Stembile Vutuzah v NetOne Cellular (Private) Limited

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO.175/23
CASE NO. LC/H/293/23
ZIMBABWE HELD AT HARARE 23
JUNE 2023 AND 28 JUNE 2023
IN THE MATTER BETWEEN:-
---------


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

IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE 23
JUNE 2023 AND 28 JUNE 2023

IN THE MATTER BETWEEN:-

STEMBILE VUTUZAH
AND
NETONE CELLULAR (PVT) LTD

Before Honourable Mr. Justice L.M. Murasi

For Appellant    Mr. J. Mambara AND
NETONE CELLULAR (PVT) LTD

For Respondent    Mr. T. Mupamhadzi

MURASI J:

This is an appeal against the decision of Respondent’s Appeals Committee which upheld the determination of the Disciplinary Committee finding the Appellant guilty of misconduct culminating in her dismissal from employment.

The brief facts of the matter are that Appellant was an Acting Supervisor in one of Respondent’s retail shops. It was alleged that it came to Respondent’s Loss Control Division that fraudulent activities were being conducted in some of the retail shops. Investigations zeroed on one of the employees named Khumbulani. The Criminal Investigation Department of the Zimbabwe Republic Police joined the investigations as the criminal matter had been officially reported. It became necessary for the investigators to visit the retail shop where this Khumbulani worked. Appellant was at the shop. What transpired between the investigators and the Appellant is subject to some dispute as this later resulted in the subsequent charges against the Appellant. What is not in disputed is that the said Khumbulani
 1 later visited the shop after the investigators had left. Khumbulani met the Appellant and had some discussion and he later left. Appellant does not disputed the fact that the said Khumbulani visited the shop and she talked to him.

Appellant was later charged with misconduct. She was convicted of two offences. She appealed but the result of such appeal was not favourable. She has approached this Court for relief. Appellant’s grounds of appeal are couched as follows:

1. The Appeals Committee erred and misdirected itself by confirming the decision of the Disciplinary Committee when there was no evidence to support the conclusion that the appellant was guilty of the acts of misconduct complained of.
2. The Appeals Committee erred by finding the appellant guilty of withholding important information when there were no specific or any instruction at all to report Khumbulani to the Loss Control or CID the moment the appellant saw him.
3. The Appeals Committee erred by disregarding the fact that part of the findings leading to the verdict of guilty (not securing the shop) and the issue of training were never part of the charges or evidence that was led before the Disciplinary Committee or the Appeals Committee.
4. The Appeals Committee erred by finding the appellant guilty of disregarding standing procedures/rules when it was clear that the issue of a common password to access the interface was introduced by Jemima Karombe and was prevalent in most of respondent’s shops, and most important of all, did not allow the user access to the files in the computer.

**Preliminary Issues**

*Mr. Mupamhadzi* attempted to raise a point *in limine* as regards the third ground of appeal and stated that this was a ground for review. He later abandoned the preliminary point.

The Court pointed to *Mr. Mambara* that the first ground of appeal was problematic as it was a ‘catch-all’ ground of appeal. Initially he stated that it was a proper ground of appeal because it attacked the evidence in both charges. He later realized that this was not the proper course to take and stated that he was abandoning that ground of appeal. This is to be commended. The first ground of appeal lacked precision as required by the rules. Indeed this was the subject of discussion in **Dr. Nobert Kunonga vs The Church of the Province of Central Africa SC 25/17** where GARWE JA (as he then was) had this to say page 15 of the cyclostyled judgment:

“Firstly, the notice must specify details of what is appealed against (i.e. the particular findings of fact and rulings of law that are to be criticized on appeal as being wrong) and secondly, the grounds of appeal must indicate why each finding of fact or ruling of law that is to be criticized as wrong is said to be wrong. For example, because the finding of fact appealed against is inconsistent with some documentary evidence that shows to the contrary; or because it is inconsistent with the oral evidence of one or more witnesses; or because it is against the probabilities.”

In the same judgment, the Learned Judge referred to the case of **Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern cape Division)** where it was stated as follows:

“…it has been held that grounds of appeal are bad if they are widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify and in unambiguous terms exactly what the case the respondent must be prepared to meet.”

The first ground of appeal clearly fell into the category described above.

**Appellant’s Submissions**

*Mr. Mambara* submitted that the charge preferred against the Appellant was to the effect that she had aided in the escape of Khumbulani and had not alerted the authorities when she met Khumbulani. It was further stated that the finding was made that Appellant had done this with the full knowledge that the said Khumbulani was wanted by the Police. *Mr. Mambara* argued that there was no evidence that Appellant had been given specific instructions to report to the authorities when she saw Khumbulani. He said that the charge was akin to disobeying lawful orders and as such no directive had been given to the Appellant in this respect. He further submitted that it was therefore wrong and a misdirection to find the Appellant guilty in the circumstances.

As far as the third ground of appeal was concerned, it was argued that issue of securing the shop and that Appellant had undergone training had not been part of the charges and had not been put to the Appellant and that this amounted to a misdirection in the circumstances.

