. This is shown in the remarks made by Mr Maguchu on behalf of the respondent, during oral submissions:

“Management Accounts do not reflect that those monies were banked. How do you prove that there was nothing other than that there was nothing. The very evidence the appellant is using as proof that it was banked is disputed. (page 106) The witness is dealing with assumptions. He is not dealing with facts.”

There was little, if any comment at all, on the omissions pointed out in the audit investigation and report. It being the basis of the fraud/theft of US$180 801-00, the inadequacies highlighted, conceded  by the auditor who gave evidence, inflict serious damage on the respondent’s case. In this regard, the appellant submits, in paragraph 45 of his heads of argument:

“It is submitted that an audit report which is a product of such inadequate process and which is the fulcrum of the present matter is hollow and in accurate. The charge must not stand. Minus the audit report the Respondent’s case ought to crumble.”

I find considerable merit in grounds of appeal 4.4. to 4.7, in as far as the credibility of the audit report is concerned.

This brings me to an important dimension of this case.  If the said grounds of appeal are upheld, what crumbles, in my view, is the second charge. That is, the charge of theft or fraud. This charge was predicated on the audit investigations. As conceded by Mr Chorasa, the key witness on this aspect, those investigations were inaccurate, incorrect and inadequate.

The first charge however, is not hinged on the audit report. As already indicated in an analysis of grounds of appeal 1 to 3, it is hinged on the credible testimonies of  Ms Maingire and Mr Gudza. This was testimony on the acceptance of monies by the appellant from these witnesses. This evidence showed that the appellant abdicated his managerial supervisory duties by assuming the clerical operational tasks that should be carried out by the cashiers, over whom he had supervisory control.  This was inconsistent with his position “as the ultimate custodian and overseer of the commercial activities” of the respondent. This conduct clearly contravened s4 (a) of the National Code, as it constituted conduct inconsistent with the fulfilment of the expenses or implied conditions of his contract.

The court notes that in the grounds of appeal, numerous as they are, there was no attempt to clearly distinguish which ground or sub-ground related to which charge. Resultantly, the impression created was that all the grounds challenged both charges. It is the court’s considered view that having regard to all the facts and circumstances, the balance of probabilities supports the verdict returned on charge 1, and does not support the verdict returned on charge 2.

The court further notes the rather inelegant sequencing of the charges. A broader and more general charge was preferred first, followed by a narrower and specific charge. It seems to me the other way round would have been more appropriate.

If the case fails on the specific charge of theft or fraud, it then moves to the broader and general charge of conduct inconsistent with the conditions of the contract of employment. The reverse is difficult to sustain i.e. if the case fails on the general charge of conduct inconsistent with the conditions of employment, I do not see how it can then move on to the specific offences of fraud or theft.

The court is merely recording an observation it has made on how the charges are sequenced, and the difficulties entailed. It is not prescribing a format to be adhered to.  It is the prerogative of the party concerned as to what charges to prefer and the order in which they are preferred.

Ground 5

Under this ground of appeal, the appellant again brings up the issue of his identification by the witnesses who appeared before the Disciplinary Authority. He also brings up the issue of the verification of his signature on the receipts.

It is the court’s considered view these issues have been exhaustively dealt with under ground of appeal 2 and 3. The analysis done under those grounds equally applies under this ground. Any further discussion carries with it the risk of rehashing the same remarks.

Ground 6

It is not clear precisely what the appellant is impugning under this ground of appeal.

The respondent, it appears, took it to mean that the appellant is challenging the finding that he receipted some monies. This is an issue that has received considerable attention under grounds of appeal 2 and 3. The remarks made thereunder are equally applicable here, on the issue of whether or not the appellant received some monies in the course of his dealings with Zima Parks officials, notably Ms Maingire and Mr Gudza.

The appellant also appears to be challenging the credibility of the audit report. This aspect becomes clearer from remarks made by Mr Magogo during oral submissions under this particular ground of appeal. He made the following oral submissions:

“The auditor accepted that if you go to the client’s statements, we would actually find that some of the figures said not have been banked were reflected in those statements.

No client has come to say the statement I received does not capture any payment. The employer was not saying appellant did that - but that you altered the statement to ensure that the amount you received is captured on the statement. Ms Maingire and Gudza said all our statements reflected the payments.

How does the employer then say the monies were not banked? How this amount is said to have been missing is a mystery that has not been answered to date.”

I have made remarks which I believe comprehensively deal with this issue i.e the shortcomings of the audit report and its effect on the case against the appellant, under sub-grounds of appeal 4.4 – 4.7. Further analysis will almost certainly lead to a repetition of the same remarks.

Ground 7

In this ground of appeal, the appellant is challenging the Appeals Committee’s decision which dismissed his application to lead further evidence on appeal.

The appellant’s contention is that this was material evidence in his favour, which was within the possession of the employer and which was inaccessible to the appellant.

