Mvurwi Town Council v Letwin Watambwa & Anor

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/276/2023
ZIMBABWE HARARE, 27 JULY 2023 &
CASE NO LC/H/882/22
18
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 27 JULY 2023 & 18

SEPTEMBER 2023

JUDGMENT NO LC/H/276/2023 CASE NO LC/H/882/22

In the matter between:-

MVURWI TOWN COUNCIL	APPELLANT

LETWIN WATAMBWA		1st RESPONDENT LOCAL GOVERNMENT BOARD	2nd RESPONDENT

Before the Honourable Kudya J

For the Appellant	V. Pfumvuti (Legal Practitioner) For the Respondent	A. Borerwe (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the local government board which set aside the respondent employee’s guilty verdict and dismissal penalty and reinstated her to her original position within Mvurwi Town Councils. This decision was arrived at after Mvurwi Council had sought Local Government’s ratification of the decision to dismiss the employee following allegations of misconduct against her.

At the onset of the appeal points in limine were raised. These were however consequently resolved leaving only for determination the merits of the appeal. This judgement therefore only discusses the merits of the appeal lodged by the Mvurwi Town Council. The grounds of appeal are as set out below;

“1. The Local Government Board erred at law when it failed to consider as it did the allegations and findings made against the Respondent of going against council resolutions in respect of:

A freeze on the sale of land.

Allocating cushioning stands to individuals who were not permanent employees warranted not only the disciplining of the Respondent but her dismissal

The Local Government Board erred when it failed to consider and make a finding as it did that the Respondent in breach of the Urban Council Act allocated residential stands to 3rd parties without the approval of the Town Secretary.

The Local Government Board erred when it failed to consider and make a finding that the Respondent breached section 300 of the Urban Councils Act when she recommended the disposal of stands belonging to the Appellant without the remittal of funds into the Estate Account of the appellant.

The Local Government Board erred at law when it concluded as it did that the Respondent’s signature had been forged when the Respondent had acceded during the disciplinary proceedings to the admission into evidence of documents bearing her signature and had not placed before the court anything that disproved the authenticity of the signatures.

Wherefore appellant prays for:

That the appeal succeeds.

The decision of the Local Government Board is set aside and substituted with the following:

“The decision to dismiss the Respondent by the Mvurwi Town Council be and is hereby confirmed”

In response to the appeal the employed maintained the following:

“12. The first ground of appeal avers that the Local Government Board erred when it failed to consider the allegations made against me for allegedly going against Council resolutions in respect of a freeze on the sale of Council stand, allocation of cushioning stands to permanent employees and alleged attempt to halt the police investigations into the alleged fraudulent land sales.

I will aver that the Local Government Board must have considered all the evidence that was presented before the hearing panel and came to the decision that my dismissal was irregular. They could not have made the decision from the blues. The Local Government Board obviously relied on the evidence presented to them. What I understand is that after a hearing Minutes will be forwarded to the Local Government Board together with all documents relied upon by the hearing panel and the ruling by the hearing panel and the Local Government. That is why it was important for the appellant to cite the Local Government Board so that the same will explain the basis for their decision.

I will state that the appellant has not given details in its appeal that would substantiate on the alleged grounds of appeal. That would have assisted me in my response. I believe my lawyers shall deal with the said grounds of appeal in detail in the heads of arguments when full details will have been made available.

As for now, I aver that there was no evidence that I had sold land contrary to the Council resolution. Rather it was clear the alleged illegal land sales had been done by some other employees being my back and there was no way I could have known of the same. The said employees were later dismissed for that offence and they ran away from the jurisdiction of the Criminal Courts. On the Cushioning Stands allegation, evidence clearly shows that I acted in good faith in the circumstances, and I genuinely believed

Council would ratify the decision since it has powers to do so. There was nothing irregular in what I did.

I will therefore aver that the Local Government Board did not err in any way in refusing to approve my dismissal. It is simply because my dismissal was in error. There was no evidence that would support such a dismissal.

