Thomas Mharira and 7 Others v Zimbabwe Consolidated Diamond Company Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE MUTARE, 14, 15, 16 MARCH, 2021
JUDGEMENT NO. LC/H/272/25
CASE NOS. LC/H/20/19
LC/H/21/19
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IN THE LABOUR COURT OF ZIMBABWE MUTARE, 14, 15, 16 MARCH, 2021

AND 30th JULY, 2025

In the matter between: -

JUDGEMENT NO.	LC/H/272/25 CASE NOS.	LC/H/20/19

LC/H/21/19 LC/H/22/19 LC/H/23/19 LC/H/24/19 LC/H/25/19 LC/H/26/19 LC/H/27/19 LC/H/28/19

THOMAS MHARIRA	APPELLANT

VS.

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

AND

TATENDA MAMUNZI	APPELLANT

VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

AND

LINCOLN MAZANGAZA	APPELLANT VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

PETER SIMBINI	APPELLANT

VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

BRILLIANT CHINHONDO	APPELANT

VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY	RESPONDENT LIMITED

AND

SHINGIRAYI JERAHUNI	APPELLANT VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

AND

GOLIATH TIGONE	APPELLANT

VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

AND

PHINEAS CHARIDZA	APPELLANT

VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

AND

JOHN MAKANDE	APPELLANT

VS

ZIMBABWE CONSOLIDATED DIAMOND COMPANY

LIMITED	RESPONDENT

Before the Honourable B.T Chivizhe: Judge

For Appellants:	Mr J. Chaka (Legal Practitioner)

For Respondent:		Mr C. Muchecheche (Legal Practitioner) with Ms R.R. Mutindindi (Legal Practitioner)

CHIVIZHE, J:

The delay in the handing down of the judgment is sincerely regretted.

The above matters were placed before myself and other judges as individual appeals against decisions made by the Respondent’s Appeals Committee to dismiss the Appellants from employment following their convictions for acts of misconduct. The appeals are all premised on Section 92D of the Labour Act [Cap 28:01]. The matters were all set down for hearing before me during the Mutare Circuit Court on the dates as reflected above. Although submissions were received separately for each matter I have written this one consolidated judgment, in view of the similarity of the facts, the issues for determination in each matter. The parties were also represented by the same legal practitioners. My thanks go to the legal practitioners for the extensive but valuable submissions made.

BACKGROUND FACTS

The Appellants were all employed by the Respondent as security guards. This date of engagement is the same i.e. 21 June 2017. They were all suspended and later arraigned before the Respondent’s Disciplinary Committee on diverse dates to answer to allegations that they had violated operational security procedures resulting in the theft of diamonds.

The specific charges levelled were;

Count 1 – Contravention of Part B paragraph 4(h) of the Statutory Instrument 165 of 1992 – gross incompetency or inefficiency in the performance of duty.

Count – Contravention of Part B paragraph 4(d) of the same instrument –

theft or fraud.

The allegations were that Appellants in their capacity as security guards had on diverse occasion connived with hand pickers on duty and the CCTV controller to open the glove box to steal diamonds. On each of the specific occasions the CCTV had been switched off for several minutes ranging from 3 to 5 minutes resulting in the alleged theft of the diamonds. The

Respondent was alleging connivance between the Appellants as security guards with the pickers and the CCTV controller. Evidence was led during the hearings including video evidence of the incident for the particular date in relation to when each Appellant was on duty. The Respondent’s position was that after conniving with the pickers and the CCTV operator the Appellants would then declare a wrong figure of the diamonds picked on the date. For each of the Appellants they had failed to explain how the diamonds were stolen during the blackout. The Appellants were each found guilty on all the charges by the Disciplinary Committee set to hear their individual matters. For the six Appellants i.e. excluding Phineas Charidza and John Makande they noted a joint appeal to the Respondent’s Appeals Authority on 17 January 2018. In noting their appeal they were contending; firstly, that the disciplinary was heard out of time contrary to the time periods as outlined in the Code of Conduct; secondly, they were objecting to the multiplicity of charges levelled against them during the disciplinary hearing, thirdly; they challenged that the Respondent had not led oral evidence to prove theft of diamond stones; fourthly, that the offences in any case were not serious to justify dismissal; fifthly and lastly, that there was no case of fraud established. In the case of the Appellant Phineas Charidza he appeared before the Disciplinary Committee on 18 December 2019. In his ground of appeal he alleged firstly a misdirection by the Disciplinary Committee in that they found him guilty of acts of misconduct when there was no evidence to support or substantiate the verdict; secondly, there was an error by the Disciplinary Committee in that they relied on inconclusive, inadequate, unsubstantiated, unreliable an incredible circumstantial evidence; thirdly and lastly that assuming that the guilty verdict was proper then the penalty of dismissal

