Justice Mashizha v Prospect Lithium Zimbabwe

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/206/24
CASE NO. LC/H/975/23
ZIMBABWE HARARE, 9 FEBRUARY, 2024 AND 6 MAY, 2024
JUSTICE MASHIZHA
APPELLANT
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JUSTICE MASHIZHA
And
PROSPECT LITHIUM ZIMBABWE

Before the Honourable Kachambwa J, Judge;

For the Appellant: W. Kamusasa (Legal Practitioner)
For the Respondent: T. Nyamayaro (Legal Practitioner)

KACHAMBWA, J:

The Appeal

1. This is an appeal against the decision of the designated authority upholding the decision of the disciplinary committee. The appeal raised three grounds on conviction and two on the penalty. However in court it was agreed that there was only one ground on the conviction which is that there was no adequate evidence to convict on the charges raised. On the penalty it was agreed that if the charge was proved the penalty would be appropriate going by precedent of such cases as **Innsor v Letron Chimoto** SC 6/2012. The parties thus argued on the sufficiency of the evidence with each party insisting that its argument should hold the sway.


The Charge

2. The appellant faced a charge framed as follows;
   “Theft or Fraud. In that you loaded Truck KJL 310 MP together with Tonderai Chipfuto and Kudakwashe Mupedzisi. The truck (that) you loaded was apprehended at the security gate with 250 Ton bags concealed. Taking note that loading of the truck was done by the three of you and you were loading filled bags, no explanation has been offered from yourself to explain how the empty bags ground (found?) their way into the load that was going out. In as much as you indicated that the smaller trailer was loaded by Chipfukuto, you still do not disclose if he is the one who loaded the empty bags onto the trucks which suggests you are protecting him or yourselves as an accomplice. Your failure to disclose suggests (that) you are condoning such an act which makes you part in (and?) parcel. (sic). Exonerating you without telling the truth remains difficult. You therefore participated in loading a truck that was found with 250 empty ton bags which can only be attributed to those who loaded the truck”.

3. The charge is word for word the complaint’s statement. It is couched in such a way that it explains why the appellant was charged. He was charged because he refused to reveal as to who loaded the stolen bags. The fact that he denied knowledge of that person was not accepted. He was taken to be a liar. He was convicted and a penalty of dismissal was imposed. His appeal to the designated authority was dismissed on the same reasoning that he was protecting the thief. This is despite the fact that the thief had confessed. So what was he protecting if at all?.


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The Grounds of Appeal

4. The parties agreed that there was basically one ground of appeal which is that there was not enough evidence to convict. They therefore asked the court to consider whether there was such evidence. The evidence should be seen in the record of the initial hearing.

5. The record shows that at the disciplinary hearing the only evidence on the commission of the offence by the appellant is a statement by the supervisor, F.I.Ning to the effect that it is impossible not to see what the other loader is loading. There follows a series of questions and answers that do not really explain why the appellant should be held liable when others did not see and may be, could not see.

*F.I.Ning:*

*It should be noted that the loading is done from one side of the truck making it impossible for one not to see what is being loaded. It does not matter that one is moving forklift from truck to the product pad, these will not be far from the truck.*

*F. Magomana: Mr Ning do you have any security to oversee the loading process?*

*Yes. Also there are two forklifts at a time and the bags are not that big to an extent that you cannot see.*

*F.I.Ning:*

*F. Magomana: Is there someone who can witness?*

*We have security personnel at the loading place, but I do not remember who it was and also they couldn’t see the event (my underlining).*


G. Mhlanga: It does not make sense that to have someone who can see and the other not seeing.

F. Magomana: Remember the case came out of a tip off. What if the officer was setting a trap?”.

6. The above is apparently the information that informs the charge and the conviction. Those are the circumstances on which the court is being asked whether there is evidence to convict. Against this is the appellant’s denial and exoneration by one who took responsibility for the theft. Mr Magomana, the human resources manager who was the human resources official unfortunately interfered with the crucial question on why the appellant should be nailed for not seeing when security personnel responsible for seeing couldn’t see according to Mr Ning. What do we say then?.

7. A reading of the disciplinary committee’s findings is also most telling. It talks of evidence which is not derived from the hearing or at least one cannot pick it up from the record. It is very strong on saying that the appellant is lying to suit his case. It would have assisted a lot if the committee as a committee had had an inspection in loco to confirm the evidence by the supervisor. That would have given everyone an opportunity to confirm or not to confirm the evidence. It is also most disquieting that there was security personnel that was not called to give evidence neither was their absence explained. The supervisor says that they couldn’t see the event. Why not?. Why could they not be called to answer for themselves?. Why, in that scenario, should the appellant be obliged to have seen? Was he under an obligation to see? Was he supervising? Why?.

8. It is agreed by the parties that this appeal is purely on whether there is evidence to convict. We are guided by the precedent that an appellate court should be slow in upsetting the decision of the lower court on pure grounds that had it been the trial court it would have found otherwise. In the case of Hama v National Railways of Zimbabwe 1996(1)ZLR 664(S) the court says that, at 670 C-E;
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“The general rule of the 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: Bition v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropoklitan Borough of Tameside [1976] 3 ALL ER 665 (CA) at 671 E-H; CCSU v Min for the Civil Service supra at 95, A-B; PF ZAPU v Minister of Justice (2) 1985(1)ZLR 305(S) at 326 E-G”.

This position has been repeated in many cases.

Analysis Of The Evidence

9. The appellant can be said to have been convicted because he refused to name the thief. He said he did not see as to who loaded the bags. This evidence was not accepted. On the other hand the supervisor’s evidence was accepted without much ado. It had its own contradiction that the security personnel could not see which in itself is hearsay. That position could also be contradictory in that someone saw and alerted the guards at the gate leading to the search. Further, the supervisor himself did not see. And in any case there is no evidence of the situation to show that indeed it is true that the appellant could not have failed to see the criminal loading. The respondent also had the opportunity to call the security personnel who saw the theft but did not do so. Is it a misconduct that the appellant did not see?. If it is, is it theft, even as an accomplice? And why should he protect someone who was not only pleading the charge but was also exonerating the appellant?. It does not make much sense and it is not explained anywhere.
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10. The circumstantial evidence here is not adequate to find the appellant guilty. More is required. It was not safe to convict even though this is proof on a balance of probabilities.

Disposal

11. The appeal must succeed. It is accordingly ordered that;

1. The appeal be and is hereby upheld with costs.
2. The conviction and penalty be and are hereby set aside and substituted with the following;
   2.1. The Appellant is found not guilty and is acquitted.
   2.2. The Appellant be and is hereby reinstated without any loss of salary and benefits with effect from the date of dismissal.
   2.3. If reinstatement is no longer possible the respondent shall pay damages in lieu thereof the quantum of which may be agreed between the parties failing which agreement either party may apply to the court for quantification.
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