Ott O Matonhodze v Zimbabwe Platinum Mines (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/221/24
HARARE 25 OCTOBER 2023
CASE NO LC/H/339/23
AND 29 MAY 2024
---------


==============================

IN THE LABOUR COURT OF ZIMBABWE

HARARE 25th OCTOBER 2023

AND 29th MAY 2024

OTT O MATONHODZE

VS

ZIMBABWE PLATINUM MINES (PVT) LTD

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Appellant - Mr W. Kamusasa (Legal Practitioner)

For Respondent - Mr K. Maguchu (Legal Practitioner)

CHIVIZHE, J:

This is an appeal in terms of Rule 19 of the Labour Court Rules, 2017. The appeal was noted as against the determination of the Respondent’s Disciplinary Committee handed down on 14th April, 2023. The appeal is opposed. In relief Appellant prays for an order in the following terms;

“1. The appeal be and is hereby allowed with costs.

2. That the determination by the Appeals Committee be and is hereby set aside and substituted with the following;

a) Appellant is found not guilty and hereby acquitted.

b) Appellant is hereby reinstated to his position without any loss of salary and benefits with effect from the date of dismissal failing which the respondent shall pay him damages in lieu of reinstatement.”

BACKGROUND


The Appellant was employed by the Respondent as Junior Plant operator. The Respondent convened a disciplinary hearing for the Appellant on the 24th of February 2023. The Appellant was to answer to two charges, namely **(1) Category 3.3 Breaches relating to Indiscipline or Disorderly Behaviour, and in particular; Misconduct 3.3.1 (c)**

**Noncompliance with established procedures/standing instructions:** failure to follow established procedures or failure to handle complaints or grievances in the prescribed manner and charge **(2) Misconduct 4.7.1 (p) an act or omission which is inconsistent with the express or implied terms of reference for the employee**, according to the Zimplats Code of Conduct. The allegations surrounding the charge were that Appellant was said to have been involved in usury between 2021 and January 2023. Investigations by the Loss Control department implicated him in a series of cases where he was alleged to have lent money to four

(4) employees at an interest rate of 50% per month. It was also alleged that the Appellant did not declare his business interests to the Company as was required by the existing policy (HRAD30C – Declaration of business interests). His alleged money lending activities were said to be illegal, according to Section 3 of the Money lending and Rates of Interest Act. The Appellant denied all charges levelled against him. The Respondent also formulated the view that the Appellant’s conduct mounted to indiscipline and disorderly behaviour as well as conduct inconsistent with his contract of employment. The Appellant was found guilty of both charges and subsequently dismissed from employment. Following the Appellant’s dismissal, he filed an appeal with the Appeals hearing Committee in terms of the relevant Code of Conduct. The Appeal was concluded on 14 April 2023. The Appeals Committee upheld the decision by the Disciplinary Committee.

**GROUNDS OF APPEAL**

The appeal has been noted on the basis of the following grounds;

1. The Appeals Committee grossly erred in fact and in law by confirming the Appellant's guilt in circumstances where the alleged improper conduct of lending money to fellow employees did not constitute a breach relating to indiscipline or disorderly behaviour in terms of the code of conduct.


2. The Appeals Committee erred by failing to appreciate that there was insufficient evidence before the disciplinary committee to indicate that the Appellant engaged in a business of lending money on interest to fellow employees.


3. The Appeals Committee erred by concluding that the Appellant's conduct constituted a breach of the company policy relating to Business interests - HRAD30C.

4. The Appeals Committee grossly erred in concluding that the alleged misconduct of lending money to fellow employees constituted an act or omission which was inconsistent with the express or implied terms of employment.

5. The Appeals Committer erred in failing to appreciate that the Appellant did not conduct himself in a manner that is inconsistent with express or implied terms of his contract of employment.

6. The Appeals Committee failed to appreciate that the Appellant's conduct of lending money to fellow employees did not constitute behaviour or work which resulted in any conflict of interest arising between Respondent, its stakeholders and the Appellant.

7. The Appeals Committee erred by failing to appreciate that the Appellant's conduct did not go to the root of the employment relationship so as to warrant dismissal from employment.

8. The Appeals Committee erred in failing to appreciate that the penalty of dismissal imposed by the disciplinary committee was unduly harsh, excessive and disproportional to the alleged offence committed.

9. The Appeals Committee in endorsing the sanction of dismissal imposed by the disciplinary committee, it failed to appreciate that the Respondent did not suffer any prejudice from the alleged misconduct so as to warrant dismissal from employment.

10. The Appeals Committee erred in concluding that the dismissal of the Appellant had been effected in accordance with the law and thus could not be termed unfair.

The Respondent is opposed to the appeal. Through an opposing affidavit by Takawira Maswisiw, the Respondent’s Human Resources Director, the Respondent contends that only two issues are arising from the ten grounds as filed, these being (a) whether the Appellant was charging interest for the money that he admittedly lent to fellow employees and consequently whether such could be termed a business and therefore in breach of policy HRAD30C, BUSINESS INTERESTS and (b) whether the act of misconduct would warrant termination of the contract of employment. The Respondent further contends that all the grounds as presented lack merit and ought to be dismissed as Appellant was properly dismissed on the basis of written and oral evidence presented in the disciplinary hearing. In regards to the issue of the penalty of dismissal, the Respondent contends that it was appropriate and warranted in the circumstances of the case. The Respondent’s prayer is for the dismissal of the appeal with costs.

PARTIES SUBMISSIONS


Counsel for the Appellant submits that the first charge of disorderly behaviour and indiscipline was clearly misplaced. No evidence was led to support this allegation. The elements of the offence were not proved. It was not alleged and proved that the Appellant intimidated or incited other employees to violence of any form neither was it proved that he threatened violence or physical injury to any other person. In support of his submission, the Appellant has cited authorities in **Tanganda Tea Company Ltd. v Mvududu [2007] ZWSC and CABS v Rugwete, 2009 (2) ZLR 26 (S) at 300-31G** where the court stated that where an offence is not proved, the employee is entitled to an acquittal. The Appellant’s counsel further submits that the whole case hinged on the issue of allegedly conducting business in contravention of the company business policy. However, despite that fact, the Disciplinary Committee still found him guilty of committing breaches relating to indiscipline and disorderly behaviour. This is a relevant issue that should have been taken into consideration by the Appeals Committee. Appellants counsel also submits that this type of misdirection was one which would ordinarily vitiate the determination by the Disciplinary Committee. The law is clear, in any event, that an Appellate Court can only interfere with the discretion of a lower tribunal or court once it is established that it acted on a wrong principle; allowed extraneous or irrelevant considerations to affect its decision or made mistakes of fact or failed to take into consideration relevant matters in the determination of the question before it. This submission is backed by authorities cited including **Barros & Anor v Chimponda 1991 (1) ZLR 58 (S)** and **Aitken & Anor v Attorney General 1992 (1) ZLR 249 (S)**. It is the Appellants submission that the Appeals Committee fell into error by failing to set aside a wrongful conviction therefore as the interests of justice would demand, this court ought to set aside the determination.

The Appellant submits that the second charge of lending money to four employees at a 50% interest rate, which is the gist of grounds of appeal numbers 2 to 7, was not proved on a balance of probabilities. It is submitted that the Appeals Committee erred in failing to appreciate that the Disciplinary committee had only relied on the evidence of a discredited witness, one Saul Mawarire, whose testimony was weakened by a previous inconsistent statement he had made under oath in support of the Appellant’s narrative that the lending was not done on interest. The Appellant contends that this should have assisted his case and not the Respondent’s. It is the Appellants further submission that the Appeals Committee failed to appreciate that the evidence of the other four witnesses who allegedly wrote statements was not tested by the disciplinary committee to ascertain its credibility as they were not called to testify in support of their statements nor to corroborate the other witness’s version. The Appellant further submits that he testified in his defence that he had only assisted Saul Mawarire (the witness), by lending him US$750 to be repaid without any interest attached. This claim was backed by the sworn affidavit written by Saul himself confirming the said position. There was however no evidence led to suggest that the affidavit had been sworn to involuntarily by him. The Appellant submits that the oral evidence later tendered by the same Saul that he had been advanced US$400 instead, was clearly contrary to what he had sworn in an affidavit before the Commissioner of Oaths thus making his credibility highly questionable. The Appellant has cited the authorities in **S V Marutsi 1990 (2) ZLR 370 (SC)** and **Hlatshwayo v Mare & Deas 1912 AD 242 at 259**, where the court held that no person could be allowed to take up two positions inconsistent with one another, or as was commonly expressed to blow hot and cold or to approbate and reprobate. The Appellant further submits that the Disciplinary Committee failed to give reasons to support why his version was considered far-fetched and improbable whereas the version of Saul Mawarire was believed over his. The Appellant counsel contends that the cardinal rule on onus is that a person who alleges something in a court of law or hearing has to satisfy the court that he has proof, citing the same position in **Pillay v Krishna, 1946 AD 946 at 952 – 953** and **MB Investments (Pvt) Ltd v Oliver & Partners, 1974 (3) SA 269 (RA)**. The Appellant further contends that both parties had mutually destructive versions of the same narrative and the law clearly stipulates that the party bearing the onus ought to prove. The onus in this case was on the respondent as the employer. The Respondent had failed to discharge the onus on it of proving his guilt on a balance of probabilities. It was also clear that the Disciplinary Committee had relied on slight probability and conjecture in convicting him. This amounted to an error of law. The Appellant has placed reliance on **West Rand Estates Ltd v New Zealand Insurances Co Ltd 1925 AD 245 at 263**.