imposed was irrational in the circumstances

DETERMINATION BY THE APPEALS AUTHORITY

The Respondent’s Appeals Authority on the 23rd of January 2018 wrote individually to the Appellants advising them of the dismissal of their appeals against the decision of the Disciplinary Committee handed down on 17th of January 2018 to terminate their employment. The Appeals Committee essentially upheld the decision of the Disciplinary Committee to terminate their contracts of employment. The Appellants were advised of their right to appeal against the verdict of the Appeals authority as provided under the Labour Relations Act, 1985. In the case of Phineas Charidza, the Appeals Authority determination was handed down on 23rd January, 2019. The specific findings as made by the Appeals authority were that the time taken to conduct hearings and the time of discovery of the offence was in line with the provisions of

the law. He also found that the appellants were properly convicted on the charge of incompetence in that they failed in their duty to monitor and report anomalies in the glove box on the days they were individually on duty. The Appeals Authority noted that upon his review of the video footage relating to each case, there were what he termed unjustified behaviours on the part of the glove box team as a whole including the appellants as security details. He concluded that the action of the team including the appellants as security details was designed to facilitate theft of diamonds. The appellants were guilty of commissions as well as omissions. He found that there were variations in the number of stones seen before switch off and after switch on. The Appellants had recorded understated figures of the stones which amounted to fraudulent conduct. The prejudice suffered by the employer as a result of the actions of each of the Appellant was in the form of the difference between the stones picked and slotted on the specific days Appellant committed acts of misconduct. The actual figures given showed that John Makande it was 25 stones, Shingirayi Jerahuni 45 stones, Goliath Tigoni 14 stones , Lincoln Muzangaza 53 stones, Peter Simbini 69, Brilliant Chinhondo 29, Thomas Murira 24, Phineas Charidza 68 stones. The Appellants were therefore properly convicted of theft/fraud. On this basis the appeals Authority dismissed their individual appeals. Their individual appeals having been dismissed by the Respondent’s Appeals Authority; the Appellants individually noted their appeals before this court against the determinations made by the Appeals Authority. The appeals were noted largely against both conviction and penalty.

GROUNDS OF APPEAL

I have set out below the grounds of appeal as filed by the Appellant Goliath Tigoni. These grounds are however replicated in the other Appellants’ papers. There are a few deviations here and there in respect of some of the Appellants. These additional grounds will be addressed after the common grounds that were raised by the majority of the Appellants are dealt with. The grounds of appeal are outlined as follows;

The date of the alleged offence occurrence is well out of time that is about 20 days later yet the Code of Conduct provides time limits to avoid such cases.

The charges levelled against me are inconsistent with the narration given by the complainant as the reason for charging me hence the penalty is uncalled for under the circumstances. There is no evidence that has been proffered by the complainant showing how I connived with the pickers as alleged. This

allegation was not and parcel of the deliberations in the hearing and hence even on a balance of probability such an assertion is wild.

The evidence being used by the company are CCTV camera footages which do not do any service in proving that I connived with the pickers to steal diamonds therefore the hearing committee erred by finding me guilty of an offence that never occurred.

I am alleged to have violated standing instructions, procedures, practices, rules and regulations which if I had committed such do not attract a penalty of dismissal under the Code of Conduct.

If the allegation was that I had violated standing instructions, the Code of Conduct clearly provides for such violation and there was no need to multiply a single charge to more charges.

The hearing and Designated Authority failed to consider that I just had 1 year and 6 months with the organisation and still had a lot to learn within the company. This was my first encounter with a hearing process. If I was wrong they should have given me another chance since it is provided for by the Code of Conduct and the Labour Act as a requirement.

It is also important to note that a notice of intention to file supplementary grounds of appeal was filed in some of the matters before the hearings in this court. The two supplementary grounds of appeal were filed in the case of Tatenda Mamunzi case reference LC/H/21/19 and in Brilliant Chinhondo case reference LC/H/24/19. The grounds were outlined as follows:

The Appeal’s Committee grossly erred in upholding the decision of the Disciplinary Committee of finding the Appellant guilty of both charges without having proved the essential elements of the offences.

The Appeal’s Committee grossly erred in upholding the decision of the Disciplinary Committee which found the Appellant guilt of both charges when there was no evidence led to support and justify that the offence was ever committed.

