Martha Ncube v Masvingo Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/190/16
HELD AT HARARE 29 JUNE 2015
CASE NO
JUDGMENT NO LC/H/190/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/190/16

HELD AT HARARE 29 JUNE 2015				CASE NO LC/H/811/13

& 18 MARCH 2016

In the matter between:

MARTHA NCUBE					Appellant

And

MASVINGO RURAL DISTRICT COUNCIL		Respondent

Before The Honourable E Makamure, Judge

For Appellant			Mr C Kuhuni (Legal Practitioner)

For Respondent		Miss G Bwanya (Legal Practitioner)

MAKAMURE, J:

Most of the fact in this case appear common cause.  They are as follows.

The appellant was employed as a clerk by the respondent council.  She was responsible for receipting and banking funds on behalf of the respondent.  In March 2000 a home seeker paid twenty thousand dollars towards the purchase of a house from council.  The appellant received the money but she did not issue out a receipt.  She did not bank the money but kept it in a council safe.  The buyer one Charumbira, continuously asked for a receipt but she did not get one.  However she was issued with a lease agreement by the appellant.  This was on 4 December 2000.  Charumbira paid a sum of five thousand ($5000.00) being the balance of the purchase price on 2 December 2004.  No receipt was issued out.

In another separate matter but during the course of her course of employment with the respondent, appellant received rentals from a council house which rentals were supposed to be remitted to council.  The appellant does not own that house although she gave the impression to the tenant concerned that she was owner of that house.  Due to that misrepresentation the respondent lost one thousand six hundred and forty dollars ($1640.00).

The above facts were only unearthed by the respondent only in 2013.  This led to disciplinary proceedings being levelled against the appellant.  She was charged with fraud as follows:

“You made a misrepresentation in the sale of house number 154 and allocation of house number 257 in Mashava Township with the intention to defraud your employer and council clients.”

She was dismissed after being convicted of both acts of misconduct. She was aggrieved by that decision and appeals to this court on the following grounds:

“1.	The Appeals Committee grossly erred at law in finding the appellant guilty of fraud when there was before it no evidence was (sic) led to support the charge.

The Appeals Committee grossly misdirected itself on the facts in finding without any substantiating evidence that appellant had fraudulent intention in falling (sic) to receipt the amount ZW20 000.00 in year 2000 as it was undisputed in the disciplinary hearing that she had been under instruction from her immediate boss not to deposit the money.

The Appeals Committee erred at law by exhibiting bias against the appellant in that during the hearing members of the disciplinary committee acted as employer representatives.

The Appeals Committee grossly misdirected itself on the facts in finding that the appellant had used receipt books that were not issued by the respondent when no evidence to this effect was led by the respondent at the hearing and that it merely accepted the respondents averments to be the truth.

The Appeals Committee seriously misdirected itself at law in that it failed, even after due demand during the proceedings, to avail the full minutes of housing allocations up to 2004 as requested by the appellant.  It further grossly misdirected itself in making a finding that the unsigned two pages availed by the respondent to appellant during the hearing were sufficient for the purposes of the appellant’s defence.

The Appeals Committee erred in finding that deposits of ZW20 000.00 and ZW60 000.00 were not deposited when no such evidence was adduced at the hearing.

The Appeals Committee grossly erred in finding that appellant defrauded council of rentals in respect of Stand 257 Mashava when the respondent failed to refute the assertion by the appellant that the lease agreements issued by the respondent were all inchoate as such the respondent cannot refute their validity on that basis.

The Appeals Committee grossly erred at law in that it did not rule that this matter had prescribed as the facts giving rise to charges against appellant occurred in the year 2000 and have been known to it since then.

From the facts that appear common cause, the appellant misrepresented to a tenant who lived at House Number 257 that she was entitled to receive the rentals.  The said rentals were given to her.  That property did not belong to her.  It belonged to council.  She pocketed the funds.  This was to the actual prejudice of the respondent.

With respect to the first property, “house number 154”, the appellant did not issue out a receipt to the buyer; she did not bank the funds for its purchase, she kept the funds in a council safe.  This leads one to wonder why she conducted herself in this manner.  It is clear from the facts that with respect to both properties, the appellant conducted herself improperly.

Fraud is defined in the applicable code as follows:

“it is fraud to unlawfully make a misrepresentation with intention to defraud, whether written, oral or by conduct, which causes actual prejudice or which is potentially prejudiced to another.  Fraud is a crime as well as a civil offence.”

The appellant made misrepresentations which were prejudicial to the respondent.

The requirements of the law have therefore been satisfied.  In Astra Paints v Chamburuka SC 27/12 the Supreme Court stated that when a person is charged with an offence of a criminal nature, the proof is beyond a reasonable doubt.  However in the present case the applicable code stipulates that fraud is also a civil offences so the requisite proof in civil offence is applicable.  In labour matters, as in civil proceedings the standard of proof is on a balance of probabilities.  This means that under the circumstances of this case, the respondent discharged the requisite onus against the appellant.

In Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) the Supreme Court stated that:

“I have not been furnished with any reason to depart from the general rule that an appellate court will not interfere with a decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a decision.”

From the facts which as noted above, are largely common cause, the appellant made misrepresentations which caused prejudice to her employer.  There is no way that she can escape liability.  While the offences may have occurred as far back as the year 2000, this was only discovered in the year 2013.  Thus the question of prescription does not arise.  In fact the question of prescription was not brought up in the tribunal a quo.  As such it would be inappropriate for this court to consider an issue which the lower tribunal did not consider.

In Passmore Malimanjani v Central Africa Building Society (CABS) the Supreme Court held that:

“It is trite that an appeal court does not interfere with the exercise of discretion by a lower court unless it is shown that the discretion was improperly exercised.”

All in all I find that there was no misdirection by the Appeals Committee.  There is therefore no reason to interfere with its decision.

In view of the foregoing I find that there is no merit in all grounds of appeal.  The appeal fails.

Accordingly it is ordered that the appeal be and is hereby dismissed.

C Kuhuni Attorneys, appellant’s legal practitioners

Chihambakwe, Makonese & Ncube, respondent’s legal practitioners