On the issue of the penalty, which is encompassed in grounds of appeal 7 to 10, the Appellant submits that once it is established that the conviction was wrong the penalty would fall away. However, even if it is to be accepted that he was guilty of the offence charged, a penalty of dismissal would be excessive in the circumstances considering that he was not given a proper opportunity to make submissions in mitigation of penalty as the decision to dismiss was made arbitrarily soon after the leading of evidence. The alleged misconduct also did not in any manner prejudice the interests of the Company. Further, the disciplinary committee failed to canvass the suitability of other forms of punishments bearing in mind that disciplinary action in the first instance ought to be corrective and educational and not punitive.

The Respondent in its Heads of Argument submits that while ten grounds of appeal have been raised, there are only two issues arising namely (i) whether the appellant was charging interest on the loans and (ii) whether the misconduct warranted a dismissal penalty. In response to the merits, the Respondent submits that the findings by the Disciplinary Committee were not contrary to the evidence presented thus there was no misdirection. The findings were supported by the oral testimony of a witness, Saul Mawarire who was a friend of the Appellant. In submitting such, the Respondent have highlighted that the powers of an appellate court are curtailed, the court can only interfere where the conclusions reached are so irrational and outrageous in their defiance of logic that no sensible person applying his mind to the matter could have arrived at such conclusions. Respondent has cited the authorities in ZINWA v Mwoyounotsva SC 28/15 and in RBZ V Granger and Anor SC 34/01. The Respondent also submits that the only basis upon which the witness ought to have been disbelieved was that he had signed an affidavit which stated that he had borrowed a sum of US$750. However, the witness successfully explained the discrepancy establishing that the document was merely a fraudulent document meant to disguise the interest charged as they could not have put it in writing that the Appellant had given a loan at a particular interest rate. The Respondent further contends that the afore-mentioned affidavit had not been signed before a Commissioner of Oaths and it made absolutely no sense as to why a person lent US$750 without interest would suddenly turn on his benefactor. Moreover the Respondent contends that in addition to Saul oral testimony, the written statements of T. Tengo and the other employees are also helpful, after all written evidence is considered as sufficient evidence in labour matters. The respondent has referred to Section 90A (1) of the Labour Act as read with TA Miller (Pty) Ltd v Minister of Housing and Local Government [1968] EWCA. The Respondent further contends that the Appellant was incapable of sticking to one story. On one occasion he said that Saul Mawarire (the witness) had signed an affidavit because there was no witness, particularly, that his wife was not there and he would have wanted some evidence. Previously, he had also said that his wife was present and they had gone as a trio to the Commissioner of Oaths as seen on page 6 of the Disciplinary Committee minutes. The Respondent also submits that there were two more people who had borrowed money from the
 Appellant and while the two people did not elect to comment on whether they were charged with interest or not, this would beg the question as to how the Appellant just dished out money at no interest to his workmates. The respondent’s position is that the conclusion by the Disciplinary committee was one that any reasonable person could arrive at, upon hearing the matter. The Disciplinary Committee as well as the Appeals Committee decisions ought not to be disturbed in this appeal.

The Respondent contends that the applicable penalty is an exercise of discretion by an employer and it can only be interfered with on appeal if there is a misdirection. The Respondent has cited **ZB Bank v Manyarara SC 7/12** in support of this position. The Respondent further submits, in casu, the appellant went against a direct prohibition of the employer and in so doing, ended up bringing his personal issues to the workplace. He sought to collect his debts and used Managers as collecting agents. Dismissal penalty was therefore clearly warranted in the circumstances.

**EVALUATION**

On the first ground of Appeal, it is an established position at law that where an offence is not proved, the employee is entitled to an acquittal. This was established in the case of **CABS v Rugwete, 2009 (2) ZLR 26 (S) at 300-31G.** Professor Madhuku in his book, **Labour Law in Zimbabwe** at page 178 states as follows;

“In determining whether or not an employee is guilty of the offence charged, the disciplinary committee must rely on facts. To convict, the proven facts must disclose the offence with which the employee has been charged.”

The Respondent charged and found the Appellant guilty of breaching **Category 3.3 Breaches relating to Indiscipline or Disorderly Behaviour, and in particular; Misconduct 3.3.1 (c) Noncompliance with established procedures/standing instructions:** failure to follow established procedures or failure to handle complaints or grievances in the prescribed manner. The Respondent did not in the hearing prove or establish how the Appellant breached this clause of the Code of Conduct. The Disciplinary therefore erred in finding the Appellant guilty of this charge. The Appeals Committee also erred in upholding a baseless conviction. The Respondent in its heads did not respond to the claim that the alleged breach was unfounded and the Appeals Committee had erred in upholding the conviction on this charge. Counsel for
 Respondent in oral submissions, however, conceded that there had been no evidence led to support the charge. The first ground of appeal is clearly merited and is accordingly upheld.