In relief all the Appellants were praying that their appeals be allowed with costs on a higher scale.

PROCEDURAL ISSUES

The Respondent in opposing the appeals had raised preliminary points which however were not pursued on the dates of hearing. The appellants had also raised the point that there were no Notices of Opposition filed before the court. The Respondent having indicated its intention to apply for condonation on the date of hearing, Counsel duly made an oral application in the case of Goliath Tigoni. The application was opposed. The court granted the application. On the basis of the court’s ruling in Goliath Tigoni case the rest of the Appellants abandoned the same point in limine. The court shall proceed to address the main issues as raised by the Appellants, the submissions as made by both parties and the findings in respect of each.

ANALYSIS

Whether or not the charges were levelled outside the prescribed time under the Code of Conduct.

It is apparent from a perusal of all the records pertaining to the appeals under reference LC/H/20/19 through to LC/H/28/19, that most of the Appellants raised the issue that the charges were levelled outside the period prescribed by the relevant Code of Conduct, being Statutory Instrument 165 of 1992. The various Appellant alleged that charges were levelled (80 days late for John Makande, 30 days late for Shingirayi Jerahuni, 49 days late for Tatenda Mamunzi, 61 days late for Phineas Charidza, etc.) Their allegation was that the employer should have raised a complaint within 48 hours of the alleged act of misconduct according to the provisions in the relevant Code of Conduct.

The Respondent position in regards this point was that the point had no merit. The Respondent presented various arguments ranging from the submission that the point is a procedural hence it should have been taken in an application for review rather than in an appeal. Secondly, that there is no provision under the relevant Code of Conduct requiring the employer to file charges within a stipulated period. A corollary argument was also tendered that in any event none of the matters showed that charges were levelled outside the two-year period as prescribed by the Labour Act (Cap 28:01).

Before the Appeals Authority that Appellants position was that the Code of Conduct

S.I. 165 of 1992 in Part Section 2 provided that the complaint form should be raised within 48 hours of the discovery of the alleged offence and a trial should be held within three days of

charging him. The Appeals Officer in his determination of the appeals in respect of the eight Appellants ( that is excluding Phineas Charidza) found that there was no specific provision in the Code that stipulated that disciplinary hearings must be conducted within 48 hours of commission of the alleged act of misconduct. The Appeal Officer view was that that the now Appellants had clearly misinterpreted the provision. On this basis he dismissed the point. The court agrees entirely. The ground of appeal clearly cannot succeed. It is also the position at law in any event under Section 94 of the Labour Act (Cap 28:01) that the general statutory limit for raising a complaint/referring a dispute or unfair labour practice is two years from the date the dispute or unfair labour practice first occurred. It is apparent that in none of the matters the period of delay did not exceed two years.

It is further apparent as contended by the Respondent that, even if it can be argued that the charges were brought out of time as prescribed under the Code of Conduct the Appellant have not alleged any prejudice suffered as a result of the slight delays in the convening of disciplinary hearings. It is after all the position at law that for any procedural irregularity to vitiate disciplinary proceedings a litigant must be able to prove/establish prejudice suffered. See Nyahuma vs Barclays Bank (Pvt) Ltd 2005 (2) ZLR 435 (S). The ground of appeal as taken in any of the appeals lacks merit.

Whether or not the charges levelled were different from Claimants narration of events.

Some of the Appellants also raised as a ground of appeal that the charges levelled by the employer was different from the narration by the complainant in each of their cases. The ground was cast differently by each of the Appellants. For an example one alleged that the charges were not related to his duties as a security guard (Thomas Marira). Other Appellants have argued that the complainant in their disciplinary cases had mentioned that they had through their conduct violated standing procedures as per the Code of Conduct under Part B

(3) (a)(ii) of the Code. Their view was that based on that narrative they ought not to have been charges with Gross incompetence and inefficiency, Theft/fraud. They should have been charged with failure to comply with standard procedures which is a lesser charge under the relevant Code of Conduct. There are others who have alleged that the charges were also baseless as they relate to duties other than for security operatives, such as the duty to operate the CCTV (Phineas Charidza).

