Kizito Chikowore v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/266/25
HARARE, 9 JUNE 2025
CASE NO. LC/H/210/25
KIZITO CHIKOWORE
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/266/25 HARARE, 9 JUNE 2025		CASE NO. LC/H/210/25

KIZITO CHIKOWORE	APPELLANT

And

CITY OF HARARE	RESPONDENT

Before the Honourable Kudya J;

On 9 June 2025 this court dismissed the appellant employee’s appeal as lacking in merit and ordered that each party bears own costs. A request for the full reasons for the decision has been made and here is it:-

Background facts of the matter are that appellant employee who was in the respondent’s employment as a Senior Lands Surveyor Technician was accused of having surveyed a certain piece of State land without his employer’s authority. He was also accused of having proceeded on leave for an excess of forty days without having been granted the permission to do so in the form of approved leave forms. Following disciplinary proceedings into his matter he was found guilty of both counts and penalised with dismissal. He is unhappy with his job loss, so he has

approached this court on appeal. His appeal is premised on 4 grounds which can be summarised as follows:

Disciplinary Committee erred to find as fact that the employee surveyed and pegged Stand 6913.

Disciplinary Committee misdirected itself in finding that the employer had an interest in the employee’s conduct on 21 October 2018.

Disciplinary Committee misdirected itself on the facts and law by placing the onus of proof on the employee instead of the respondent when it found the employee guilty.

Disciplinary Committee erred in dismissing the employee’s explanation that he vent on leave after applying for leave and was labouring under a belief that it had been approved.

Dismissal penalty was too harsh in the circumstances and induces a sense of shock.

In the result, the employee prayed that, the conviction and dismissal by the disciplinary committee be set aside and be substituted by a verdict of not guilty and acquitted on both counts and be reinstated.

In response to the appeal, the employer maintained in summary that:-

Ground of appeal one is without merits and should be dismissed. Records show that the employee was seen on site carrying out survey work. He even admitted in his written statement and during the hearing that indeed he carried out survey works.

The employer had an interest in the employee’s conduct on 21 October 2018. Its name and reputation was at risk since the employee being a Council employee was seen doing survey work on a disputed State land.

Appeal ground is without merit and ought to be dismissed. Records show that the employer was seen at the site carrying out survey work. He even admitted in his written statement and during the hearing that indeed he carried out survey works. The burden of proof was not interchanged.

It is common cause that the employee completed a leave form for 6 July 2020 to 31 August 2020. His supervisor confirmed that the leave form was not signed and authorised. In the result the employee was absent from work for a period in excess of forty working days.

Disciplinary Committee assessed the entire evidence adduced at the hearing and found the employee guilty on a balance of probabilities. The penalty of dismissal was not too harsh. Dismissal penalty was well founded and justified.

In the result, the employer prayed that the appeal be dismissed with costs.

In its heads of argument and in its oral address before the court, the employer stated that grounds 1, 2 and 4 were not valid appeal grounds. In its view the said grounds were unclear as they fell below the test of valid appeal grounds set out in Kunonga v CPCA SC-25-17. It hastened to mention that the said grounds do not state with particularity the reasons why the findings complained about are incorrect or wrong. In the result the employer prayed that, grounds 1, 2 and 4 be struck out for being bad at law.

After listening to submissions on this point in limine, the court indicated that it would rule on the point in limine at the same time when it would be ruling on the appeal in the main. The ruling is as appears below:

Invalid appeal grounds 1, 2 and 4

A reading of ground 1 shows that, what irked the employee is that the committee concluded that he surveyed and pegged Stand 6913 yet he says he did not do so. In the court’s view the employee’s disquiet is quite comprehensible to the extent that, the grounds cannot be adjudged to be unclear. Similarly ground 2 is on the employee’s disquiet about the finding that the employer had an interest in his conduct on 21 October 2018. This again sets out with sufficient clarity what he is unhappy about. It thus does not offend the test of clear and concise grounds. In ground 4 the employee states his disquiet as being that his guilt on the charge of going away without off leave offended the fact that he had submitted his leave forms and assumed that it had been approved as he had leave days to his credit. This ground is also quite clear on what the employee is not happy about so it cannot be styled to offend the test of clear and concise grounds.