The appellant also attacks the Local Government Board for finding that my signature had been forged arguing that I had acceded during the hearing to the admission into evidence of documents which had my signature and that I had not placed before the tribunal anything that would disprove authenticity of my signature.

For starters, that ground does not hold for many reasons. The first error of the appellant is to seek to argue that I bore the onus to prove that the signatures on the alleged documents was not mine when in actual fact the onus was on the employer to prove that I am the one who in fact signed the alleged documents as it seeks to prove its case. After all, the onus was not on me to prove my innocence or guilt but the onus was on the employer to prove that I was guilty. So it was the employer that was supposed to prove that I am the one who signed the alleged documents because that issue was put into issue.

The other problem with that ground is that the appellant is moving under a misconception that once a document is produced before the Court or hearing panel, its contents are there for admitted. That is completely wrong and never the position of the law. Admitting to the production of a document does not mean agreeing to its contents. My Lawyers will deal with that aspect further in the heads of argument.

I vehemently challenged having ignored any of the produced documents and that is on record. It was even clear that the signature was a copy and paste situation. The employer failed to prove that I sold the alleged stands and that I signed the alleged documents. None of the alleged beneficiaries of the said sale were brought to Court to confirm that I am the one who sold them such stands illegally. It was the employer’s onus to prove that aspect and it failed.

The court notes that even though a number of appeal grounds have been cited the main crux of the matter is the alleged fraudulent signature of the respondent. A reading of the record of disciplinary proceedings shows clearly that the main contention was on the issue that the respondent dissociated herself with the signatures which allegedly resulted in loss to Mvurwi Town Council that the sale of stands contrary to Mvurwi’s resolutions.

It is settled that the duty of the appellate court is not to substitute its discretion for that of the trier of fact. See Nyahondo v Hokonya and others 1997 (2) ZLR 475 (SC). In the case at hand the critical question to be argued is whether on the facts of the matter it can be said that the local government misdirected itself by setting aside the respondent’s dismissal. It need be noted that the main reason why the dismissal was upset was that there was no clear evidence that the respondent was the author of the documents which Mvurwi Council claimed occasioned loss to it. It reasoned clearly that even the auditors casted doubts on the signatures which were in the system. It would thus not be far etched to accept that it left a lot to be desired

for the employer to conclude the guilt in circumstances where there was need for forensic evidence to clear the question of who authored the documents in question. It is apparent from the hearing officers decision that onus was wrongly cast onto the employee for her to prove her innocence by being asked to show why she said that the signatures were forged. It is clear that it was the employer’s case that the signatures belonged to the respondent so it was duty bound to demonstrate why is said that the signatures were not forged. The mere say so from its witness could not assist in the resolution of the dispute which was at hand.

The court noted from the other grounds of appeal that the employer was arguing on the alternate that if it was not the respondent who signed the documents it means she was negligent in not finding out that there were such illegal sales of stands. It need be observed that the accountant who testified in the matter conceded that receipts could have been forged so there was no good excuse why the same could not apply to the leases. The court thus finds no fault with the local boards reasoning that respondent’s culpability was not proven on a balance e of probability See ZESA vs Dera 1998 (1) ZLR 500(S). In like manner the question of the loss suffered by the Mvurwi Council could only be explained by the fraudulent activities that took place and not by respondent’s conduct.

As regards the sale or recommendation of sale of stands to non permanent employees respondent reasoned clearly that she was acting on her superiors instructions. In any event such recommendation was subject to Mvurwi Council ratification. The court finds no fault with such a reasoning. In the main it was clear that there was no cogent basis for finding the respondent guilty and dismissing her. To that extent the local government board cannot be faulted for upsetting the dismissal. The court is ultimately satisfied that no good case for appeal had been made out. The appeal should fail in its entirety.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with each party bearing own costs.

Mbeta Magwiza Legal Practitioners, Appellant’s Legal Practitioners

Ngwerume Attorneys at Law, Respondent’s Legal Practitioners