Innocent Tivakudze v Sparrow Hauliers (Pvt) Ltd t/a J&J Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT No: LC/H/387/25
HELD AT HARARE
CASE No: LC/H/497/25
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

In the matter between:-

JUDGMENT No:  LC/H/387/25

CASE No:	LC/H/ 497/25

INNOCENT TIVAKUDZE	APPELLANT

Versus

SPORROW HAULIERS (PVT) LTD t/a

J&J TRANSPORT	RESPONDENT

JUDGMENT

Harare 10 September 2025

Before Honourable Mrs Justice Makamure J Honourable Mr Justice Jaravani J

For the Applicant:	Mr M.V Kasvaurere: Legal Practitioner For the Respondent: Mr A Makonya: Legal Practitioner Opposed Appeal

JARAVANI J: This is an appeal against disciplinary proceedings that were instituted by the Respondent against the Appellant. The Appellant was arraigned before the Respondent’s Disciplinary Committee on a charge of proven cases of theft or fraud in terms of the Code of Conduct in the Collective Bargaining Agreement for the Transport Operating Industry SI 42 of 2022 (hereinafter ‘the Code of Conduct’ and the ‘CBA’, respectively). The Committee conducted the proceedings against the Appellant and found him guilty as charged and imposed a penalty of dismissal against him. The Appellant appealed to the Respondent’s Chief Executive Officer (‘CEO’) who confirmed the disciplinary Committee decision with an indication that the Appellant was convicted for theft by connivance. The Appellant then noted an appeal against the Respondent’s Chief Executive Officer’s decision and also applied for review in terms of Rule

19(3). This judgment is only for the appeal proceedings and the review judgment is separate from this judgment.

The Appellant originally presented a record with mixed appeal and review procedures when the matter was set down for hearing in July 2025 and the matter was postponed for the parties to prepare a record with separate documents for the appeal and review. Consequently, several records were uploaded onto the Court portal by the parties but they agreed to use a specific 109 paged record.

The appeal was based on the following grounds of appeal: -

GROUNDS OF APPEAL

The Chief Executive Officer failed to realize the charge of proven cases of theft or fraud constituted improper splitting of charges.

The Chief Executive Officer fundamentally failed to consider that a charge of proven cases of theft or fraud requires a predetermination of theft or fraud by a competent court or quasi- judicial authority which requirement had not been satisfied against the Appellant.

The Chief Executive Officer irrationally confirmed the conviction of the Appellant as an accomplice to theft without joinder of perpetrators of theft in the disciplinary process.

The Chief Executive Officer outrageously concluded the disciplinary committee had a discretion to admit evidence of a cctv footage after both parties had made closing arguments.

The Chief Executive Officer erroneously sustained an insupportable conviction of theft despite evidence failing to prove elements of deprivation and acquisition, considering the object of theft never left the premises.

The Appellant abandoned Grounds of Appeal 1, 2 and 4 during the hearing so the Court presided over Grounds of Appeal 3 and 5. The Respondent raised a preliminary point in its papers which it abandoned during the hearing.

PARTIES’ SUBMISSIONS

Appellant’s submissions

In support of the 3rd Ground of Appeal, the Appellant insisted that the two tyre artisans were supposed to either be part of the disciplinary proceedings or be called as witnesses to the proceedings but they were not called to testify on whether they were acting in connivance with the Appellant when they took the tyre. The Appellant further submitted that the cctv footage relied on by the Respondent shows that it is not the Appellant who took the tyre but one of the two tyre artisans. The Appellant’s contention on this aspect is that there was no evidence of connivance because of the Respondent’s failure to involve the two tyre artisans in the disciplinary proceedings.

In support of Ground of Appeal 5 the Appellant submitted that the essential elements of theft in criminal proceedings remain the same as in disciplinary proceedings namely; the dishonest taking or acquisition of property from an owner with an intention to permanently deprive the owner of such property. The Appellant further submitted that the cctv footage that was played during the proceedings clearly shows that it is not the Appellant but one of the two tyre artisans who took away the tyre from the place where it was stored before subsequently loading it into the truck. The Appellant further argued that the tyre was never removed from the Respondent’s premises so no theft was committed in a situation where the property was never taken away from the Respondent’s premises.

The Appellant also submitted that the record of proceedings indicates that the Respondent made a case of unauthorized possession not theft. Once an essential element of the offence is missing a conviction ought not to follow.

Respondent’s submissions

In response to Ground of appeal 3 the Respondent submitted that once a charge is preferred against an employee, that employee is accountable for his or her own conduct. On being asked for authority for that submission by the Court the Respondent’s legal practitioner replied that he had no authority for that submission. The Respondent further submitted that the Appellant never called any witnesses at the hearing although he was at liberty to call witnesses. In its heads of argument the Respondent applied the ordinary principles of criminal law for the submission that accomplice liability is not dependent on the liability of principal perpetrators. The Respondent further submitted that the Appellant’s involvement in the misconduct was independently proved on a balance of probabilities.

