Tanaka Sikwila v Petrotrade (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/112/23
HELD AT HARARE ON 10 FEBRUARY 2023
CASENO. LC/H/655/22
IN THE MATTER BETWEEN:-
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============================== IN THE LABOUR COURT OF ZIMBABWE
LC/H/112/23

HELD AT HARARE ON 10 FEBRUARY 2023

AND

IN THE MATTER BETWEEN:-

TANAKA SIKWILA
AND

PETROTRADE (PVT) LTD

Before Honourable Mr. Justice L.M. Murasi

For Appellant

Advocate F. Chinwadzimba

With Mr. H. Chitima

For Respondent

Advocate T.L. Mapuranga

With Mr. T. Makamure

MURASI J:

BACKGROUND

At the time Appellant was charged with misconduct, he was employed by Respondent as Acting Chief Executive Officer. Appellant's substantive position at the time was Finance Manager. It was alleged that Appellant had failed to declare or disclose that he had an interest in the oil industry despite having signed a memorandum during the course of his employment that he was enjoined to make such disclosure. Appellant is alleged to have dishonestly denied having such interest in the oil industry. He was subsequently charged with contravening section 4 (a) of the Model Code, Statutory Instrument 15 of 2006. He was brought before CHINHENGO J (Retired) who was the Hearing Officer. The Hearing Officer found him guilty of the charge and recommended his dismissal. Appellant appealed to the Appeals Committee. However, that committee upheld the decision of the Hearing Officer. Appellant is dissatisfied with that outcome and has approached this Court for relief.


Appellant’s grounds of appeal are as follows:

1. The Respondent’s Appeals Committee grossly erred by upholding the decision of the Disciplinary Authority that the Appellant’s company fell within the Oil Industry and therefore Appellant had a duty to disclose his interest in the Oil Industry when in fact the Appellant’s business did not qualify to be regarded as such in terms of the applicable law.

2. The Respondent’s Appeals Committee grossly misdirected itself in upholding the decision of the Disciplinary Authority that the Appellant had contravened his employment contract terms when he failed to disclose his interest in the Oil Industry, notwithstanding that there was evidence to prove that the Appellant was merely involved in Transport and Logistic business.

3. The Appeals Committee erred at law in upholding the decision of the Disciplinary Authority which decision effectively placed onus on the Appellant to prove his innocence contrary to the provision of the law which requires the employer to prove the guilty (guilt) of the employee on a balance of probabilities.

4. The Appeals Committee further erred at law in upholding the decision of the Disciplinary Authority to convict the Appellant notwithstanding the existence of uncontroverted evidence which exonerated the Appellant of the offence charged.

APPELLANT’S SUBMISSIONS

In respect of the first ground of appeal, Advocate Chinwadzimba stated the definition of Oilc Industry in terms of the Act should be considered in resolving the issue. It was further stated that the dispute arose from a contractual obligation and that there was no duty on the Appellant to disclose as he had only transported fuel. It was further averred that the transportation only took place in 2014 and that prior to that there was no evidence that Appellant had transported any fuel. Advocate Chinwadzimba further submitted that at the time this is alleged to have taken place, Appellant had resigned from the company, having done so in 2013. It was also argued that the company had initially been assigned to relatives and the formalization was done at a later stage. It was further argued that there was no conflict of interest as the signing of the document was done in 2008 and the company, Bretas, was only formed in 2009.

As regards the second ground of appeal, it was submitted that there was no contravention of the employment contract and that there was no interest to disclose as the transportation of the oil was done when the Appellant had resigned from the company. It was further submitted that the conviction was wrong as the burden of proof was shifted to the Appellant. Advocate Chinwadzimba argued that the conviction was essentially based on Appellant’s evidence and not on proof of the charges preferred against the Appellant. It was further averred that the Appeals Committee was wrong in upholding such a conviction.

Paragraphs 48 and 49 of the heads of argument contain the following submissions:

“48. As it turned out, it is only the appellant who testified to the issue. The disciplinary authority could only disagree with him if it was agreeing with the employer. The authority could not disagree with appellant by agreeing with itself. It was not a party to the proceedings. Once there was no contrary evidence against which to measure appellant’s testimony, the disciplinary authority and in turn the appeals committee, were bound to agree with appellant. If the disciplinary authority doubted appellant’s evidence that would still not change anything. Appellant would be entitled to the benefit of the disciplinary authority’s doubt.

