Tendai Mapanda Huni v Schweppes Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/498/14
HARARE ON 15TH MAY, 2014
CASE NO. LC/H/264/11
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/498/14

HARARE ON 15TH MAY, 2014			                         CASE NO. LC/H/264/11

AND 1ST AUGUST, 2014

In the matter between

TENDAI MAPANDA HUNI			–	APPELLANT

And

SCHWEPPES ZIMBABWE LIMITED		-	RESPONDENT

Before The Honourable E. Makamure J.

For Appellant    :	Mrs L. Chiperesa (Legal Practitioner)

For Respondent :	Mrs R.T.L. Matsika (Legal Practitioner)

MAKAMURE J,

The appellant was dismissed from the respondent’s employment following disciplinary proceedings for theft.  This was a breach of paragraph 5.3.11 of the applicable Code. His internal appeals failed. Aggrieved by the dismissal, the appellant appeals to this Court on the following grounds:

“1. 	The appellant was not given sufficient time to prepare for the hearing. She was served with the Notification to attend a Hearing on the 4th March 2011 (Friday) for Monday 7th March 2011 at 0900 hrs. Effectively, our client was given less than twenty four hours to prepare for the hearing as the notice was only served on her in the afternoon.

2.	Our client was not served with the documents that were to be used as evidence prior to the hearing. She saw copies of the same only during the hearing.

3.	In terms of S 8(5) (b) (ii) of the Schweppes Employment Code of Conduct the appellant was not asked to submit a written defence statement to the allegations within two working days of receipt of the disciplinary hearing documents.

4.	The Second Appeals Committee erred in upholding the first appeals committee’s decision without actually addressing the issues raised in the supplementary grounds for appeal.

5.	The evidence that complainant used falls far short to secure a conviction of the accused. In any case the authenticity of the call records allegedly from Econet was never established. Even the original records from Econet were not availed to the appellant.

6.	The second appeals Committee erred in finding as a fact that appellant called a security guard one Mbiri when in actual fact she never did. She does not even know Mbiri’s cellphone number. Besides a call between two people does not establish any connivance to steal.

7.	The second Appeals Committee also erred in finding as a fact that the appellant connived with Ruzvidzo the folk lift driver to steal 608 cases of Mazowe. Ruzvidzo is no longer a suspect as he was acquitted from the onset and the employer appealed against his acquittal and the appeal was dismissed. The appellant could not possibly have connived with an innocent man.

8.	The Second Appeals Committee wrongly relied on an anonymous call to uphold the appellant’s conviction and not on established facts. The basis upon which the appellant was charged is wrong.

9.	The Second Appeals Committee also misdirected itself in finding that there were apparent links and communication with other suspects. The other “suspects” were acquitted, namely Ruzvidzo and Ruzengwe was never charged with theft but negligence. So clearly there could not   have been any connivance to steal with Ruzengwe. As for Mbiri, the appellant never communicated with him and no evidence and/or finding was led/made to him by the Disciplinary Committee to establish links with Mbiri, the security guard.

10.	The Second Appeals Committee erred in that it also misconstrued the appellant’s mitigation before the Disciplinary Committee to be an admission that she had committed the offence.

11.	The Second Appeals Committee erred in relying on the evidence of the call record allegedly from Econet when infact its authenticity was not established. The appellant was never given an opportunity to see and verify the call records from Econet. The same were not event circulated to the Disciplinary Committee let alone the Appeals Committee on the basis that no one would see anything as the records were big. So they had to rely only on the summary of the records made by the security personnel.

The Respondent in its Heads of Argument raised a point in limine that grounds of appeal 1 to 3 raise procedural issues. They should therefore be raised by way of review and not on appeal. I  agree and the Rules are clear on this issue (see Rules 15 and 16). Those grounds are not properly before the Court. They will therefore not be  considered. Now I turn to the other grounds of appeal and evidence at hand. The Respondent in paragraph 18 of its Notice of Response stated;

“It is denied that the Committee relied on an anonymous call. It relied on evidence from Econet as well as inconsistencies in the Appellant’s evidence.”

What I understand by that paragraph in the Notice of Response, is that the existence, or the allegation, of an anonymous call being the basis of charging the appellant is not relevant. The question of the anonymous call can therefore not be used against the appellant.

One has to turn to the sufficiency of evidence which proves the charge against that the appellant was facing. The evidence relied upon was from a company called Econet (Econet). Certain documents or “print outs” supposedly emanating from Econet were produced. There was no one from Econet to confirm the authenticity of the documents. As a general rule, a party producing a document must lead evidence to prove its authenticity. This means that the person who wrote it has to identity that document (see South African Law of Evidence 3rd Edition by Hoffman & Zeffert at page 308). The respondent called one of its own personnel to confirm that what was asserted to have emanated from Econet was indeed therefrom.  That was inappropriate. The author of a document is the only person who can confirm its authenticity. There was not even an affidavit confirming that the documents relied upon indeed emanated from Econet. I therefore agree with the appellant that there was insufficient evidence against her. (See Nyahondo vs. Hokonya & Ors. 1997 (2) ZLR 457 (SC).  The fact that in civil or labour matters the proof is on a balance of probabilities does not mean that the Court must do away with the basic checks and balances regarding the sufficiency of evidence.

The appellant is said to have “connived” with others. There does not appear to be any proof that the appellant was working in common purpose with the persons she communicated with after working hours. While it may have been suspicious for her to communicate with the persons in question, there ought to have been more evidence that such communication was in pursuance of the offence alleged.

The appellant is said to have admitted to the offence in her mitigation. Mitigation by its very nature is conciliatory. A person should always be asked to make some “plea” for mercy with respect to penalty after a finding has been made against them. Thus if such pleas were taken to be admissions of guilt as a matter of practice, the object of mitigation would be lost. It is not unusual in some cases to find that during mitigation a person actually makes an unequivocal admission of the commission of the offence and then goes on to explain what caused them to misconduct themselves. In the present case the appellant stated (page 36):

“I would like to apologise to my boss that my name came up, which is very unfortunate. It was not my intention to jeopardize or cause any loss to the company. I only communicated with Ruzvidzo during the time of burning.”

I am of the view that the above does not constitute an admission but an explanation regarding where she found herself in. I therefore am in agreement with the submission presented on behalf of the appellant that she was convicted on the basis of evidence which was not established.

It is in view of the foregoing that I find that there is merit in the appeal.

In the result the appeal succeeds.

Accordingly it is ordered that the appeal be and is hereby granted.

The respondent be and is hereby ordered to reinstate the appellant with no loss of salary or benefits with effect from the date of dismissal. In the event that reinstatement is no longer possible, the  respondent be and is hereby ordered to award the a  ppellant the appropriate damages as agreed by the parties. Should parties fail to agree, either party may approach the Court for quantification.

Mkuhlani Chiperesa, Appellant’s legal practitioners

Wintertons, Respondent’s legal practitioners