The Respondent general position is that in respect of the propriety of the charges levelled against the appellants it did, as the employer, reserve the right to select the appropriate charges to level against each of the Appellants. It was common cause that the Appellants were all employed as security guards. Their role was to monitor pickers in the glove box through physical monitoring to ensure that the other employees did not engage in conduct that was outside the standard operating procedures. They therefore had a duty to report any anomalies to the employer. As the employer it had formulated the view that the Appellants had failed to follow the standard operating procedures and as a result there was theft of diamonds under their watch. After reviewing the CCTV footage and the investigative reports the employer also came to the conclusion that the Appellants had each connived with the other employees forming the glove box team such as the pickers, CCTV Controller etc in order to steal. This was the basis of the Respondent levelling, the charges of breach of Part B (h) of S.I. 163 of 1992 i.e. gross incompetence and inefficiency in the performance of work and breach of 4(d) Theft or Fraud.

It is indeed the correct position of law that the issue of an appropriate charge remains the prerogative of the employer. The Respondent aptly referred to Nyarumbu vs Sandvik SC 31/13. Although some of the records of proceedings indeed indicate that the complainant in laying out the background to the charges made allegations of the Appellant breaching standard operating procedure, Appellants’ failure to execute duties as enshrined in the contract of employment etc, (see Thomas Mharira LC/H/20/19), it however remained within the employer’s prerogative as to which charge to level, given the factual circumstances, the gravity of the employee’s actions and the loss/prejudice as suffered by the employer. The employer in all these cases selected to charge the Appellants with the two charges referred to, taking into account the factual circumstances, that there was theft of diamonds, the theft had been facilitated through a perceived failure by each of the Appellants to execute their specific duty to physically monitor operations in the glove box compartment, the diamonds stolen were not recovered by the employer. To the argument by some of the appellants that they were still able to carry out their duties on the specific days that is a flimsy argument as the records clearly show that theft/thefts did occur under their individual watch. They were properly charged. This ground of appeal as taken in any of the appeals clearly has no merit.

Whether or not the sufficient evidence was led to found conviction

Through their individual appeals against the Appeals Officer’s determination, the Appellants all raised in one way or the other issues pertaining to the sufficiency of the evidence led to sustain the two charges levelled. They also attacked the nature of the primary evidence led i.e. the CCTV footage and the investigation report. Peter Simbini alleged that the CCTV and Investigation report were not valid as they were not compiled by the employer, the test for connivance had also not followed by the Appeal’s Officer. Tatenda Mamunzi alleged that the evidence was unreliable as it was never tested, further the CCTV evidence did not go as far as establishing proof of opening of glove box through his actions. Phineas Charidza challenged the Appeals Authority on the basis that no evidence was led to establish his duties were not done on the particular day, the CCTV footage evidence did not prove failure to do duties it was also unreliable. He contended that operation of CCTV camera was independent of his duties as security guard i.e. a PSS operator. He also challenged the aspect of connivance between him and other employees. Thomas Marira also raised the aspect of connivance. He also referred to the evidence of CCTV footage being insufficient to establish that the glove box was broken. John Makande raised the issue that his duties did not include operating the CCTV although the charge referred to the alleged stoppage of the camera. He also alleged that the charges were improperly based on mere suspicions. Lastly he challenged the employer’s improper reliance on the CCTV footage evidence and the investigation report which he claims is not provided for under the relevant Code of Conduct. Shingirayi Jerahuni on his part alleged that the charges were improperly levelled against him as his duties were not violated in any way. He also raised the aspect of lack of evidence to prove connivance with the pickers. Just as Thomas Marira he raised the issue of his rights to a fair trial having been violated by the employer.

Through the Supplementary heads and in oral submisions the Appellants raised further arguments that the employer had improperly convicted them of theft or fraud and gross incompetency or inefficiency in the performance of their work without having satisfied the essential elements of each offence. It was also the Appellant’s argument that there was no evidence of connivance presented in order to warrant conviction. There was no evidence of who they specifically connived with, when, how and where; whether or not the glove or seal were broken/replaced; whether there were any reports of people caught with diamonds at the various check points; as to how the committee arrived at figures of diamonds stolen in each case etc. In raising these supplementary issues the Appellants indicated they were relying on the general principle that he who alleges must prove. Reference was made to Nyahondo vs Jokonya 1997 ZLR 457 at 457 D where the court held that;

“The general principle is that he who makes an affirmative assertion, whether plaintiff or respondent bears the onus of proving the facts so asserted.”