49. These arguments were raised before the appeals committee on appeal. The appeals committee ought to have found that the disciplinary authority had misdirected itself in making findings in respect of the Declaration of Interest Form in the absence of evidence from the employer. The appeals committee therefore misdirected itself when it upheld the decision of the disciplinary authority to the effect that appellant had an obligation to disclose on the Declaration of Interest Form his alleged interests in the oil industry through his involvement with Bretas.”

RESPONDENT’S SUBMISSIONS

Advocate Mapuranga submitted that Appellant one offence with two specific portions, the first being a failure to disclose an interest in the oil industry and the second being dishonest when an enquiry was made by the Respondent. He stated that Appellant had to show that he was not dishonest when the enquiry was made. He pointed out that Appellant had not dealt with the issue that he had been dishonest as shown at page 202 of the record. Advocate Mapuranga stated that Appellant’s response at page 254 had falsehoods which showed that he had resigned from the company in 2011. He said this conflicted with the evidence at pages 256 and 257 which showed that the agreement with wife’s relatives was signed on 24 March 2013 and payment was to be made in the future. He also pointed to the fact that at pages 243 and 244 there was evidence that Appellant had bought a tanker after signing the agreement with the wife’s relatives. Advocate Mapuranga also referred to page 251 which showed an operator’s licence issued on 29 March 2012 in the name of the Appellant to ‘ferry goods’. He argued that the transfer of business to the wife’s relatives was obviously a ‘sham’.

Advocate Mapuranga further submitted that the Act does not define ‘oil industry’ but what is defined is ‘petroleum industry’. He stated that the Respondent would have defined ‘oil industry’ in terms of the Act had it wanted to do so. He pointed out that the Disciplinary Authority had made a finding that the transportation was in the oil industry and that Respondent also transported oil in the same industry and this therefore amounted to a conflict of interest. He further pointed out that the Disciplinary Authority had made the finding that Bretas was involved in the transportation of fuel from March 2013 and afterwards and that up to march 2013, Appellant was still involved with Bretas as he was still a shareholder.

The heads of argument deal in some detail on the issues addressed in oral submissions. Precedent is cited in support of the averments made.

DETERMINATION

Both parties cite relevant precedent in respect of the duty of an appellate tribunal. An appellate court will only interfere with the factual findings of a lower tribunal where there is evidence of a misdirection. Relevant cases in this regard include, inter alia, **Chioza v Siziba** SC 4/15, **Hama v ZRZ** 1994 (1) ZLR 664 (S), **Barros and Another v Chimphonda** 1999 (1) 58 (S). The findings of the tribunal a quo must be such that a reasonable tribunal faced with the same facts, would not have arrived at the same conclusion. Put differently, the tribunal a quo must have lost have lost its senses in arriving at the irrational decision sought to be impugned.

I will proceed to address the first ground of appeal. Appellant avers that it was wrong for the Appeals Committee to uphold the decision that he had a duty to disclose when Appellant's business did not qualify as such in terms of the applicable law. How did the Disciplinary Authority deal with issue? At page 188 of the record, the Disciplinary Authority recounts Appellant's response to the issues against him. I will proceed to reproduce in extenso the findings that are found on pages 188 and 189 so that the determination is clear. The Learned Retired Judge had this say:

“The mischief referred to by the Employee is that Petrotrade staff was involved in buying fuel at subsidized rates and selling it to the public at exorbitant prices. Some of them were operating fuel service stations. Management then sought to curb this mischief by requiring employees to complete a Declaration of Interest Form. The Employee however said that involvement in the oil industry should be understood in terms of the definition of ‘petroleum industry’ in the Petroleum Act. I do not agree that the Declaration of Interest was intended to address and monitor involvement of employees in the ‘petroleum industry’ as defined in the Act. In the context of NOCZIM and its employees scattered throughout the country and in order to deal with the mischief identified by management, the Declaration was intended to cover what may, at industry level, be described as insignificant involvement in the industry but which has the result that the Employee becomes conflicted. If the Declaration were intended to address employees involved in the ‘petroleum industry’ as defined there would have been no need to travel the width and breadth of the country to explain what is clearly provided in the Act.