In response to Ground of Appeal 5 the Respondent submitted that there was adequate evidence of theft against the Appellant. The tyre was found in the Appellant’s truck but his job card for the material day had no tyre related issues. The cctv footage indicated the Appellant conversing with the two tyre artisans but he initially denied that. The Respondent further submitted that the conviction was supported by evidence demonstrating intent and actions consistent with theft even though the object did not leave the premises. The Respondent also submitted that the cctv footage is circumstantial evidence of theft against the Appellant.

ISSUES FOR DETERMINATION

The following issues arise for determination from the Grounds of Review and the parties’ submissions namely: -

Whether the conviction of the Appellant was proper without the joinder of the two tyre artisans in the disciplinary proceedings?

Whether there was sufficient evidence of theft against the Appellant?

ANALYSIS

Whether the conviction of the Appellant was proper without the joinder of the two tyre artisans in the disciplinary proceedings?

The Appellant’s argument on the 3rd Ground of appeal is dual. He submitted that the two tyre artisans should have been part of the proceedings. The second aspect of his submission suggests that the two tyre artisans were supposed to be called as witnesses to the case.

The Court finds no merit in the Appellant’s contentions in the 3rd Ground of Appeal. On the issue of non-joinder of the two tyre artisans in the disciplinary proceedings the Court finds the Respondent’s submission that an employee is accountable for his or her own misconduct once a

misconduct charge is preferred against him to be correct. An employer has a disciplinary discretion reposed in it by the law to discipline an employee or employees it may choose to discipline. If an employee is guilty of the misconduct charge preferred by the employer, it is not relevant that other employees may also be guilty- Zimbank Corporation v Mbalaka SC55/2015 at page 4 and also Lancashire Steel (Pvt) Ltd v Mandevana and Ors SC29/95. The Court also finds that it was also incumbent upon the Appellant to call the two tyre artisans if he felt that they had valid evidence in support of his defence. The Appellant was not the initiator of the disciplinary proceedings so it was incumbent upon the Respondent to determine the witnesses it intended to call. Furthermore, the Appellant’s contentions on this ground of appeal are more against the manner in which the proceedings were conducted than the outcome of the proceedings so this ground is substantially a proper ground of review than appeal.

In the premises, the Appellant’s 3rd ground of appeal is not upheld.

Whether there was sufficient evidence of theft against the Appellant?

The charge of proven cases of theft or fraud that was preferred by the Respondent against the Appellant is found in Annexure 2 Clause 5.1 of the Code of Conduct which is titled; Action Code. This part of the Code comprises a schedule of applicable penalties for various offences. It is pertinent to note from the onset that the Respondent dismally failed to implement the Code of Conduct in this respect but the Appellant and his representatives failed to notice this clear anomaly. Annexure 2 of the Code of Conduct cannot be used in drafting misconduct charges since it is appropriate for penal purposes after conviction. Annexure 2 of the Code of Conduct consists of guidelines on applicable penalties not definitions of offences so it cannot be used as a constitutive source of disciplinary charges. The Respondent was supposed to rely on Annexure 1 of the Code of Conduct which consists of the definition of offences. None of the parties’ legal practitioners managed to address this anomaly when it was raised by the Court during the hearing since both parties’ legal practitioners appeared not to have carefully read and understood the Code of Conduct.

Fortunately, the parties managed to make relevant arguments through the application of criminal law elements of theft despite the above noted anomaly. Clause 47 of Annexure 1 of the Code of Conduct defines stealing or theft as: -

‘An employee is guilty of theft/stealing if he or she dishonestly takes property belonging to the employer or another employee without the owner’s permission with the intention of permanently depriving the owner of the property’

The definition and essential elements of theft in criminal proceedings is the same as the definition and essential elements of theft in disciplinary proceedings- Astra Industries Ltd v Chamburuka SC27-12.

In the present case the Appellant sought to impugn his conviction on the theft charge on the basis that there was no evidence that he took the stolen property from the Respondent’s premises.

The cctv footage showed that it is not the Appellant who took the tyre from the place where it was stored. The contents of the conversation between the Appellant and the two tyre artisans in the cctv footage remains unknown. The Respondent designated the cctv footage as circumstantial evidence in support of the conviction. It buttressed this on the fact that the Appellant had initially denied talking to the two tyre artisans before the incident. The Appellant countered this argument by submitting that the cctv footage cannot be treated as evidence of prior arrangement to steal or common purpose or connivance between him and the two tyre artisans.

The charge sheet on page 30 of the record indicates that the Respondent preferred a charge of Proven Cases of Theft or Fraud under Clause 5.1 of Annexure 2 of the Code of Conduct. The Charge was preferred from a mistaken understanding of the Code of Conduct because Annexure 2 of the Code of Conduct is relevant for penal purposes. Annexure 1 of the Code of Conduct does not provide for a composite charge of theft or fraud or alternative charges in its definition of offences.

