Shepherd Tembo v Golden Valley Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/129/14
HELD AT HARARE ON 27th FEBRUARY, 2014
CASE NO. LC/H/925/12
AND 14th MARCH, 2014
JUDGMENT NO. LC/H/129/14
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO.LC/H/129/14

HELD AT HARARE ON 27th FEBRUARY, 2014  CASE NO. LC/H/925/12

AND 14th MARCH, 2014

In the matter between:-

SHEPHERD TEMBO							Appellant

And

GOLDEN VALLEY MINE						Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: Mr Ndhlovu(Education Officer –

Associated Mine Workers Union)

For Respondent: Mr. H. Mutasa (Legal Practitioner)

MHURI J.:

Appellant’s three grounds of appeal were that

“the nature of offence of suspected theft does not exist in the code of conduct.

Respondent is acting on hearsay without sufficient evidence.

He is victimizing appellant who reported of theft 3 days earlier”

The brief background is that Appellant was in Respondent’s employ as a bellman whose duties were to transport persons from underground to the surface.

On the 5th of October, 2012 one person by the name T. Phiri went underground and came up and went out with a sack of gold ore.  T. Phiri was arrested by Respondent’s security while trying to carry the sack out of the company premises.  It was T. Phiri who upon being questioned, mentioned Joshua Phiri who in turn revealed that he was assisted by Appellant to carry the sack out for T. Phiri to collect.

On the same date, the security officer Mugwachani issued a report form wherein he stated that Appellant connived to steal gold ore with other fellow employees and it was the co-accused that implicated him.

As a result, Appellant was then charged, found guilty and was dismissed.

The charge was stated as suspected theft.  It is on this basis that Appellant argues that in the Code of conduct, there is no charge of suspected theft and as such his appeal should be allowed.

Whilst it could be true that there is no charge of suspected theft, can this be a ground to set aside the proceedings.  Certainly not in my view.  It is clear from the report form alluded to earlier, that Appellant was being suspected of having connived with other fellow mates, to steal gold ore.  From the onset he was alive to the fact that he was being suspected of stealing gold ore.

It is from the surrounding circumstances that Respondent suspected that a theft had occurred and in my view for the hearing official to have written “suspected theft” as the nature of offence is neither here nor there.  This cannot absolve Appellant at all.  It is not all irregularities that vitiate proceedings

TICHAWANA NYAHUMA V BARCLAYS BANK SC 67/2005.

Appellant did not except to the charge at the onset of the hearing, a clear indication that he was aware of the charge leveled against him.

The case of

AIR ZIMBABWE (PRIVATE) LIMITED V CHIKU MNENSA AND MAVIS MAREYI SC 89/2004

is very instructive.  It states clearly that

“a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent”

In civil matters such as this one, hearsay evidence is admissible.  See Section 27 of the Civil Evidence Act [Chapter 8:01].

In casu, it was therefore proper for Respondent to rely on the evidence of the two Phiris.  As Appellant was the bellman on level 23 and was the driver of the skip which carried people to and from underground and it was this skip that transported the sack of gold ore from underground, it was also proper to infer from the surrounding circumstances that Appellant did indeed connive with the Phiris to steal the gold ore.

See:-	EBRAHIM V PITTMAN NO 1995(1) ZLR H 184-185.

GOVAN V SKIDMORE 1952 (1) SA 732 AT 733H-734B.

in which it was stated

“It is trite law that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even although its so doing does not exclude every reasonable doubt.

In a criminal case …

In civil … one may by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

The averment that Appellant is being victimized for having reported a theft three days before is totally difficult to believe.  Why would he be persecuted for having reported T. Phiri the very person who was caught red handed with the sack of gold ore.  It would be different if he had reported one of the influential persons in Respondent’s employ, but this was not the case.

This 3rd ground of appeal is totally devoid of merit and Appellant was not able to substantiate it.

Overally I find that the appeal is meritless and ought to be dismissed.

In the result it is ordered that the appeal be and is hereby dismissed.

Associated Mine Workers Union – Appellant’s Representative

Gill, Godlonton and Gerrans – Respondent’s Legal Practitioners