The Employer would simply have sent a circular to the employees pointing out that any involvement in the oil industry, as defined in the Act, should be declared. I am satisfied that the exercise in which the Employee was involved as part of the team to explain the Declaration was designed to bring to the attention of the general workforce that any involvement in the oil industry, from petty buying and selling to large scale buying and selling or any activity involving fuel was to be declared. It is unthinkable that management went around the country to tell workers that if they were involved in transporting fuel from large-scale suppliers to consumers, they were not in the oil industry but in the transportation industry and that they did not have to declare an interest of that nature. This shows that the Employee’s contention that interest in the oil industry did not cover transportation of fuel and as such no positive declaration of interest was required if one was so involved, is fallacious and self-saving. The Declaration of Interest was clearly intended to inform the Employer of any activity in the oil industry of any of its employees however insignificant it may have been. It should also be recalled that the Declaration was not intended to prohibit employees from having an interest in the oil industry but to inform the Employer who had what interest so that the Employer could monitor such activity or even prohibit it, on a case-by-case basis, as appropriate. One would have expected that in advancing the argument based on the definition of oil industry or petroleum industry, as did the Employee, his intended message would have been ‘Yes I was involved in the oil industry but the activity I engaged in is not covered by the definition in the Act.’ But alas, the Employee did not even admit that he was in any way involved in any activity that could remotely be described as an activity in the oil industry. He said that he was involved in passenger transportation, bulk water supplies, and that Bretas only transported some fuel only after he was no longer with it.

The Disciplinary Authority starts with the genesis of the Declaration of Interest. The Disciplinary Authority also refers to Appellant’s involvement in going around the country informing the other employees of the problem that had developed. An analysis is made of the factual situation. Can it be said that a reasonable tribunal could not have arrived at the same conclusion? It is my considered view that any reasonable tribunal would make the same decision. There was no misdirection on the part of the Appeals Committee in confirming this finding.

The second ground of appeal, though similar to the first ground, raises the issue that Appellant was involved in transport and logistics. What is noteworthy in this ground of appeal is that there is no mention of the fact that Appellant had resigned from the company at some point. Be that as it may, the Disciplinary Authority dealt with the matter in the following manner at page 193 of the record:

“In my view it was not the intention of the Employer to be confined to the definition in the Act in determining whether or not its employees had an interest in the oil industry. I equally do not agree with the Employee’s contention that, because the transportation of fuel is governed by the Road Motor Transportation Act and not by the Petroleum Act, it is for that reason not an activity to be governed by the Declaration. An employee of Petrotrade who is in the business of transporting fuel is, in my view, one with an interest in the oil industry.”

The Disciplinary Authority makes an analysis of what Appellant stated in evidence and the analysis of such evidence is found at page 196 of the record:

“The Employee conceded that, so far as he was concerned, it contained many mistakes to the point of being a false document. Exhibit 18 was prepared on 24 March 2013. It shows that Edith Chogugudza, Venue Rukanda, Tanaka Sikwika (Employee) and Brenda Sikwila all of 1451 Mukwa Drive, Westgate were appointed as Directors of Bretas on 13 November 2011. But the same CR 14 shows that Tanaka and Brenda Sikwila resigned on the same date, 13 November 2011. As I have just said, the Employee was constrained to state that his wife had made several errors in completing the CR14 and that the information therein is not correct. On 4 April 2013 the Employee in his capacity as MD of Bretas applied to change ownership of a fuel tanker, registration number ABB 1252 (Exhibit 14), into Bretas; bame, It was a new acquisition of Bretas, paving been bought on 19 March 2013 for USD 8000-00, see Exb=hibit 12. The tanker was registered on or about 19 April 2013. Asked as to what his interest was in the company as at that date, the Employee said that he had not been paid the full purchase price for the business when the registration process commenced and that he was only paid the full purchase price on 10April 2013.”

A reading of the findings by the Disciplinary Authority shows the inconsistencies in Appellant’s evidence. He could not have resigned from the company and still proceed to make purchases on behalf of the company. The evidence also shows that Appellant as late as April 2013, was purchasing a fuel tanker. This tallies with the findings of the Disciplinary Authority. Furthermore, the finding that it cannot be correct to state that one engaged in transport business in not in the fuel trade was correct. To assert otherwise would be to state an illogical position. It is my view that the Appeals Committee was correct in upholding the decision of the Disciplinary in this regard.