In the fourth ground of appeal, it was submitted that Appellant had used her Supervisor’s password to access the interface and this was confirmed by Levi’s statement. *Mr. Mambara* argued that despite the existence of those standing instructions that no one was supposed to another’s password, it was a practice that was used in Respondent’s retail shops. He stated that it was his view that more evidence should have been led to ‘tilt’ the balance in the circumstances.

**Respondent’s Submissions**


Mr. Mupamhadzi submitted that Appellant had been informed by the Loss Control Team and members of the CID that they were looking for Khumbulani. He stated that the said Khumbulani had come to the Appellant but she had not reported the incident to anyone despite the fact that she was the Acting Supervisor and knew that they were looking for him. He further stated that Appellant had been advised not to alert the said Khumbulani that the team was looking for him. He argued that the Appellant was the responsible person at that particular time at that shop.

Mr. Mupamhadzi further submitted that it was admitted that the sharing of passwords was improper and not allowed in terms of the standing instructions. He stated that Appellant could not rely on the fact that the practice had become prevalent. As to the reference of training, he stated that this was not the reason that Appellant had been found guilty. It was an issue that had been stated ‘in passing’. He also argued that it was incumbent upon the Appellant to call Jemima to testify as she seemed to state that it was Jemima who had put in place the practice of using other people’s passwords. He however stated that the fact that one employee was doing the wrong thing at the workplace, did not sanitize the misdeed.

ANALYSIS

In Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) it was held as follows at 220 D-F:

“The position is also settled that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law. For an appellant to avail himself of a misdirection as to the evidence, the nature and circumstances of the case must such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.”

In Early Bird Farms (Pvt) Ltd v Mlambo (1997) 5 BLLR 541 (LAC) it was held as follows:

“When determining whether or not an employee is guilty of misconduct, the test which should be applied is whether the version of the party who bears the onus of proof (Employer) can be believed or not. The process involves comparing the version of both parties to determine which version is more probable.”

A reading of Appellant’s version of events reveals interesting facts. Shepherd Muyutu referred to Appellant’s response when she had charged with the offences. At page 55 of the record, the following is found:

“SM: I think paragraph 5-line number where she said, ‘I asked him how his son was doing and he said his son had been discharged and his phone had died. I also told him the CID and Loss Control had come and asked about his whereabouts and that I had tried to phone him, and there
 (they) had stopped me, to which he had replied so I asked him to pray about it so I think she was fully aware that Loss Control and CID were looking for him.”

Mr. Mambara agreed that the statement had indeed been made by the Appellant. What can be gleaned from the statement is that Appellant admits that Loss Control and CID had come looking for Khumbulani. She admits and conveys the message to Khumbulani that they had stopped her from calling Khumbulani. She was therefore aware at that time that Khumbulani was not supposed to be the recipient of such information. These are admissions made by the Appellant which formed part of the evidence led against her. In Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC 25/12, it was held as follows:

“A formal admission made in pleadings cannot be ignored by the court before whom it is made. Unless withdrawn, it prevents the leading of any further evidence to prove or disprove the admitted facts. It becomes conclusive of the issue or facts admitted.”

This position is also supported by section 36 of the Civil Evidence Act. Appellant makes those admissions. Appellant’s Counsel confirmed that she indeed made them. She disclosed to Khumbulani that the Loss Control team and members of the CID were looking for him. She admits that she had been told not to contact Khumbulani. As a result it took some time before Khumbulani could be arrested as he was now ‘on the run’, so to speak. Would a reasonable tribunal not arrive at the conclusion that Appellant had aided and abetted in the said Khumbulani’s escape? Furthermore, Appellant was the Acting Supervisor and Respondent was obviously placing its reliance on her. It my view that there was no misdirection on the part of the Appeals Committee upholding the decision of the Disciplinary Committee.

The ground of appeal relating to the issue of securing the shop and training in merely a red herring. It was certainly not part of the charges that Appellant was facing. It was pointed out by Mr. Mupamhadzi that this said ‘by the wayside’. It was not the ratio decidendi. I agree with him. The ground of appeal has no merit.

Appellant raised the ground of appeal dealing with use of passwords. Firstly, there is an admission that the standing rules prohibited the sharing of passwords at the workplace. I have already dealt with the issue of admissions earlier in this judgment. Secondly, Appellant does not deny such sharing of passwords. Appellant’s contention is that this was a common practice in Respondent’s shops. Clearly it cannot be a defence to such a charge that other employees were guilty of the misconduct. The ground of appeal is devoid of merit.

I note that Appellant did not file a ground of appeal against the penalty of dismissal as is the usual custom.


In the circumstances, the appeal ought to be dismissed for lack of merit.

The Court makes the following Order:

1. The appeal, being devoid of merit, is hereby dismissed.
2. The decision of the Appeals Committee upholding the determination of the Disciplinary Committee finding Appellant guilty culminating in her dismissal is hereby upheld.
3. Each party to meet its own costs.

J. Mambara and Partners- Appellant’s legal practitioners

Matsikidze Attorneys-at-Law Respondent’s legal practitioners.
--- END OCR FALLBACK ---