In countering this submission, the respondent averred that this was a point the appellant raised before the Disciplinary Authority and the Disciplinary Authority made a ruling against him. The appellant should have appealed against the determination of the Disciplinary Authority on that point, instead of bringing an application before the Appeals Committee.

The respondent further averred that in any case, the Appeals Committee’s determination on that application cannot be faulted.

A look at the minutes of the disciplinary hearing shows that indeed the evidence the appellant sought to lead at the Appeals Committee stage, was the subject of preliminary points he raised before the Disciplinary Authority. The minutes show, at pages 3-4 of the minutes of 4 July 2018 (page 44 – 45of the record) that the appellant requested for information on individual account statements showing payments made from 2009 – 2013. Further to that, he also requested “comprehensive Internal Audit statements” for the same period.

The record shows that on page 8 of the aforesaid minutes (page 49 of the record) the Disciplinary Authority made a determination on those points. It ruled against the appellant and gave its reasons. It stated that the requested access to the system was granted to the appellant. It noted that the appellant was furnished with the audit report, unless there were other reports he only was aware of.

Instead of appealing against the ruling by the Disciplinary Authority, the appellant decided to bring the issue by way of an application to adduce further evidence on appeal. I agree with the respondent’s submissions that an appeal is the route the appellant should have taken. The ruling by the Disciplinary Authority, as the record shows, was arrived at after due consideration of submissions from both parties on the said preliminary points. On this basis alone, this ground of appeal must fail.

However, the court notes that the Appeals Committee did not dispose of the application on the basis of the aforesaid procedural point i.e. that the Disciplinary Authority’s ruling should have been taken on appeal. The Appeals Committee disposed of the application on the merits thereof. Thus, notwithstanding my having upheld the procedural point raised by the respondent, I consider it necessary to go further and determine the ground of appeal on the merits. The appellant has attacked the decision of the Appeals Committee on the merits thereof. His averments are captured in paragraphs 55 – 60 of his heads of argument.

The appellant contends that the further evidence he sought to lead was in the possession of the employer. It was not accessible to him and was material to his defence.

The Appeals Committee rejected this contention. The rationale underlining the Appeals Committee’s decision was that the evidence in question was at all material times in possession of the appellant. The Committee noted that there was even a concession to that effect by appellant’s Counsel. The Committee’s reasoning is reflected in the following remarks, which appear on pages 35 – 36 of the record;

“It is common cause that Applicant had in his possession “further evidence” at all material times before, during, and after the disciplinary hearing but failed to adduce the evidence at the hearing. Counsel even made a concession to the effect that, indeed, the account statements were printed by Applicant himself on 28 June 2018 but tried to raise the contention that there was other evidence apart from these statements. Applicant did not provide any iota of explanation as to why the “further evidence” was not adduced at the initial disciplinary hearing.”

In disposing of the appellant’s application, the Appeals Committee relied on the case of Zimbabwe Open University v Magaramombe & Anor SC 5/16. In that case, MALABA DCJ (as he then was) referred to the case of Bendezi Sugar Farm (Pvt) Ltd v Nhere Estates (Pvt) Ltd, in which the requirements for the granting of an application for the adduction of further evidence on appeal were set out as follows:

“The principles upon which this court allows the adduction of further evidence  were set out in Border Syndicate (Pvt) Ltd 1961 R & N 28 (FS). They have been applied many times since, most recently in Beval Trading (Pvt) Ltd v Voest – Alpine Intertrading GMBHs – 149-94 (not reported). There are four criteria:

The evidence must not with reasonable diligence have been obtainable for use at the trial;

The evidence must be such as is presumably to be believed or is apparently credible;

The evidence must be such as would probably have an important influence on the result of the case, although it need not be decisive.

Conditions since the trial must not have so changed that fresh evidence will prejudice the opposite party.

See also Warren-Codrington v Forsyth Trust (Pvt) Ltd 2 000 (2) ZLR 377 (S) at 380G-381B.”

The Appeals Committee found that the appellant failed to meet the first legal hurdle,as shown in the cited passage from its determination. It was also the Committee’s finding that the appellant really wanted a second bite at the cherry. His request, overally, was tantamount to reopening the case. In this regard, the Appeals Committee made the following remarks, at page 8 of its determination (page 38 of the record):

“Accordingly, by asking this Committee to direct the employer to grant him access to the ZETDC system for transactions covered in Annexures A1-A3 of the record of proceedings at this stage, the Applicant’s application is, to all intends and purposes, merely an attempt to reopen the case afresh in order to enable him to ‘search’ for ‘new’ evidence in support of his defence. Put differently, Applicant seeks the leave of this Committee to have another bite of the cherry as it were.”

Having regard to all the facts and circumstances, in my view, the Appeals Committee properly exercised its discretion in dismissing the application to adduce further evidences on appeal.

In the result, ground of appeal 7 cannot be upheld.

