Freddy Mazana v Zimbabwe Electricity Transmission and Distribution Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/39/2022
HARARE, 11 OCTOBER 2021 &
25 FEBRUARY 2022
CASE NO LC/H/290/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/39/2022

HARARE, 11 OCTOBER 2021 &		               CASE NO LC/H/290/21

25 FEBRUARY 2022

In the matter between:-

FREDDY MAZANA						      	   APPELLANT

And

ZIMBABWE ELECTRICITY TRANSMISSION		          	     RESPONDENT

AND DISTRIBUTION COMPANY(PVT) LIMITED

Before the Honourable Kudya J

For the Applicant		Adv. B. Magogo  (Legal Practitioner)

For the Respondent		T.S. Manjengwa (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent employer where it found applicant employee guilty of misconduct and penalised him by withholding his 2020 bonus and also by a final written notice.

Background to the matter is that the appellant was brought before a disciplinary committee it being alleged that he had breached Section 4 of the Model Code as read with Section 85 and 87 of the Public Finance Management Act Chapter 22.19.  In particular, it was said that he had failed to collect penalties from contractors who had failed to meet their performance targets. He was also said to have failed to retain 5% of the total value of the invoices at the end of each contract.  Finally, he was said to have authored advance payments to some providers without adhering to the stipulations for such payments like advance payment guarantees.  Irked by the guilty verdict and the penalty he appealed to this court on the matter which is the subject of this judgment.

It is settled law that a trier of fact only interferes where it is clear that the discretion was excised in a grossly unreasonable manner.  (See Nyahondo v Hokonya 1997 (2) ZLR 475(SC).  It is further settled that the test for guilt in such cases is on a balance of probability (See ZESA v Dera 1998 1 ZLR 500).

The cumulative import of the appeal grounds is that appellant says he was found guilty on insufficient evidence and that the penalty was too harsh if the court finds that the guilty verdict was in order.  The court will therefore address the appeal grounds cumulatively in that manner and conclude with the penalty ground.

Paucity of evidence

Appellant says he was not reposed with the duty of claiming penalties and retaining 5% of each of the contracts. The employer says he had that collective responsibility with the progress team.  It points out to communication between him and the auditors where he conceded that ZEDTC had indeed not been retaining 5% but as at the audit time they were now doing that.  The challenge with the facts of the matter in this regard is that it is not clear where appellant and the projects team is said to have acted collectively.  What seems apparent is that the role lay with the projects team mainly. That is however not to say appellant had no say in the matter too.  By virtue of his position he was duty bound to ensure that ZETDC did not suffer loss by not adhering to loss curbing procedures. In the ultimate also granted the projects team had a vital role but that could not excuse appellant. There is no good basis for this court to upset the factual findings of the respondent.  To that end the appeal should fail. Having concluded that the appeal is bad at law it becomes academic to discuss the issue of penalty so the court won’t discuss that. As regards costs there is no basis advanced for punitive costs so each party need to bear own costs.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed.  Each party to bear own costs.

Makuwaza and Magogo, Applicant’s Legal Practitioners

Wintertons – Respondent’s Legal Practitioners