On the 2nd ground of Appeal, which encompasses the gist of grounds of appeal numbers 2 to 7, the Appellant further contended that Disciplinary Committee erred and misdirected itself in holding that the Appellant breached the Company Policy on Business Interests by lending money to four (4) employees at an interest rate of 50% per month. The Appellant claims that the Disciplinary Committee failed to prove this on a balance of probabilities. He submits that the Respondent relied on the single witness testimony of one Saul Mawarire whilst failing to call in the other 3 alleged witnesses being Trust Matika, Tengo Tembo and Muchengeti Siringwani. The Appellant in the hearing did not deny that he lent Saul an amount of US$750 which he claimed was to be paid back without interest. This claim was backed by a sworn affidavit by Saul Mawarire confirming that he had borrowed $750 and was to repay the same amount. The same Saul Mawarire when called to give oral evidence, however, disregarded his sworn affidavit before the Disciplinary Committee thus raising a question in terms of his credibility.

It is a trite position in our law that a witness who blows hot and cold ought not to be believed. In the words of DE VILLIERS JP in Hlatshwayo v Mare & Deas 1912 AD 242 at 259, dealing with a similar principle of pre-emption:

“At bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another, or as is commonly expressed to blow hot and cold, to approbate and reprobate.”

Our Courts have emphasized that no person may be allowed to opportunistically endorse two conflicting positions or to both approbate and reprobate, or to blow hot and cold. It may even be said that a party will not be allowed to have his cake and eat it too. In S v Marutsi 1990 (2) ZLR 370 (SC) the court observed that:

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other not both.”

Although the same witness justified his position by claiming that the document had merely been a fraudulent disguise, the fact that he wrote the contradictory statement and did not claim nor prove duress or force in doing so ought to have been held against him. The
 Disciplinary committee clearly erred in relying on a not so credible witness testimony in arriving at a conviction on the second charge.

It is also a trite position at law that any document or report which is used in a disciplinary hearing in the absence of an author who has to buttress what he or she has written, is treated with circumspection and courts will apply cautionary rules and will in most instances be reluctant to admit the evidence more so if its probative value depends on the credibility of someone who is not before the court and cannot be subjected to cross examination. This principle equally applies to disciplinary hearings. In this case there were three written statements by the other employees including T. Tembo. A perusal of the record clearly shows that some of the members of the Disciplinary Committee were concerned that the three employees were not called to testify and be subjected to cross examination in view of discrepancies in their testimony. On page 7 of the record “TN” stated as follows;

“My comment is; In my view as the employee representative, I request that the witnesses be called and testify because there are some issues which are not clear including the issue of 50% interests. I think these men panicked after receiving a tip-off from Loss and Control. They only mentioned it as a way to exonerate themselves. I am not saying it is a fact it is a possibility. My request is that they must be investigated. If they confirm that, that is what happened we will start from there. These people must be questioned because it’s a bad habit to lie.”

Another committee member “TM” agreed with him. It seems from the record nothing was done to have the four employees lead oral evidence.

The cardinal rule on nous is that a person who alleges something in a court of law or hearing has to satisfy the Court that he has proof. This position was established in **Pillay v Krishna**, 1946 AD 946 at 952 – 953. It is also a settled position in this jurisdiction that “he who alleges must prove”. See for an example Circle Tracking vs Mahachi SC 4/07. The Respondent, as the employer had the onus to prove that the appellant was involved in usury during the specified period. It is the court’s view that the Respondent in this case failed to discharge the onus on it. The totality of evidence as presented, in the form of the evidence of Saul Mawarire, which on the face of it was inconsistent, the written evidence of the other four employees, which, despite the Appellant’s challenge, remained untested at the end of proceedings before the Disciplinary Committee, was clearly insufficient to found a conviction on the charge.


On the final issue, which covers grounds of appeal numbers 8 to 10, the Appellant contends that, once it is established that the conviction was wrong, the penalty of dismissal so imposed ought to fall away. The court having established that there was no evidence to support a conviction on the first charge and insufficient evidence to support a conviction on the second charge it must follow that the Disciplinary Committee erred and misdirected itself in convicting the Appellant on both charges. The Appeals Committee in turn also erred in upholding the conviction and penalty.

In the result it is ordered as follows;

1. The appeal be and is hereby allowed with costs.
2. The determinations by the Disciplinary Committee as well as the Appeals Committee be and are hereby set aside.
3. The Appellant shall be reinstated to his original position without any loss of salary and benefits with effect from the date of dismissal. In the event that reinstatement is no longer an option the Respondent shall pay him damages in lieu of reinstatement the quantum of which is to be agreed upon by the parties, failing which this court, may, upon application, quantify such damages.
--- END OCR FALLBACK ---