Tinazhe Kapfudza v Zimbabwe Revenue Authority

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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 23RD
JUDGMENT NO.LC/H/31/25
CASE NO LC/H/773/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 23RD MAY 2024

AND

In the matter between

JUDGMENT NO.LC/H/31/25 CASE NO LC/H/773/24

TINASHE KAPFUDZA	APPELLANT

And

ZIMBABWE REVENUE AUTHORITY	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE.

FOR THE APPELLANT: IN PERSON FOR THE RESPONDENT:C.J. MAHARA

With him N.B MUNYURU

MAKMURE J:

This is an appeal against the respondent’s decision to dismiss the appellant. The appellant raised four grounds of appeal as follows:

‘1.The Respondent’s appeals committee erred at law in failing to make a finding that the charge against the Appellant was unsustainable at law to the extent same was premised on a document whose authenticity was questionable.

The Respondent’s appeals committee erred at law in failing to make a finding that the charge against the Appellant was unsustainable to the extent same was premised on a mistaken view that the document alleged to have been extended was a Commercial Temporary Import Permit (CTIP) when in fact the document was just a Temporary Import Permit.

A fortiori, the appeals committee erred on the facts and at law in failing to make a finding that the charge against the Appellant was unsustainable to the extent the procedures that the

Appellant is alleged to have failed to follow are not applicable the Temporary Import Permit being the correct document that was subject to the offense in issue.

The appeals committee erred on the facts and at law in upholding a dismissal penalty when the act of misconduct was technical in nature thereby warranting a lesser severe penalty than dismissal.’

At the commencement of the hearing the respondent raised a preliminary point to the effect that the appellant altered the grounds of appeal unprocedurally in that the grounds of appeal which were in the draft order when an application for condonation was granted , differ from the grounds in the appeal. The appellant’s position was that he is bound by his submissions.

It is true that an application for condonation is granted, among other requirements, on the strength of the attached draft grounds of appeal. In the present case the appellant reduced his grounds from five to four without leave to do so. The Court has adopted the position that while it was irregular for the appellant to do so without leave of the court, such was not fatal to the appeal. For that reason, the Court directs , in terms of r32(b) that merits of the appeal be considered. It is accordingly so ordered.

The appellant was charged violating paragraph D25 Most Serious Offences of the applicable code, that is , carrying out any act which is inconsistent with the express and implied conditions of the contract of employment. The allegations are that the appellant , unprocedurally, extended a commercial temporary import permit (the permit) for one of the clients. The client whose permit was so extended was already in violation of the Customs and Excise Regulations Statutory Instrument 154 of 2001. As a result of the initial irregular extension made by the appellant, more extensions were made based on that initial extension. Appellant also faced allegations of using another officer’s date stamp without authority to do so. The use of a colleague’s date stamp was admitted with the explanation that his own date stamp had been lost and he had alerted the authorities. Disciplinary proceedings were conducted. He was convicted and penalized with dismissal.

Since the question of the date stamp was explained, the rest of the judgment will focus on the offence of ‘ any act which is inconsistent…’

During the course of the Disciplinary proceedings he and his representative tried to put a defence. The representative however leaned more towards admitting the offence rather than a

denial. At page 60 of the record of proceedings the representative is recorded as having stated as follows: ‘ We sincerely apologize for what happened and he is sorry and accepts his error, he is not running away from his mistakes….’ That is an admission. It is trite that once an admission has been made, there is no need for evidence to be led.

The appellant appealed internally . The Appeals Committee upheld the initial decision and therefore dismissed the appeal .This led to the present appeal.

The appellant insisted that he wanted the original document which he is said to have used but during the course of the proceedings his representative indicated that it had been found on the file. So, while he may have had a case against factual findings made by the respondent, the manner that his representative presented the case on his behalf made it easy for the respondent to convict him.

The appellant raised the question that the charge preferred against him was unsustainable. Firstly, given the admission, that ground lacks merit. Secondly it is the prerogative of the employer to prefer charges of misconduct. Lancashire Steel v Elijah Zvidzai Mandevana and others SC29/95.

The appellant questioned the propriety of the penalty. The question of what the appropriate is, is the province of the employer. An appellate court will not interfere with the exercise of the employer’s discretion unless it is necessary to do so. This is trite. In Mashonaland Turf Club v George Mutangadura SC5/12 the Supreme Court stated that in general an appeal court will not interfere with the exercise of an employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the employment contract. See also Circle Cement (Pvt) Ltd v Chipo Nyawasha SC60/03.

In court, the appellant represented himself. He put up a spirited case regarding the document which he says asked for but was never given. This is what all his grounds appeal were based on. Indeed, all his address was based on the document which he articulated in detail. What is unfortunate though is that the disciplinary proceedings do not contain that detail. But more telling is what his representative said on his behalf during the hearing, that is, the admissions. The appellant referred the Court to authorities which include Rita Marque Mbatha v National Foods (Private) Limited CCZ 6/21;Hama v National Railways of Zimbabwe 1996(1)ZLR 664. In British American Tobacco Zimbabwe v Jonathan Chibaya SC 30/19 which is another case cited on behalf of the appellant it was held that it is trite that in our law he who alleges must prove. Thus, the respondent had the

burden to prove the appellant’s guilt on a balance of probabilities. The appellant submitted that in the absence of the original document he ought to be given the benefit of the doubt.

The position adopted on behalf of the respondent was that the appellant made concessions during the course of the disciplinary proceeding and as such the appeal is devoid of merit. It was further submitted on behalf of the respondent that an appellate court does not interfere with the factual findings of the lower tribunal unless such findings are grossly unreasonable. The Court was referred to authorities which include Central African Batteries v John Mhangu SC64-14; Mining Industry Pension Fund v BAD Marketing (Private) Limited SC25-12 .In Barros & Anor v Chimponda 1999(1) ZLR 58(S)which is another authority cited on behalf of the respondent, the court stated that an appellate court can only interfere where among other considerations the lower tribunal acted upon a wrong principle or allowed extraneous matters to affect it.

Given what appellant’s representative told the lower tribunal, it is clear that the appellant admitted to committing the offence. As such no matter how much he argues, the fact that there was an admission leaves the Court with no option but to agree with the lower tribunal.

The issue of whether the document was a Commercial Temporary Import Permit or a Temporary Import Permit in essence, is what the first three grounds of appeal are concerned with. The appellant submitted that the document which was used during the proceedings was a copy and yet the original he demanded right from the beginning was never produced. The document would, in his view have shown the correct position. However as already indicated the appellant through his representative admitted to the offence. So, while he may argue that he was never given the original document that he requested for right from the time that he was asked to submit a report, the admission betrays him. Further still another admission was made on his behalf to the effect that the document that he claimed to not have been given was found on file. What this means is that he actually saw the document in question. Thus, I agree with the position adopted on behalf of the respondent that the appellant made concessions and admissions during the course of the proceedings which he did not withdraw. In DD Transport (Pvt) Ltd v Abbot 1988(2)ZLR 92 SC, it was held that the effect of a formal admission is that there is no need to adduce evidence. In Tongai Machona v Old Mutual Limited SC34/21 the Supreme Court stated that where an admission is made the onus to prove the accused’s guilt falls away.

In view of the foregoing the appeal can only fail.

Accordingly, it is ordered that:-

The appeal be and is hereby dismissed.

There is no order as to costs.

MUVINGI &MUGADZA , RESPONDENT’S LEGAL PRACTITIONERS.