Sifiso Mahlangu v ZB Financial Holdings (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/677/2016
HARARE, 25 NOVEMBER 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/677/2016

HARARE, 25 NOVEMBER 2015		       		    CASE NO. LC/H/264/14

AND 4 NOVEMBER 2016

In the matter between:-

SIFISO MAHLANGU							Appellant

And

ZB FINANCIAL HOLDINGS (PVT) LTD				Respondent

Before Honourable L. Kudya, Judge

For Appellant		C.  Mucheche (Legal Practitioner)

For Respondent		N. Moyo (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the arbitrator where he confirmed the appellant’s dismissal from work following allegations of engaging in conduct inconsistent with his work in contravention of Section (4) SI 15/06

Facts of the matter are that appellant was brought before a disciplinary committee after he had allegedly abused his position by recommending that his relatives get loans from his employer and did not declare such an interest to the board as required by the law governing his employment.  The said relative’s defaulted payment giving rise to the view that had appellant declared his interest properly some of the defaulters would not have qualified for the loans and consequently not prejudice the appellant’s employer. He was found guilty and he appealed internally without success.  He then went to arbitration where again the dismissal was confirmed.

Aggrieved by the arbitral decision he has now appealed to this court seeking a setting aside of the arbitral decision and his reinstatement with full pay and benefits or payment of damages in place of reinstatement.

He set out appeal grounds which he later amended to reflect only 2 grounds relating to the penalty and his guilt on the matter.  At the hearing of this matter it was also agreed that he had abandoned the penalty ground.  To that extent this appeal only addresses a single ground.  The single ground in question is that,

“Arbitrator grossly misdirected self by finding that appellant did breach section 4 of SI 15/06 yet the findings in question could not be established by the evidence which was led on the matter at the disciplinary hearing.”

In response to the appeal the respondent maintained that the appeal was misplaced since there had been adequate evidence led at the disciplinary hearing to found the appellant’s guilt.  The respondent therefore prayed that the appeal be dismissed and that the arbitral award be made to stand.

Both parties cited extensively what case law provides for on issues of what a point of law is and how similar cases have to be treated alike etc.  All these cases are apparent in the heads of argument filed of record and thus deserve no re-statement. What is of critical note from the submissions by the parties and the documents filed on record is that both parties agree that appellant did declare his interest on the loans which were given out to his relatives.  The only point of discourse is where appellant says his declaration to his juniors who processed the loans was sufficient and where the respondent say such was unethical because given appellant’s position the juniors could thus not get act in a manner which would prejudice his relative’s loan applications.  It is apparent from the record that indeed the declaration was made but it fell far short of what section 29 of the Building Society Act required him to do.  It would not be stretching one’s imagination too far to accept the argument that his juniors would thus not act to what they would view his “detriment”.  Given this argument the court finds itself without cogent basis of upsetting the arbitral award.

The law is clear that it is not the function of the appellate court to substitute its discretion for that of the lower tribunal even it is of the view that it could have arrived at a different conclusion of the same facts.

It is apparent that the assessment of the evidence by the lower tribunals and confirmation of the same by the arbitrator is without blemish.  In the ultimate this court finds itself with no basis to ask that the arbitral award to be vacated.

The appeal should therefore fail.

IT IS ORDERED THAT

Appeal being without merit it be and is hereby dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Coglan, Welsh & Guest, respondent’s legal practitioners