The third ground of appeal is problematic. It avers that the Appeals Committee erred in upholding the decision of the Disciplinary Authority when the latter had placed onus on the Appellant which was inconsistent with the provisions of the law. The ground of appeal does not specify the particular circumstances where the Disciplinary Authority placed such onus on the Appellant. It is trite that a ground of appeal has to be precise and concise. The following was held to be position by GARWE JA (as he then was) in Dr Nobert Kunonga v The Church of the Province of Central Africa SC25/17 at page 15 of the cyclostyled judgment:

"...that there are two distinct requirements, both of which have to be satisfied, for a proper notice of appeal disclosing a valid ground of appeal. 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 (i.e. it must indicate why each finding of fact or ruling of law that is to be criticized as wrong is said to be wrong.) Fopr 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."

It has also been held that a ground of appeal is bad is it is widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the tribunal a quo or if that ground of appeal specifies the findings or fact or rulings of law appealed against so vaguely as to be no value either to the Court or the respondent or if fails to specify clearly and in unambiguous terms exactly what the case the respondent must be prepared to meet. (See Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division)). In casu, Appellant has simply averred that the Disciplinary Authority imposed the onus of proof on the Appellant without specifying the details of such occurrence. A reading of the record and the determination shows that the Respondent produced a bundle of documents and called a witness to testify. The record also shows that in answer to the allegations preferred against him, Appellant produced documents which were taken into account during the hearing. CORBETT JA explained the legal position as regards the onus of proof in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 548 as follows:

“Ass pointed out by DAVIS AJA in Pillay v Krishna 1946 AD 946 at 952-3, the word onus has often been used to denote, inter alia, two distinct concepts: (i) the duty which is cast on the particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed on his claim or defence, as the case may be; and (ii) the duty cast upon a litigant to adduce evidence in order to combat a prima facie case made by his opponent. Only the first of these concepts represents the onus in its true and original sense. In Brand v Minister of Justice 1959 (4) SA 712 (A) at 715 OGILVIE THOMPSON JA called it ‘the overall onus’. In this sense the onus can never shift from the party upon whom it originally rested. The second concept may be termed, in order to avoid confusion, the burden of adducing evidence in rebuttal. This may shift, or be transferred in the course of the case, depending upon the measure of proof furnished by the one party or the other.”
 The above precedent clearly explains the legal position. The onus does not shift but the ‘evidentiary onus’ may shift depending on the circumstances. I have already lamented on lack of particularity in the ground of appeal. It is not known in which circumstances, the Disciplinary Authority ‘shifted’ the onus. It is not evident upon reading the record of proceedings. The ground of appeal is meritless.

The fourth ground of appeal falls into the same pitfall as the third ground. In the **Kunonga Case (supra)**, reference was made to such grounds of appeal. It was stated as follows at page 12:

“In **Hendricks v Wilcox** 1962 (1) CPD 304, the appellant had filed a notice of appeal reading as follows:

‘Be pleased to take notice that an appeal is hereby noted against the judgment of the absolution from the instance granted by the above honorable court to the defendant… for the reason that the judgment was against the weight of the evidence.’

The court ordered that the appeal be struck off the roll for failure to comply with the Rules. In striking out the appeal, the court noted:-

‘..it is clear that a notice of appeal which sets out as a ground of appeal merely that the judgment is against the weight of the evidence is, generally speaking, bad.. The magistrate made a number of findings of fact on the evidence and then made a further finding that neither party had been negligent. It is impossible to deduce from the notice of appeal which of these findings is being challenged.

…I have come to the conclusion that the notice of appeal is bad. There is abundant authority to the effect that such a notice cannot be amended..’”

I can only give very few examples. The Disciplinary Authority made findings that there appeared to be bad blood between Appellant and other Board Members, that there was a meeting between the Appellant and the Board Chairman where Appellant was told not to record the conversation, but he went on to do so. These were findings in favour of the Appellant. The ground of appeal, however, does not point to those findings depicting ‘the existence of uncontroverted evidence which exonerated’ him. It is a bad ground of appeal and the Court will not proceed to deal with it. It is accordingly struck off.

In the result, the Court is of the firm view that the appeal is devoid of merit and ought to be dismissed.

The following order is appropriate.

1. The appeal, being devoid of merit, is hereby dismissed.
2. Appellant to meet Respondent’s costs.


Mutandiro, Chitsanga & Chitima- Appellant's legal practitioners.

Rubaya & Chatambudza Legal Practitioners- Respondent's legal practitioners.
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