The Respondents position in respect of the issues as raised is that each of the Appellants was occupying a very crucial position as a Security Guard. The Respondent had raised charges against each on the basis that they had each failed to act as expected under their contracts of employment. The Respondent contended that it led crucial evidence in the form of CCTV footage evidence, investigation report against each of the appellant which evidence was not challenged. The Respondent formulated the view that the failure to report on anomalies in the glove box had amounted to incompetence as they were each expected to report on the issue of the stopping of the camera, the changes in the glove-box after switch on, the irregularities that had occurred in some of the cases. On the issue of connivance, the Respondent submission was that it had as an employer formulated the view that the failure to act on the part of the Appellants was co-ordinated with the actions of the other employers including the pickers, the securico details, CCTV operators in order for the employees to steal diamonds. The Respondent position in respect of all matters was that sufficient evidence was led was on a balance of probabilities. Reference was made to ZESA vs Dera 1998(1) ZLR 500(S) as having laid the principle that the standard of proof in labour matters, notwithstanding the fact that, the infraction in question is of a criminal nature, is on a balance of probabilities.

It is indeed a trite position that the degree of proof in labour matters is on a balance of probabilities. In the case of British American Tobacco Zimbabwe vs Chibaya SC 30/19 the court cited in the case of Minister of Pensions (1947)2 All FR 372, 374 wherein the following was said regarding proof on a balance of probabilities.

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such, that the tribunal can say ‘we think it more probable than not,’ the burden is discharged, but it the probabilities are equal it is not.”

It is also important to underline that this court sitting as an appeal court is generally discouraged from interference with the decision of a trial court as the trial court is better placed as the trier of fact to assess the credibility of the witnesses and the primary evidence brought before it. The lower court’s discretion is thus not lightly interfered with. The test for interference was laid in Barros and Another vs Chimpondah 1999 (1) ZLR (S0 at 62G – 63A where Gubbay CJ stated as follows:

“…..it is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course it must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant considerations then its determination should be reviewed and the appellate court, may exercise its own discretion in substitution provided always it has the material for so doing. In short, this court is not imbued with the same discretion as was enjoyed by the trial court.”

An analysis of the evidence in the records of proceedings shows that at the Appellant individual disciplinary hearings, the primary evidence relied upon by the employer was in the form of CCTV footage and investigation reports.

In Thomas Marira case the evidence led showed that he was on duty on 10 October, 2018 when the camera switched off at 1009 and switched back at 1014 hours. The first camera footage revealed that the position of the pickers never changed during the time of black out. The second camera however revealed that the position of diamond cup, sorting glove and twizza inside the Glove Box before and after the blackout had shifted. The footage also showed the seal had been broken. The employer formulated the view that the Glove Box had been tempered with. In its findings the Disciplinary Committee noted the Appellant had not reported the changes in the glove box. He had also, contrary to standard procedures, failed to report that he had gone out of Glove Box during the blackout. He also had not reported that the seal was broken. The employer in finding him guilty of both charges formulated the view that he had connived with other employees to facilitate stealing of diamonds such as the CCTV operators, securico details and the pickers. The structure of the disciplinary hearing in Thomas Marira is replicated in the other disciplinary hearing records for the rest of the Appellants.

In Tatenda Mamunzi case, the allegations were that on 22nd October 2018 he was deployed at Portal A Glove Box as PSS Operative. His role was to monitor pickers in the glove box through physical monitoring to ensure no theft of diamonds, to ensure no unauthorised tempering with the glove box or its contents, to ensure strict adherence to standing instructions, procedures, practices, rules and regulations. He also was supposed to report any suspicious activity within the glove box. Based on the CCTV footage evidence and investigation report it was noted that between 1417 and 1421 hours on 22 October 2018 there was a black out. He could not deny that there was a change in the lock position before and after the switch off. He denied that he had seen anything. He submitted that he did not know what had happened. The Disciplinary Committee found him guilty on the basis of his failure to report the anomalies in

the glove box on the day which anomalies were consistent with the other days when CCTV cameras were also switched off and on. The anomalies were that, the glove box was tempered with, the diamond cups were left unemptied facing upwards by pickers before switch off.. The Disciplinary Committee formulated the view that there was coordination between the glove box team that included the cctv operators, the securico details, the pickers and the Appellant because of the uniform pattern. Tatenda was found guilty of gross incompetence for failing to report the anomalies that included the tempering in the glove box. He was also alleged to have misrepresented facts to the Disciplinary Committee when he stated that the pickers had never made any movements from the time of switch off to switch on. He also could not explain why he did not inform the employer of the tempering with the seal. He was found guilty of both charges on a balance of probabilities.

In Lincoln Muzangaza case similar events took place. The CCTV camera switched off at 11:19 and switched back on 11:23. In answer to the question whether anything had happened during the switch off period he indicated nothing. The CCTV footage however showed that although the position of pickers, security guards and himself were the same after switch on, the seal however on the Glove Box had changed position during the black out. The position of diamond cup and sorting glove had shifted. When Lincoln asked indicated he did not see anything. He also did not know how the second seal had moved during the interval. He also did not deny failing to record that there had been an electricity cut-off as per standard operation procedure. He was found guilty on the basis of his failure to report the various anomalies in the glove-box. The Disciplinary Committee also found he had misrepresented that the pickers had never made any movements which was contrary to CCTV footage evidence.

In the case of Peter Simbini the record of proceedings showed that during the disciplinary hearing, the Respondent led evidence of CCTV footage and investigation report. The cameras had switched off and on between. The Appellant was unable to explain why and how the camera had switched off, he also could not explain why he had not reported movements in the glove box. It was also noted that upon submission of quantities of diamonds picked and those slotted there was a huge variance and he could not explain what had happened to the other diamonds. The Appellant was found guilty on the charges on the of his failure to report the anomalies the Disciplinary Committee found there was a deliberate violation of procedures, that he had acted in connivance with the other employees.

In the case of Brilliant Chinhondo it was alleged by the employer that on 30th August 2018 he was deployed at Portal A Glove Box as PSS Operative. Upon a review of CCTV footage the employer noted that on the day there was a switch off between 1551 and 1554 hours. The cameras picked that there had been tempering with glove box and diamonds stolen in the process. The Appellant, when questioned, could not explain the anomalies in the glove box such as the 3 diamond cups that had been left facing upwards with their contents instead of facing down, the position of diamond cups, twizzer and sorting glove had also altered. He was found guilty of gross incompetence on the basis of that standard procedures were violated when he failed to report. The Disciplinary Committee also found him guilty of theft/fraud.

In Jerahuni Shingirayi case the record showed employer allegation that on 11th of November, 2018 he was deployed to Portal A’ Box as PSS Operative. On that day the glove box had been tempered with and diamonds stolen in his presence with cameras switched off between 1109 hours-1112 hours. The Appellant upon questioning by Disciplinary Committee answered that nothing had happened during the switch off period. The camera footage however showed that the position of the diamond cups, the sorting glove, and twizza had shifted during the black out. He was found guilty on the basis of his failure to report the noted anomalies. The Disciplinary Committee also found that in his case he had lied that it was his first time to work in the glove box as another footage of a different day was viewed. He was found guilty on both charges.

In the case of Goliath Tigoni, the evidence in the record shows that he was alleged to have, on 20 November 2018 been deployed at Portal A Glove box there was a switch off between 0218 hours and 0222 hours. The camera footage indicated movement in the position of diamond cups, sorting glove, twizza upon switch on. The Appellant, when questioned, could not explain the unjustified movement in the glove-box. He could not explain why these objects had moved. When further questioned if he had anything to say of the charges, he indicated nothing.

The Appellant was found guilty on the basis that before switch off he had been standing in the Glove box, he had however failed to explain why upon switch on there had been movement in the position of diamond cup, twizza and sorting glove yet he had said no one moved during the switch off. He was also said to misrepresented facts that the pickers never moved during the period which was contrary to the CCTV footage. The Disciplinary Committee came to a conclusion that there had been a co-ordinated approach between the

CCTV operators, security guard and the Appellant to switch off cameras and steal diamonds. He was found guilty of both charges.

In Phinias Charidza case, the allegations were that on 13 October 1988 he was deployed at Portal A Glove Box as PSS Operator. There had been a switch off between 1414 hours and 1443 hours. When questioned as to what had happened during the switch off the Appellant indicated nothing happened. The pickers were seated in the same position as before the switch off. Evidence led by the employer however indicated that anomalies such as the diamond cups that were facing upwards with their contents, the position of the same cups, twizzer and sorting glove inside the glove box having changed positions after switch off. It was clear in cross- examination that he had breached procedures by failing to record an anomaly that a picker had inserted his hand in the glove box to grab a cup containing diamonds before the glove had been checked. He had submitted in his defence that radio had a battery problem. The Disciplinary Committee found that he made many inconsistent statements about the reason for the pickers moving away from the Glove box. He also had clearly failed to report the issue of the non- functioning battery as well as the picker’s violation of procedures. They formulated the view that he was lying. He had also mispresented the facts in regards the reason for the picker’s violation of procedure. The Appellant was found guilty of the charges.

The allegations against John Makande were that, on 30 September 2018 he was deployed at Portal A Glove Box at the Operator in charge of Glove box. There was switch off between 0231hours and 0234 hours. The camera footage outside the glove box showed pickers before switch off seated on GB chairs as if preparing for weighing. When the camera switched on the position remained the same. Inside Glove box however there were anomalies such as the diamond cup left facing upwards with its contents instead of facing down. The position of diamond cups, twizza and saving glove had also changed during the switch off. When Appellant was asked he denied seeing any procedural violations. He explained the switch off as having been to allow someone to check if had arrived in the feeder bins, he however had not recorded this. The Disciplinary Committee found him guilty on the basis that he failed to record the unjustified movements in the glove-box when his role was to monitor the same glove-box. By saying he did not see anything the Disciplinary Committee concluded that he had failed to deliver on his mandate. He was found guilty on both charges. The Disciplinary Committee also found there was a co-ordinated approach between the CCTV operators, pickers, security guard and the Appellant to switch off cameras and steal diamonds.

Having considered the evidence as led in their individual disciplinary hearings the court finds that the Appellants were properly convicted on the levelled charges. It was clear on the basis of the largely uncontroverted evidence the appellants were guilty on the basis of their actions of commission and omission as found by the appeals authority. Through the video footages shown in each hearing the respondent managed to establish repeated, unjustified patterns of behaviour by the glove team including the appellants as the security details on duty. The unjustified patterns preceded a black out for a period of between 3 to 5 minutes during which time diamond stones were then stolen. All the Appellants at their hearings did not challenge the evidence. They did not dispute that their role was to safeguard and protect the employer’s property. They were supposed to prevent theft of diamond stones. They however could not dispute that they had failed to discharge their duties on the specific dates when there was a switch off/on of cctv cameras. They failed to report the switch off of cctv and the anomalies in the glove box that presented after switch on. They also failed to explain the variances in the diamond stones noted before and after switch on. The Disciplinary Committee in each of the Appellant’s cases made findings of fact that they were all guilty of the two charges levelled. In the court’s finding those findings were properly arrived at, they were so reasonable such that this court cannot interfere with them.

The Appeals Authority on his part was seized with determining whether the Disciplinary Committee was correct in finding all the Appellants guilty and in imposing the dismissal penalty. The Appeals Authority after considering the records of proceedings as well as reviewing the evidence led in the form of cctv footage and investigation reports found that the Appellants were all properly convicted on the charges. He went a step further to actually find the prejudice/loss as suffered by the Respondent in each case, this was in the form of diamond stones recorded as stolen by virtue of the variance in the figures between the picked stones and the slotted stones. The Appellants have challenged this procedure adopted by the Appeals Authority as unjustified. Although the point was taken by Counsel it was however not pursued any further. It is sufficient however to state that the powers of an Appeals Authority whether to hear an appeal in the wide sense or in the narrow sense is found in the relevant Code of Conduct. (See Muyaka vs Bak Logistics (Pvt0 Ltd SC 39 of 2017).The court was not further addressed on this aspect by Counsel for Appellants. In my determination therefore, no contrary evidence having been presented, the court finds that the Appeals Authority was correct in the procedure adopted to hear the appeal in a wide sense. Having received further evidence

on the actual loss/prejudice suffered by the Respondent in each of the cases he therefore correctly confirmed the conviction and penalty of dismissal in respect of each appellant.

The appellants, notwithstanding, raised several issues through the supplementary grounds of appeal. Some of those issues are in the court’s view not capable of determination before this court. It is important to outline that most of the issues are being raised for the first time before this court they were not raised before the Appeals authority. This includes issues as to whether, whether or not the glove box or the seal were actually broken after switch on, how long it would take to open seal/glove box in order to retrieve the stones in a theft, whether the cctv evidence was itself sufficient to prove opening of the glove box, whether there had been evidence led to show if diamond stones had been found at various check points, why the Respondent did not include other officials such as RBZ, ZRP officers who were present on the specific dates when Appellant committed acts of misconduct, whether it is feasible for theft to occur in the space of 3 to 5 minutes as contended by the Respondent, whether it is possible to replace broken seal within the same time. Whilst it is indeed correct position of law that questions of law can be raised at any stage of the proceedings even as late as at the appeal stage (see Muchakata vs Netherburn 1996(1) ZLR 153(S)) the issues being raised in this case are issues which clearly would have been properly taken before the trial court and not this court sitting as an appeal court considering the advantage the trial court has as elucidated in Barros vs Chimpondah referred to supra. Supplementary grounds of appeal raising questions of law should not in my considered view be raised as a matter of fashion. They should be raised only where those questions are capable of being determined by an appeal court based on the material available to it.

