Fredrick Sunga v Zimbabwe Platinum Mines

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/283/2023
HARARE, 13 SEPTEMBER 2023
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IN THE LABOUR COURT OF ZIMBABWE

HARARE , 13 SEPTEMBER 2023

27 SEPTEMBER 2023

JUDGMENT NO LC/H/283/2023 CASE NO LC/H/224/23

FREDRICK SUNGA	APPELLANT

ZIMBABWE PLATINUM MINES	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	-Mr S.  Pelewelo, Unionist

For Respondent	- Mr A. Maguchu, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent. The appeal was made in terms of section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal. In an interlocutory ruling this Court struck off some of appellant’s grounds of appeal leaving the following;

“2. Wrongful allegations leading to unlawful dismissal

Co-accused was used as complainant’s witness

Witnesses’ statements not credible.”

These three grounds of appeal raise issues which will be dealt with in turn hereafter.

Whether the correct charge of misconduct was preferred;

In his heads of arguments appellant submitted that

“15. It is submitted that the charges were not clear as the Respondent’s Complainant failed to explain the charge of theft or fraud and the hearing Official Unilaterally changed the charge to Misappropriation. It is submitted that there was gross irregularity as grounds for dismissal were changed from Theft or Fraud to Mis- appropriation without holding a fresh hearing as the grounds were different see in the case of Standard Chartered Bank of Zimbabwe v Matsika 1997(2) ZLR 389(S)”

The Disciplinary Complaints Form is filed of record. The relevant part reads thus

“3.1 The Alleged Offence: (Section 3.4 of the Code)

3.4. Breaches relating to theft or fraud

3.2 Offence Summary (sections 3.4.5 of the Code)

3.4.5 Applying or attempting to apply to a wrong use for any

unauthorised purpose any funds assets or property belonging to the Company.”

Clearly appellant’s argument is misconceived. The Code of Conduct has a broad charge of theft/fraud which has sub-species one of which is misappropriation of company assets. It is that misappropriation sub-specie that was preferred against appellant. I entirely agree with the submission in respondent’s heads of argument that,

“17 . ……In casu, the charge sheet is very clear that of the different categories under “theft or fraud; appellant was being charged with misappropriation ….”

Whether the co-accused was wrongly used as complainant’s witness:

The co-accused referred to is named Godfrey Munemo. His written statement was part of the record. Munemo did not give viva voce evidence during the disciplinary hearing. The summary of findings by the Hearing Official does not mention Munemo or his statement. Apparently, the findings were based on the evidence of the 3 witnesses who testified. On that basis it was not substantiated that the co-accused was wrongly used as complainant’s witness. Further and in any event, there is nothing in the Labour Act or the Civil Evidence Act Chapter 8:01 which bars the use of the evidence of an accomplice in labour matters or civil proceedings.

Whether the witnesses were credible:

The key witness was Samuel Makusha. He testified thus

“SM: I observed Mr Sunga on CCTV footage removing parts (on) Mr Munemo. I noticed that this was abnormal because Mr Sunga is an Electrician who works at engineering services. I then approached Mr Tapera and asked if he had given Mr Sunga permission to remove parts from the vehicle. Mr Tapera denied having given Mr Sunga any permission to remove any parts from the vehicle.”

Mr Makusha’s evidence was entirely consistent with the detailed written statement he made prior to the hearing. The evidence was corroborated by the last witness Elijah Tapera as follows;

“ET: On the day in question, Mr Makusha came to my office and told me that he observed Fredrick Sunga removing parts from a scrapped vehicle on CCTV footage. I told him that Sunga did not have permission to remove parts from the vehicle. We went to the yard where the retired vehicles are parked and found Fredrick Sunga and Godfrey Munemo working on the right door of the vehicle. I asked Fredrick Sunga what he was doing and he responded that he was looking for bolts. I enquired from him on who gave him the permission but he couldn’t answer.”

In his defence appellant stated that he bought a scrapped vehicle from respondent. He found bolts missing from the engine. He believed the bolts were lying beneath the other vehicle in the scrap yard. He therefore went to the yard intending to find the bolts and thereafter seek permission to remove them. Appellant’s story smells fishy for 2 reasons. Firstly, when he first realised that the engine needed to be exchanged, he approached the relevant authorities

in respondent’s structures and was given authority to have the engine exchanged. But when it came to the bolts, he did not seek permission to search for same like he had done before.

Secondly it was found that he removed parts from the second vehicle and was caught working on its door. This contradicts the claim that he thought the bolts lay somewhere in the workshop. Yet he was caught removing parts from the vehicle.

Section 52 of the Civil Evidence Act Chapter 8:01 permits findings and decisions to

The appeal be and is hereby dismissed; and

be made on the basis of the evidence of “a single competent and credible witness” In casu the evidence of the both Makusha and Tapera proved the charge of attempted misappropriation.

Their evidence was not shaken in any material respect.  Accordingly, both disciplinary

Each party shall bear its own costs.

authority and appeals committee correctly returned and confirmed the guilty verdict.

Wherefore it is ordered that,

G MUSARIRI J-U-D-G-E