Shah Mutsago v Mbada Diamonds (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/661/14
MUTARE ON 17th SEPTEMBER , 2014
CASE NO. LC/H/679/13
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/661/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/661/14

MUTARE ON 17th SEPTEMBER , 2014			     CASE NO. LC/H/679/13

AND 10th OCTOBER, 2014

In the matter between

SHAH MUTSAGO 						–	APPELLANT

And

MBADA DIAMONDS (PRIVATE) LIMITED		-	RESPONDENT

Before The Honourable L.M. Murasi, J

For Appellant   :	Mr D. Tandiri (Legal Practitioner)

For Respondent :	Mr A. Marara (Legal Practitioner)

MURASI J,

At the conclusion of the oral submissions the Court dismissed the appeal stating that the reasons would follow. The following are the reasons.

Appellant was employed by the Respondent. He is alleged to have been arrested whilst in possession of a quartzite stone. A subsequent Disciplinary Committee hearing found him guilty and he was dismissed. He has appealed to this Court against that decision. Appellant’s grounds of appeal are couched as follows:

The Appeals Committee was not properly constituted. The matter was supposed to be heard by a Designated Authority. The Code of Conduct does not provide that the Appeal was to be heard by an Appeals Committee. Consequently the appeal was heard before an improperly constituted authority.

The Appeals Committee erred by not finding that the Disciplinary Committee which heard the matter was not properly constituted. The Disciplinary Committee which hear the matter was not constituted as per the provisions of the Mining Industry Code of Conduct. Persons who were not supposed to be part and parcel of the Disciplinary Committee were allowed to attend the hearing.

The Appeals Committee further erred by passing a verdict of dismissal yet the Disciplinary Committee decided that the suspension be upheld. The Appeals Committee had no authority to substitute its own decision. The Appeals Committee was supposed to quash the proceedings of Committee which were held before the Disciplinary Committee.

Both the Disciplinary and Appeals Committees erred by finding the Appellant guilty of theft yet the essential elements thereof had not been proven beyond reasonable doubt. The Respondent failed to prove that the Appellant committed theft.

The Appeals Committee erred by not taking into account the fact that the stone in question had not been adjudged by experts to be a precious stone. Therefore, there is no evidence to prove that the stone in question was assayed and found to be a precious stone.

The Respondent conceded during the Disciplinary and Appeals hearing that the Appellant failed to follow set procedures. The Respondent conceded that there was a possibility of some pieces falling into the pockets of employees. The Appellant was, therefore, supposed to be found guilty of failure to follow procedures.

The Appellant was given inadequate notice to attend disciplinary proceedings. The Appeals Committee ought to have set aside the decision of the Disciplinary Committee on this basis.

Appellant’s Counsel submitted that he largely abided by the Heads of argument filed of record. It was stated that Appellant was wrongly convicted as Respondent had been unable to prove theft on a balance of probability. It was submitted that Appellant had merely not complied with procedures of “self-searching” which did not amount to an intention to steal. It was further submitted that such carelessness could not amount to an intention to deprive the Respondent permanently of the goods in question. It was further submitted that the penalty imposed by the Disciplinary Committee was not a competent one having regard to the provisions of the Code of Conduct and as such the Appeals Committee could not substitute its own penalty for that of the Disciplinary Committee.

Respondent’s Counsel submitted that the issue of inadequate notice being given to Appellant was never raised as a ground of appeal before the Appeals Committee and therefore could not be brought before the Court for the first time. It was stated that Appellant’s Trade Union representative had tried to raise the issue of the charge but later abandoned it. It was argued that Appellant was seeking to bring review matters in an appeal, which was improper. Further, it was argued, Appellant had not been able to show what prejudice he had suffered as a result. Respondent’s Counsel pointed out that Appellant had in the hearing apologized for his conduct. As far as the penalty was concerned, it was submitted that an employer was entitled to dismiss where the conduct of the employee went to the root of the contract.

