Rwatirinda Tsigo v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT/LC/H/334/13
HELD AT HARARE 2ND OCTOBER 2008
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE 	      JUDGMENT/LC/H/334/13

HELD AT HARARE 2ND OCTOBER 2008                  CASE NO LC/H/646/05

RWATIRINDA TSIGO						Appellant

ZIMBABWE REVENUE AUTHORITY				Respondent

Before The Honourable G Musariri, President

For Appellant		Mr J Wood, Advocate

For Respondent		Mr D Chinawa, Attorney

MUSARIRI, G:

Appellant worked for Respondent as a Revenue Specialist based at Beit Bridge.  By letter dated 5th August 2005 Respondent charged him with misconduct.  A hearing was held.  He was found guilty.  A penalty of dismissal was imposed.  He appealed to the Respondent’s Appeals Committee.  The Committee upheld Appellant’s dismissal.  He then appealed to this Court.

The grounds of appeal read thus,

“1.	No evidence was led to prove the allegation for example there were no witnesses to substantiate the allegation.

2.	The Appellant was convicted on mere allegations.

3.	The Appellant gave evidence which was not contradicted and therefore  should have been acquitted.  The evidence given by the Appellant shows that he had not committed any form of misconduct and therefore the finding of guilt was not justified.

4.	There was no proper trial.”

The facts upon which the charges were based were that,

“1.	You purchased one motor vehicle from South Africa, being a Toyota Camry (1993) for US$2 300.00 imported on 27 February 2004, using foreign currency purchased from the black market in contravention of the Exchange Control Regulations:

2.	You exported foreign currency in excess of the limit allowed under the Exchange Control Regulations;”

The findings of the Disciplinary Committee, which were upheld by the Appeals Committee, are summarised thus,

“Summary from the Committee’s Deliberation

Mr Rwatirinda Tsigo failed to prove the source of funding for the motor vehicle.

The evidence presented by the defendant was inconsistent, unreliable and therefore not credible.

The fact that Mr Rwatirinda Tsigo has been convicted in the court of law for exporting foreign currency is aggravating.”

Filed of record are extracts from the criminal records at Beit Bridge Magistrates Court.  They show that Appellant was charged with contravention of the Exchange Control Act Chapter 22:05.  It was alleged that on 25th February 2004 he unlawfully acquired foreign currency at Beit Bridge and exported it to South Africa without the approval of the exchange control authority.  Appellant appeared in court and tendered a plea of guilty to the charge.  He was duly convicted and sentenced.  On the basis of these facts alone it is clear that Respondent had a prima facie case against Appellant.  He admitted to unlawfully acquiring and exporting foreign currency.  Though the onus of proof fell on the Respondent, the state of the evidence cast an evidentiary burden upon Appellant to rebut the prima facie case against him. Failure to rebut would mean that the case was proved on a balance of probabilities.  Appellant produced a Notice Of Appeal filed against his conviction by the Magistrates Court.  The date-stamps thereon are unclear.  No clarification was tendered as to the developments since the filing of the notice in 2005.  More importantly we were not advised of the outcome of the appeal.  That being the case, the conviction stood as of the date the matter was argued in this Court.  Thus the notice does not rebut the case against Appellant.  I therefore consider that the Respondent rightly found Appellant guilty of the misconduct charged.

Appellant also complained about the manner in which the hearing was conducted. Such complaints relate to procedure.  They are dealt with by way of review rather than appeal.  By bringing an appeal only, Appellant foreclosed the  determination of his complaints of irregularities.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT