Thomas Morris & 5 Others v Arcturus Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/254/2014
HARARE, 25 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/254/2014

HARARE, 25 MARCH 2014 &			              CASE NO LC/H/10/2013

9 MAY 2014

In the matter between:

THOMAS MORRIS & 5 OTHERS				   APPELLANTS

Versus

ACTURUS MINE							   RESPONDENT

Before The Honourable E Muchawa   :   Judge

For the Appellants		T J Chigora	  (Legal Practitioner)

For the Respondent		T Tandi (Legal Practitioner)

MUCHAWA J:

This is an appeal against the decisions of the Internal Appeals Authority of the respondent. In all cases the internal appeals authority confirmed the guilty verdict of each appellant and the dismissal penalty.

The appellants are former employees of the respondent. It was alleged that on 22 October 2012 at around 1630 hours, each of the appellants had been involved in gold panning and had been seen so engaged. The spot of the alleged incident has along Mutenje River which is situated about 1.5 km to 2 km north-west of Arcturus Mine high density village. It was further alleged that four security officers on routine patrol had come upon the panners and noted their names down. When an arrest was attempted, the panners fled the scene leaving behind 2.387 kg of gold ore concentrate and nine plastic dishes among other panning material.

Each appellant was charged of wilful disobedience to a lawful order given by the employer in terms of the Mining Industry Code of Conduct. The order allegedly contravened reads:

“The employee shall not, without the written consent of the Managing Director, during the period of his employment, either alone or through or with any other person, partnership of company, directly or indirectly engage in any activity, be interested in any prospecting or mining activities whatsoever or directly or indirectly engage in activity, whether in or out of business hours or have any business interests which operate or might operate in competition with or contrary to the interest of the employer.”

In the evidence led before the disciplinary hearing tribunal and the appeals authority, the security officers established that they had been travelling in single file. Security officer Phiri who had been in front confirmed identifying all the appellants by name and calling them out for writing down by Security officer Marume who was second in the line. Security officer Marume also confirmed seeing all the appellants at the site. The two other security officers who were in third and fourth position did not see any of the appellants.

The grounds of appeal before me are as follows:

“The alleged acts of misconduct did not exist and there was no proper disciplinary hearing ever conducted (i.e.) the provision of S I 165 were not adhered to.”

In response the respondent raised the following points:

Essentially the appellants introduce new grounds of appeal in this Honourable Court that were never an issue and that were never put before the Appeals Authority, this is improper and the grounds so introduced are invalid.

The Appeal is patently defective because the matters were separately heard, thus it is improper to bundle the six appeals as one, when each matter was dealt with on its own and separately.

The disciplinary proceedings were done in line with the provisions of the Code of Conduct S I 165 of 1992.

I will first dispose of whether or not the appellant can competently introduce a new ground of appeal now.

New Ground of Appeal

Before the internal disciplinary authority the ground of appeal for each appellant was; “appealing against charge.” In each of the submissions before the appeals authority each appellant made submissions to establish that he had been wrongly found guilty as not enough evidence was led to establish his guilt. Nothing was said about the failure to comply with S I 165 of 1992 in terms of the procedure.

It was only before me that submissions were made that the matter was heard out of time. I was referred to s 2 (a) of Part D of S I 165 of 1992. This section provides that a formal disciplinary complaint should be laid within forty-eight hours of the discovery of the alleged offence. The hearing should be done within seventy-two hours (s 2 (b)).

In casu the offence allegedly happened on 22 October 2012, the complaint forms were raised on 31 October 2012 and the hearing was done on 2 November 2012. This was clearly out of the time frames laid out in S I 165 of 1992.

The respondents allege that it is incompetent for the appellants to raise new grounds of appeal so late in the day.

I was referred to the cases of Madamombe v Barclays Bank Ltd LC/H/63/08 and Dandadzi v Wankie Colliery Co Ltd 2001 (2) ZLR 298 (H) at 301 F – G wherein CHINHENGO J (as he then was) held as follows:

“It is my view that of the grounds upon which the applicant now seeks a review, only those I have numbered 4 to 6 were placed before the disciplinary appeal and should be considered on review. The applicant’s failure to raise other grounds must therefore be construed as a waiver of those grounds.”

I therefore find that the ground of appeal regarding the failure to comply with the procedures in S I 165 of 1992 is incompetent. In any event the appellant has not alleged any prejudice suffered so as to vitiate proceedings. (See Nyahuma v Barclays Bank SC-86-04). There is no basis alleged on which I can set aside the proceedings on the grounds of the alleged delays.

This part of the ground of appeal is consequently dismissed.

Bundling of the Six Appeals into One

The respondent raised the point in limine that the matters were heard separately and should not be bundled into one appeal.

I noted that though there were six different disciplinary hearings and appeals, the charges were similar. The complainant’s submissions were similar in all respects and the evidence recovered was used in each case and not apportioned to each appellant.

In the interests of the justice of this matter I invoked r 27 of the Labour Court Rules and allowed the bundling of the six appeals as no prejudice would be suffered by either party. Further it would work for the convenience of the parties and the court.

The Merits – Propriety of the Guilty Verdict

The appellants are alleging that they were convicted on the basis of “cooked up stories” of the evidence of only two of the four security guards. I was pointed to some alleged inconsistencies in the evidence. One such example is a question and answer session during investigations conducted by security officer Marume. Therein he states that one of the appellants was seen and positively identified and that they have evidence to that effect. It was the appellant’s argument that he should not have attributed all this to “a person” but should have said he is the one who saw the appellant. I do not see where the inconsistence is in this respect.

I find that the respondent did discharge the onus of proving, on a balance of probabilities that the appellants had committed the offence. In particular I note the following:

Two witnesses namely security officer Phiri and security officer Marume positively identified all the alleged offenders whilst security officer Marume wrote their names down as they were said out by security officer Phiri. This was from a distance of about six metres.

The other two security officers explained why their sight was blocked and they could not see the appellants. They however confirmed the names they heard called out.

Nine panners were identified and the evidence of nine dishes confirmed this as well as that of Kelvin Magilasi who was caught.

It was established that an escape route existed where one could avoid bruises and scratches. This dispelled one of the major defences by the appellants.

The appellants failed to prove their alibis as pleaded in the disciplinary hearings.

Searches of the appellants’ houses was unnecessary as the relevant evidence was abandoned at the site of the alleged offence.

The two key witnesses were from two different companies.

My hands are tied in interfering with the factual findings of the trial court as I am not satisfied that, having regard to the evidence placed before the court, they made outrageous findings which defy logic or accepted moral standards so as not to have been reached by a sensible person. (See Nyahondo v Hokonya & Ors 1997 (2) ZLR 475 (SC).

In conclusion I find no merit in all the grounds of appeal.

The respondent submitted he would not pray for costs as the appellants are not employed. In the circumstances the appeal is dismissed without an order as to costs.

Kantor & Immerman, respondent’s legal practitioners