A reading of the record shows that the Appellant was arrested on 10th October 2012 and brought before the Disciplinary Committee on 12th October 2012. Appellant was asked whether he was comfortable with the panel and he replied in the positive. Appellant never raised the issue that he had been given too short a notice to prepare for the hearing. On appeal, Appellant’s representative raised the issue of the charge and the composition of the Committee. The issue of inadequate time to prepare for the hearing was not raised. As regards the issue of the composition of the Committee, Appellant’s representative made the following concession:

“It is all clear and the composition was well in order and constitutional.”

This therefore means that the issue of the composition of the Disciplinary Committee was dealt with to the satisfaction of the Appellant. The first and second grounds of appeal must fail on that score.

The third ground of appeal refers to the wording of the penalty by the Disciplinary Committee. It is my view that the ground of appeal was raised when referring to a different set of minutes. The minutes which Appellant’s Counsel referred to during the hearing show the following titles as “Findings,” “Verdict” and “Sentence”. As far as the “Sentence” was concerned the Disciplinary Committee stated:

“Dismissal from employment with immediate effect (13/10/2012).”

This is the decision that was upheld by the Appeals Committee. Appellant’s ground of appeal in this respect must fail.

The next ground of appeal was that Respondent had failed to prove the charge of theft. It is pertinent to go to the record and examine the facts. Appellant approached the “search area” with his jacket in his helmet. He was informed to wear his jacket. He then proceeded to the search area. Whilst being searched he was found with the quartzite stone. The first question that arises is why had Appellant put the jacket in his helmet in the first place? When he was told to wear the jacket why did he not remove the stone and declare it if it had accidentally found its way into his pocket? There were no explanations forthcoming from the Appellant. A reasonable person would have inferred that he wanted to take the quartzite stone with him. Respondent’s Counsel correctly referred to the charge of theft as defined in the Criminal Code. I am of the view that the elements were clearly satisfied when one examines the facts and the evidence adduced.

The fourth ground of appeal is clearly mischievous. Appellant’s sought to argue that the item should be of value in order to be capable of being stolen. Appellant’s  Counsel obviously did not take into account the statement by the geologist to the effect that the piece of quartzite  was associated with the conglomerate. As far as the value is concerned, it was held in INNSCOR v CHIMOTO SC 6/12 that the value is no consequence if the offence involves a betrayal of trust and confidence reposed in the employee which goes to the root of the contract between employer and employee. This ground of appeal also fails.

In the sixth ground of appeal, Appellant avers that Respondent conceded that Appellant had failed to follow procedures and therefore should not have been charged with effect. The record shows otherwise. Appellant was charged with theft from the onset and the verdict of the Disciplinary Committee was:

“Guilty of stealing quartzite.”

The Court finds that there is no merit in this ground of appeal as there were no such concessions made by Respondent and it must fail.

The last ground of appeal raises the issue on inadequate notice. This has been dealt with elsewhere in the judgment. Suffice to say that this is a review ground which has been surreptiously included in the grounds of appeal. As stated earlier it must fail as it does not show what prejudice Appellant suffered as a result ( see generally RAJAH AND RAJAH (PVT) LTD. and OTHERS v VENTERSDORP MUNICIPALITY AND OTHERS 1961 (4) SA 402 (AD).

This brings me to the issue of the costs. Respondent’s Counsel urged the Court to award costs on a higher scale in this case. It was stated in MAHEMBE v MATAMBO 2003 (1) ZLR 151 that it is essential that the Courts award such costs where it is clear that the losing party was not genuine in the pursuance of a stand in the litigation process. The Court is of the view that in casu such a situation has not presented itself.

In conclusion the Court finds that the appeal is devoid of merit and is accordingly dismissed with no order as to costs.

Tandiri Law Chambers – Appellant’s legal practitioners

Mutamangira and Associates – Respondent’s legal practitioners