Innocent Gambiza v ZB Bank (Ltd)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/437/2012
HELD AT HARARE ON 18 OCTOBER, 2011
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	      JUDGMENT NO. LC/H/437/2012

HELD AT HARARE ON 18 OCTOBER, 2011		   CASE NO. LC/H/682/2010

AND 11 OCTOBER, 2013

In the matter between:-

INNOCENT GAMBIZA				-	Appellant

And

ZB BANK (LTD)					-	Respondent

Before The Honourable B.T Chivizhe: President

For Appellant 	-	Mr. G. C. Manyurureni (Legal Practitioner)

For Respondent 	-	Mr. S. Sadoma (Legal Practitioner)

CHIVIZHE B.T.:

The present matter is an appeal against an arbitral award handed down on 22 November 2010 by the Honourable Dr. N. T. Sambureni.

The background facts are as follows;

The Appellant was employed by the Respondent as a Relationship Manager. On 5 May 2010 he was arraigned before a Disciplinary Authority facing allegations of misconduct viz a series of acts inconsistent with the fulfillment of the express or implied terms of his contract and gross incompetence or inefficiency in the performance of work under Statutory Instrument 15 of 2006. The specific allegations were that;

He had demanded a bribe of US$1 000 from Mr. Musekiwa of Spilmore Enterprises (Pvt) Ltd and was paid R1 0000.

He had coerced a client, Mr. Keroro of Chinhoyi Butchery to buy him lunch and was given US$60.00 for taxi fare.

He had, on the charge of gross inefficiency, been keeping security documents, comprising other letters, guarantees and title deeds, in his office instead of keeping them in the vault.

The Appellant was found guilty on the charges. A penalty of dismissal was consequently returned on the charge of any act or conduct or omission consistent with the fulfillment of the express and implied conditions of his contract. Dissatisfied with that decision the Appellant lodged an appeal. The matter was consequently referred to an Arbitrator. The terms of reference were for the Arbitrator to determine whether the claimant was unfairly dismissed and to determine the appropriate remedy. The Honourable Arbitrator after considering the submissions and evidence handed down an award in the following terms;

“1.	That the dismissal was fair and is hereby upheld.

Arbitration costs to be borne in equal proportion by both parties.”

Still dissatisfied with those findings the Appellant lodged an appeal with the Labour Court against the arbitral award. The appeal was lodged on the following grounds;

The Honourable Arbitrator misdirected himself on a point of law in that he relied on Lovemore Chikuvanyanga’s evidence without subjecting same to meaningful circumspection given he was clearly a witness of dubious credibility and that his evidence could not be taken as sustaining the determination of the Honourable Arbitrator.

Appellant’s liability was not proven even on a balance of probabilities. The Honourable Arbitrator erred on the quantum of evidence required to constitute proof on a balance of probability.

The Appellant contends in his first ground of appeal that the Honourable Arbitrator misdirected himself in relying on Lovemore Chikuvanyanga Musekiwa’s evidence in order to arrive at the conclusion that the Appellant had demanded a bribe. It was Appellant’s contention that Lovemore Chikuvanyanga Musekiwa was in fact a dubious character. Given his dubious character it was according to Appellant strange that the Respondent had proceeded to grant the same a loan suggesting that Mr. Musekiwa had been induced to testify against the Appellant. The Appellant further contends that the Respondent was in the middle of a retrenchment exercise and had therefore brought the trumped up charges in order to get rid of him.

The Respondent’s position is that the Arbitrator did not misdirect himself in law in making the factual finding that the Appellant indeed had requested a bribe from Mr. Musekiwa. It was apparent from the record that after Mr. Musekiwa had advised Appellant’s supervisor Mrs. Mandiopera of the bribery request he had also compiled a written affidavit clearly explaining the circumstances surrounding the alleged bribery request. Mr. Musekiwa had during his evidence in chief before both hearings and even during cross-examination remained steadfast as to what had transpired. Mr. Musekiwa’s son Ryan had also corroborated the father’s testimony. To the allegation that Respondent had enticed testimony from Mr. Musekiwa in exchange for a loan the Respondent’s counter argument was that if indeed the witness Mr. Musekiwa was a liar and dubious or corrupt as suggested by Appellant why would Appellant have recommended a loan of US$12 000.00 to Mr. Musekiwa.

The Appellant is in the appeal challenging the factual finding by the Arbitrator that he had requested a bribe from Mr. Musekiwa. It is trite that an appeal court will not lightly interfere with factual finding by an inferior tribunal. The court can only interfer where the finding of fact can be said to be irrational. See in this respect Hama vs NRZ (1) ZLR 644 (S) where the Supreme Court held as follows;

“For an Appellant to avail himself of misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably have determined as it did had there been no misdirection. In other words the decision must have been irrational in the sense of being so outrageous in its defiance of logic or of acceptable moral standard that no sensible person would applied his mind to the question could have arrived at such conclusion.”

Further at page 670 the court observed as follows;

“the general rule of law, as regards irrationality, is that an Appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial court the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

It is clear from a perusal of the record that the witness Mr. Musekiwa before both the hearing officer and the Arbitrator remained consistent that the Appellant had requested from him a bribe of US$1 000 to enable him to process the application for a loan and that he had paid R1 000 on the day 24 October, 2009. In addressing the evidence of Mr. Musekiwa the learned Arbitrator said the following;

“It is quite clear from the disciplinary record that Mr Musekiwa was adamant that the Claimanat had requested him to pay US$1 000 as a bribe and that he paid R1 000 on the day in question.  Furthermore, I did not find anything on the part of witnesses which could suggest a sinister motive.”

The Appellant has also suggested that the witness was enticed to give testimony against the Appellant in exchange for a loan facility. That suggestion sounds incredible. It is clear from the record that the witness after the incident advised Appellant supervisor Mrs. Mandiopera of the bribery request. He later submitted a written affidavit explaining the circumstances surrounding the request for bribery. It is baffling to the mind as to why the witness would go to that extent if indeed he had been enticed to “frame” the Appellant as suggested. The Appellant in my view, also contradicts himself by making this submission. If indeed the witness was of dubious character as suggested why would he the Appellant have recommended him for a loan of US$12 000.00 from his employer. The suggestion is obviously made as an afterthought and ought to be dismissed as I hereby do.

On the second ground of appeal that too is meritless in my view. The standard of proof in civil matters is not anything other than proof on a balance of probabilities. See ZESA vs Dera 1998(1) ZLR 500(S). The Arbitrator correctly come to a conclusion based on the evidence before him that on a balance of probabilities the Appellant had committed both charges.

The Appellant contends that the Arbitrator should not have heavily relied on the evidence of the witness Mr. Musekiwa that witness not being a credible witness. The court has already addressed the aspect of the credibility of Mr. Musekiwa as a witness. The Arbitrator after assessing the evidence of this witness and finding him to be consistent in relation to the material aspect as to how the bribe was demanded, and further taking into account the corroborative evidence of Mr. Musekiwa’s son, Ryan (that whilst at the Main Post Office in Harare he had seen his father handing some money to Appellant) the learned Arbitrator came to the finding that Appellant had indeed requested for a bribe. That conclusion cannot by any stretch of imagination be considered to be irrational.

The Appellant has also sought to argue that the evidence of Ryan the witness’ son should not have been relied on as he is a minor child and liable to being influenced by his father. The record shows clearly that even before the hearing officer Ryan remained steadfast. He did fail to state whether the money given to his father was US Dollars or Rands.  That in the court’s view was not very material.  The most crucial part of Ryan’s evidence in the court’s view however is that he managed to identify Appellant in the proceedings as the person to whom the father had handed the money. Both the Hearing Officer and the Arbitrator were in my view correct in accepting Ryan’s testimony.

On the basis of the evidence in the record the findings by both the Hearing Officer and the Arbitrator cannot be regarded as irrational or so outrageous in their defiance of logic or of acceptable moral standard that no sensible person who applied his mind would have come to the same conclusion. The appeal clearly stands to be dismissed for lack of merit. It is so ordered.

Manyurureni and Company – Appellant’s Legal Practitioner

Gill, Godlonton and Gerrans – Respondent’s Legal Practitioner