Ground 8

Under this ground of appeal, the appellant makes one basic averment – that his submissions in mitigation were not considered before imposition of the penalty of dismissal. The appellant, in this regard, uses emphatic language that the Disciplinary Authority erred in “completely ignoring” his submissions in mitigation.

Disposal of this ground of appeal should not unnecessarily detain the court. It is simply a matter of looking at the record, and determine whether the Disciplinary Authority completely ignored appellant’s submissions in mitigation.

Page 6 of the disciplinary minutes of 13 July 2018 (page 147 of the record) indicates that the appellant opted to file written submissions in mitigation. These written submissions are recorded on pages 6to 9 of the minutes of the disciplinary hearing of 13 July 2018 (pages 147 -150 of the record).

The appellant’s submissions are immediately followed by the Disciplinary Authority’s decision, under the sub-heading  “DELIBERATIONS BY THE AUTHORITY”. It is here that the Disciplinary authority states that it considered the appellant’s submissions, which, in their opinion, were outweighed by the gravity of the offence.

In light of this, it is misleading to say that the Disciplinary Authority completely ignored the appellant’s submissions in mitigation. That assertion is not borne out by the record. It suggests that the Disciplinary Authority paid no heed whatsoever to the fact that the appellant made submissions in mitigation. The record shows that it did not ignore that fact at all. Rather, it was of the view that the submissions in mitigation were eclipsed by the gravity of the offence.

The Appeals Committee upheld the Disciplinary Authority’s approach to the question of penalty. It expressed its views in the following terms:

“… Contrary to this ground of appeal, a perusal of the record of proceedings shows that the Appellant’s submissions in mitigation were taken into account for purposes of penalty but were overridden by aggravating factors.”

The Appeals Committee went further to highlight the legal position on the discretion exercised by a tribunal of first instance on penalty. Its remarks, which appear on page 28 of the record, reflect a correct exposition of the law in this respect;

“In any event, this Committee is guided by the legal position that an appeals tribunal or court may not lightly interfere with the discretion of employer in imposing dismissal as a penalty on an employee found guilty of a misconduct which goes to the root of the contract of employment in the absence of a gross misdirection. (See Mashonaland Turf Club v George Mutangadura 2012(1) ZLR 183 (S)) at 186B-C and Celsys Limited v Ndeleziwa SC 49/2015). In the latter case, the court clearly stated that “In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion.”

See also Toyota Zimbabwe v Posi SC 55/07, ZB Financial Holdings v Maureen Manyarara SC3/12.

The respondent also raised the procedural issue  that it was improper for the appellant to directly appeal to this court against a decision of the Disciplinary Authority.  Ground 8 attacks the decision of the Disciplinary Authority on sentence.  This is an impropriety also noted in respect of other grounds of appeal were the respondent pointed out the irregularity of attacking the findings of fact of the Appeals Committee, when infact it is the Disciplinary Authority which made those findings.

The overall effect of the Appellant’s  submissions however, was to challenge the Appeals Committee’s upholding of the findings of the Disciplinary Authority.  The court found that the Appeals Committee correctly upheld the findings of the Disciplinary Committee.  In view of this, the appeal does not turn on the procedural point raised by the respondent.  It turns on the substantive findings made by the Appeals Committee vis avis the findings of the Disciplinary Authority.  The court approached the appeal in the basis of whether or not the Appeals Committee currently upheld the findings of the Disciplinary Authority.

Turning specifically to the question of penalty as already indicated, the Appeals Committee properly upheld the determination of the Disciplinary Authority.  The Disciplinary Authority properly exercised its discretion in arriving at the penalty of dismissal. It took into account the aggravating factors highlighted in its consideration of penalty. These included the appellant’s senior position, the tremendous influence he had on his subordinates, the high level of trust bestowed on him, and the persistence in the misconduct over some years.

As emphatically stated in a number of authorities, breach of trust, especially by someone in a position of authority such as the appellant was, goes to the root of the employment contract. See Standard Chartered Bank Zimbabwe v Chapuka 5-125-04, Innscor Africa (Pvt) Ltd Letron Chimoto SC 6/12, Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (S).

The fact that the appellant has been convicted of charge 1 only, in my view, does not alter the position in the authorities. Either of the two charges standing alone, reflects a serious breach of trust.  In any case, each of the offences in s 4 of the National Code, is classified under serious misconduct.  In light of this, a conviction on any one of the charges does not remove it from the category of serious misconduct.

Thus, whilst the appeal has succeeded in overturning the verdict in charge 2, it has had no effect on the penalty.

In the result, it is ordered that;

In respect of Charge 1

The appeal be and is hereby dismissed.

In respect of Charge 2

The appeal be and is hereby allowed.  The Appeals Committee’s determination be and is hereby set aside and be substituted with the following:

“Not Guilty”

In respect of the penalty

The appeal be and is hereby dismissed.

In  respect of costs

Each party bears its own costs.

Makuwaza and Magogo Attorneys,  Applicant’s Legal Practitioners

Dube, Manikai & Hwacha, Respondent’s Legal Practitioners