The determination of the disciplinary committee on page 30 of the record and the appeal outcome by the CEO which is the subject of the present appeal indicate that both the CEO and the Committee made a finding that the Appellant was found in possession of a stolen tyre. That finding cannot, even intuitively, sustain a charge of either theft or Proven Cases of theft or fraud preferred by the Respondent against the Appellant. Possession of stolen property is not theft. The Code of Conduct does not provide for competent or permissible verdicts. The evidence adduced in the disciplinary proceedings and subsequently used on appeal by the Respondent’s CEO does not support the charge that was preferred by the Respondent against the Appellant. Professor L Madhuku in his book ‘Labour Law In Zimbabwe’, 2015 at p180-181 noted that: -

‘Where the evidence does not support the charge preferred by the employer, the accused employee is entitled to an acquittal, it not being the responsibility of the disciplinary committee to formulate the charges. Even if the evidence discloses some other offence in the code, the accused employee is still entitled to an acquittal unless that other offence had also been preferred as an alternative charge. […] Even for the Labour Court, the power to substitute its own decision or order does not permit it, mero motu, to substitute its own charge or make a finding of guilty on an entirely different charge- ZIMASCO (Pvt) Ltd v Chizema 2007 (2) ZLR 314 (S) and Nyarumbu v Sandvik Mining Ltd SC 31/2013.

The other line of cases postulates that disciplinary proceedings are not subject to strict rules of procedure and it is proper for a disciplinary forum to convict an employee for another act of misconduct other than the one preferred in the misconduct charge where the evidence discloses such an offence- ZB Bank v Masunda SC 48-16. Even under this school of thought, the Court is of the view that the Respondent has not proved a case of possession of stolen property against the Appellant because the Respondent had not yet been deprived of the tyre when it was recovered

from the truck. It is common cause that the tyre was still in the Respondent’s premises at the time of recovery and the Appellant never loaded the tyre into the truck.

The Respondent substantially relied on the cctv footage to justify the Appellant’s conviction. The Respondent submitted that the cctv footage is circumstantial evidence of the Appellant’s guilt. The rules applicable to the use of circumstantial evidence in civil cases are that: -

The inference sought to be drawn must always be consistent with all the proved facts.

It need not be the only reasonable inference arising from the facts.

The inference should be the readily apparent and acceptable inference or most probable inference from a number of possible inferences.

Mkozho v Standard Chartered Bank SC 73/20 at page 8.

The Respondent sought to rely on the fact that the Appellant was seen conversing with the two tyre artisans in the cctv footage but he had initially denied talking to them so an inference of guilt should be drawn from the Appellant’s conduct. The Court is of the view that drawing such an inference from the cctv footage would be over-stretching the application of the rules of circumstantial evidence. The evidence on all the records of disciplinary proceedings did not disclose the contents of the conversation between the Appellant and the two trye artisans so no inference can be drawn from a mere conversation whose contents was never disclosed. An inference of theft cannot be drawn from the cctv footage which has direct evidence which shows that the essential element of acquisition of the tyre was not done by the Appellant.

In the premises, the Court finds that the Respondent failed to prove a case of either theft or Proven Cases of Theft or Fraud against the Appellant in the disciplinary proceedings. The Court upholds the Appellant’s 5th Ground of Appeal in view of the evidential deficiencies in the disciplinary proceedings and the CEO’s determination.

COSTS

Both parties submitted that costs shall follow the cause and this is consistent with the general rule but subject to the discretion of the court. The Court is inclined to allow the appeal with costs. The Court considers that none of the parties has been absolutely successful in the present proceedings because the Appellant was only successful on his 5th Ground of appeal but it is the manner in which the Respondent failed to implement the Code of conduct in preferring a disciplinary charge against the Appellant which persuaded the Court to make an Order of costs against the Respondent. It was patently incompetent for the Respondent to rely on the penal part of the Code of Conduct namely; Annexure 2 in drafting the disciplinary charge against the Appellant in a situation where Annexure 1 of the Code of Conduct clearly provides for definitions of offences.

DISPOSITION

Whereupon, after reading the papers filed of record and hearing the parties’ legal practitioners it is hereby Ordered that: -

The appeal is hereby allowed.

The 3rd Ground of appeal is hereby dismissed.

The 5th Ground of appeal is hereby allowed.

The Respondent shall reinstate the Appellant to his former position without loss of salary or benefits and if reinstatement is no longer tenable, the Respondent shall pay damages in lieu of reinstatement to the Appellant the quantum of which may be agreed between the parties, failure upon which either party may approach this Court for quantification of such damages.

The Respondent shall pay the Appellant’s costs of suit on an ordinary scale.