With specific regard to the issue as to whether the elements of the charge of theft were met, the general position of law was outlined in Zesa vs dera referred to supra, that the standard of proof in labour matters is on a balance of probabilities. The issue is whether in this case Respondent discharged the burden on it to prove the charges and not necessarily each element of the charge. The court’s finding is that the charge of gross incompetence was properly proved on a balance of probabilities. The respondent at the disciplinary hearing led evidence which clearly showed that the appellants roles were to physically monitor the diamonds pickers in the glove box and ensure zero pilferage of the diamond stone, to ensure no unauthorised tempering with the glove box or its contents, to ensure strict adherence to standing instructions procedures. There were also supposed to report any suspicious activities.

It was established in each appellant’s case that contrary to the standard operating procedures, the appellants had failed to explain why the cameras had switched off and how they had been switched off, they also failed to act as expected under their contract by reporting anomalies in the glove box when the cameras were switched on. In some of the cases the appellant’s misrepresented and lied to the disciplinary committee on the reason why they had been a switch off and a switch on, in some of the cases there was clear deviation of procedures, leading the disciplinary committee to find that the omissions and commissions were designed to facilitate theft of diamonds. It is on this basis the appellants were properly found guilty of incompetence or inefficiency in the performance of their work. In respect to theft /fraud charge the evidence led showed that during the blackout diamond stones were stolen. The respondent was able to establish that there were variances in the diamond stones as seen on camera before and after the blackout. Each of the appellants when asked could not explain the variances. They also presented understated figures of diamonds. It was respondent’s position that the diamonds stolen under the Appellants watch were not recovered. It is on this basis the court finds that the Appeals Authority did not err and misdirect himself in upholding the convictions on the charges.

Whether the dismissal penalty was properly imposed in each of the appellants cases

The Appellants have individually challenged the dismissal penalties imposed upon each of them. The Appellants have contended that the dismissal penalty was harsh in light of the factual circumstances surrounding their alleged failure to act as per standards of several of the Appellants have also submitted that in view of their employment being for it years there were not given time to reform and improve on their competency. Some of them are alleging as they were first offenders, they ought to have been given lighter sentences (Peter Simbini, Lincoln Muzengaza, Phineas Charidza, John Makande).

The Respondent position in counter was that their individual acts of misconduct were clearly established/proven, evidence had established that in failing to account the anomalies which were identified by the Respondent through CCTV camera footage clearly established their negligence as well as their gross incompetence. The Respondent also submitted that evidence had been led to show that each Appellant had presented understated figures of diamond stones slotted justifying their conviction on charges of theft as the diamond stones missing were never found. The Respondent contended that the Appellant actions led to a

serious breach of trust between them and the employer. Their acts of misconducts therefore went to the root of contract justifying the dismissal penalty.

The Respondent also relied on the general principle that the nature of punishment to be affected against the employee who has committed an act of misconduct lies in the discretion of the employer. The Respondent referred to authorities e.g. Circle Cement Pvt Ltd vs Chipo Nyawashe SC 560-203: Innscor Africa P/L vs Letron Chimoto SC 06/12: Toyota vs Posi SC 55/07. It was on this basis the Respondent prayed in each case for the appeal to be dismissed and the penalty of dismissal to be retained.

Having considered the submissions by the parties and the authorities as relied upon by them the court’s considered view is that the dismissal penalty was appropriate in each of the Appellant’s case. There is no doubt that the Appellants were all employed in a company which is the sole custodian of the stolen diamonds. They were all engaged in a very sensitive position as security guards. Their role was to ensure zero pilferage of the diamonds. This required that they had to protect the precious assets. The records of proceedings clearly showed that each one of them had failed to carry out the duty to protect and prevent pilfering of the precious. The charge of gross incompetence was clearly established by the Respondent.

On the issue of theft and fraud the Respondent managed to establish that diamonds were indeed stolen. The diamonds were never recovered. The Respondent took a very serious view of the matter in view of the appellants’ negligence and incompetence. There is no doubt that trust had also been broken between the parties. The fact that the Code of Conduct provided for a graduated penalty system starting with educational measures, corrective measures with punitive measures only being imposed after these measures have been adopted is immaterial in this case. The appellant acts of misconduct clearly went to the root of the contract justifying the dismissal penalty. The penalty of dismissal was therefore appropriate in each of the cases.

In the result it be and is hereby ordered as follows:

The appeals filed under LC/H/20/19, LC/H/21/19, LC/H/22/19, LC/H/23/19, LC/H/24/19, LC/H/25/19, LC/H/26/19, LC/H/27/19, LC/H/28/19 be and are hereby dismissed with costs.