Irvines Zimbabwe (Pvt) Ltd t/a Irvines v Wedzerayi Matanyange

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/271/2016
HARARE, 8 MARCH 2016
CASE NO. LC/H/271/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/271/2016

HARARE, 8MARCH 2016 			     	  CASE NO. LC/H/1094/15

AND 6 MAY 2016

In the matter between:-

IRVINES ZIMBABWE (PVT) LTD t/a IRVINES			Appellant

And

WEDZERAYI MATANYANGE						Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr G. Makings (Legal Practitioner)

For Respondent		Ms M. Nyangoni (Legal Practitioner)

MURASI J:

Respondent was in the employ of the appellant as chemicals handler.  It is alleged that he took some chemical with the intention of taking out of the company premises.  When he discovered that he could not possibly succeed in this endeavour, it is alleged that he spilt the chemical into a hedge close by and approached the security check-point with the empty container which he alleged he wanted to use to collect some water.  The respondent was brought before a disciplinary committee which found him guilty and recommended his dismissal.  The respondent took his matter to the Labour Officer and finally to arbitration.  The arbitrator found in favour of the respondent and appellant has approached this Court for relief.

Appellant’s grounds of appeal can be summarized as follows:

That the arbitrator grossly misdirected himself at law in coming to the conclusion that a willful act committed by respondent of destroying evidence of theft was tantamount to a minor loss or damage of the employer’s property.

That respondent did not have authority to take away the original container.

That the facts surrounding the commission of the offence clearly showed theft and the arbitrator had misdirected himself and that respondent’s conduct went to the root of the contract and justified his dismissal.

Mr Makings for the appellant stated that he largely abided by the heads of argument filed of record.  He submitted that in whatever way the action by the respondent could be viewed, it amounted to theft as the respondent did not have any right to remove any part of appellant’s  property without authorisation.  It was further submitted that the arbitrator had erred in holding that this was a minor loss and not amounting to theft.  Mr Makings further stated that respondent had deliberately thrown away part of the chemical in order to avoid detection.

Ms Nyangoni for the respondent also stated that she abided by the documents filed of record.  She further stated that the charge of theft preferred against the respondent was a wrong one.  It was further submitted that respondent had gone back to lock up his office and took a bottle which had very little chemical in it which he spilt in order to use the bottle to fetch water.  It was argued that the quantity of the chemical spilt was never ascertained and thus the allegation that it could be mixed up to 200 litres is mere speculation.  It was further argued that respondent was still in the company premises and subjected himself to the searches required at the security check point.  Ms Nyangoni further submitted that the offence of theft was not proved.

I will first consider the determination made by the arbitrator.  The arbitrator makes the following findings:

“The issue at stake here is to consider whether any theft or fraud took place.  For a theft charge to hold, the claimant must have removed or taken the chemical from the respondent’s premises with the intention of permanently depriving the respondent of the chemical.  In this case, the chemical was not found on the claimant nor was it taken from the respondent’s premises but was found spilled (spilt) on the hedge within the company premises. …

The evidence led before the Hearing Committee therefore does not sufficiently support or sustain the theft charge.  In other words, the claimant was wrongly charged and should have been charged for a lesser offence instead of being found guilty of an act not proved by consider.”

In short the arbitrator was of the view that insufficient evidence was adduced to show that respondent had committed the offence of theft.  What does the evidence disclose?  A reading of the record shows that appellant relied on information from an informant.  This informant was not called to testify.  What therefore remained were bare allegations against the respondent.  In fact, Mr Makings was at pains to concede that the informant should have been called to testify but he was also facing misconduct allegations and thus his cooperation was not to be taken for granted.

Did the appellant prove the charge of theft on a balance of probabilities?  The evidence adduced was that there was a portion of the hedge which showed that some chemical had been spilt.  The other evidence was that the respondent did in fact have in his possession a bottle which previously contained a chemical.  The Court enquired of Mr Makings as to whether a stock-take had been conducted by the appellant in order to ascertain any loss to appellant.  The response was in the negative.  What then did the appellant prove against the respondent at the hearing? Courts have occasionally had to point out that evidence does not have to be accepted merely because it is uncontradicted.  What is being weighed in the “balance” is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.  In West Rand Estates Ltd vs New Zealand Insurances Co. Ltd 1925 AD 245, Kotze JA had this to say:

“It is not a mere conjecture or slight probability that will suffice.  The probability must be of sufficient force to raise a reasonable presumption in favour of the party who relies on it.  It must be of sufficient weight to throw the onus on the other side to rebut it.”

It is my view that during the disciplinary committee hearing, there was insufficient evidence adduced to prove on a balance that respondent had committed the offence of theft.  It is not clear as to how the committee could have returned a verdict of guilty having regard to the nature of the evidence adduced before it.  The committee’s decision is aptly described in the words of Gillespie J, in S v Jojo Mberi HH 239/98 where he had this to say:

“In my estimation this is a classic example of the court massaging the evidence in order to have it fit a pre-conception.  That is not the way to do things.  It should scarcely need saying that one must examine the evidence first and see what it proves rather than arriving at a pre-conception first, and see whether it can, no matter how, be supported.”

It is my further view that the disciplinary committee fell into the error and was so pleased at having thought of a theory explaining the facts of the theft to the extent that it overlooked the apparent inconsistencies and thereby assumed the existence of facts which were not proved and could therefore not be legitimately inferred.

It is thus my view that the arbitrator was correct in making a finding that no evidence had been adduced to prove theft.  Mr Makings argued in his heads of argument that the arbitrator had erred in stating that it was a minor loss.  My view is that the real reason for his decision was that there was no evidence.  I consider what he stated as being minor as obiter as he was discussing the possibility of the appellant having charged the respondent with a lesser offence which could have been proved by the evidence.  The comments made obiter by the arbitrator to not detract from his main reason in finding in favour of the respondent that insufficient evidence had been adduced.

In the result the Court is of the view that the appeal is without merit and ought to be dismissed.

The Court makes the following order:

The appeal, being without merit, is accordingly dismissed.

The arbitral award of Honourable Kupara be and is hereby upheld.

That appellant meets respondent’s costs.

G. Makings Legal Practitioner. Appellant’s legal practitioners

Muhonde Attorneys, Respondent’s legal practitioners