In the result the point in limine vs grounds 1, 2 and 4 being without foundation it be and is hereby dismissed.

On the merits plane the court observed the following about the matter:

Ground 1

The contention in this ground is that the employee did not survey Stand 6913. He says he did what he calls tacky survey wherein all he was doing was to merely show his relative who had an interest in the piece of land the points where the ZESA lines passed by. Evidence which was led from Phiri the Acting Principal Auditor and from Kashangura the Chief Geographical Information Systems Officer showed clearly that tacky survey was still surveying. In as much as there were no peg stays which were installed the very act of ascertaining the ZESA lines fell squarely with the construct of surveying. Kashangura stated that the alleged survey did not result in any report or diagrams which she could glean from the City of Harare records but such absence did not detract from the fact that the employee did what he called the tacky survey.

In any event, the concession that, he did the tacky survey put to paid his argument that Katsande or his employee was not called to testify to what surveying he did. It is settled that for a trier of fact’s findings to be vacated there must be demonstrable gross unreasonableness in the decision. See Hama v NRZ 1996(1) ZLR664(S). Whilst it is granted that, no pegging took place but, the conceded tacky survey satisfied the allegation that the employee worked on Stand 6913 using his survey techniques. The conclusion thus cannot be faulted as it is within the ambit of a reasonable conclusion emanating from the facts of the case. The ground being without merit should fail.

Ground 2

On the employer’s interest, it was taken as common cause that, the land in issue was State land but, the employer hastened to mention that, it could be drawn into the legal battles over that land at the backdrop of the fact that its employee was seen doing a tacky survey on the disputed piece of land. There was no need for any extra facts to prove the employers’ interest in the conduct of 21 October 2018. The occurrence clearly spoke for itself. Res ipsa loquitor. See Kabasa v Gwandi H-H-86-04). The fact that, the employee acted outside the employer’s time and without the usual necessary team for survey work does not detract from the fact that the employee offended as alleged. This ground lacking in merit should also fail.

Ground 3

The test for guilt in labour cases is balance of probability test. See ZESA v Dera SC 79-98. It is also settled that, he who alleges must prove. See Circle Tracking v Mahachi SC4-07. In the case at hand, the employer alleged that the employee did surveying work on 6913 with the potential of exposing it to legal suits over the disputed land. There was nothing more needed for the employer to prove that the employed acting inconsistently with his job calling. There was therefore, no reverse onus which was cast on appellant to prove his innocence. The evidence led on the matter was sufficient to birth the guilty verdict. The ground being without merit should fail.

Ground 4

The factual conspectus of this ground does not need elaboration. The employee went on leave which leave had not been approved. It was therefore not grossly unreasonable for the disciplinary committee to conclude that, the going away on leave without it having been granted, such conduct was consistent with being away without official leave for the period under debate.

The employee says he laboured under the impression that his leave could not be refused as he had leave days to his credit. He made no effort to ascertain the approval of the leave or otherwise hence was reckless as to whether the leave was granted or not. Such conduct clearly satisfied the test for being away without approved leave. There was therefore nothing remiss from the disciplinary committee conclusion that the employee was guilty on this count. The conclusion arrived at does not offend the test in Hama v NRZ Supra .The ground being without merit should fail.

Ground 5

It is settled that penalty is in the employer’s discretion. See Innscor Africa v Chimoto SC6-12 and Circle Cement v Nyawasha SC60-03. If the council took a serious view of the infraction by the employee, there was nothing remiss in dismissing the employee. The Council risked their reputation being tarnished by an employee doing tacky survey on contested State land. If dismissal was concluded to be the appropriate penalty there is no basis for this court to have such vacated. The penalty argument being without findings should also fail.

In the ultimate all appeal grounds being without merit should fail and resultantly the appeal was dismissed as per the order referred to in the introduction of this judgment.

G. Sithole Law Chambers- Appellant Legal Practitioners

Gambe Law Group- Respondent Legal Practitioners