Tsungai Rubengo v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/15/2021
HARARE, 27 JANUARY 2021
CASE NO. LC/H/228/19
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/15 /2021

HARARE, 27 JANUARY 2021			CASE NO. LC/H/228/19

AND  26 MARCH 2021

In the matter between:

TSUNGAI RUBENGO 							APPLICANT

versus

GRAIN MARKETING BOARD						 RESPONDENT

Before The Honourable Kachambwa J

For Applicant 	- Richard Zinhema	(Legal Practitioner)

For Respondent	- Farai Chinyama 	(Legal Practitioner)

KACHAMBWA J:

This is an appeal against the decision of the Grain Marketing Board Appeals Committee which decision confirmed the decision of the disciplinary committee.  The disciplinary committee found the appellant guilty of three charges.  The appellant was charged in terms of the Grain Marketing Board Code of Conduct.

The Charges

The first charge was that of theft of quarry stones.  It is in contravention of Category 1 Section 3 (i) of the Code.  Appellant was alleged to have taken the respondent’s quarry stones to her house which she was building outside Bazeley Bridge Shopping Centre.

The second charge was that of contravening Category 1 Section 5 of the Code of Conduct, “failure to account for missing property belonging to the organization which one is responsible to look after “. The appellant was said to have failed to account for a shortfall of 181 bags of maize.  She was also said to have failed to produce stack record sheets which could have helped to account for the maize.

The third charge was a contravention of Category 1 Section 11 of the same code, “any act of misconduct or omission inconsistent with the fulfilment of the express or implied condition of one’s contract of employment” It was alleged that in connection with the quarry stones she had unlawfully instructed the security guard not to record the loads in the gate book.  The guard complied.

Evidence- The disciplinary committee called evidence from the loaders of the quarry stones, the driver of the truck, the guard, the investigating officer and the audit clerk.  The appellant called herself and two  loaders to give evidence in her behalf.  The disciplinary committee found her guilty.  She appealed to the Appeals Committee.

The Appeals Committee

The appeal to the appeals committee basically argued that there was no evidence to convict.  The appeals committee did not agree.  It accepted the decision of the disciplinary committee.

The Appeal to the Labour Court

The appeal to the Labour Court on the merits is basically on the same grounds of the appeal to the Appeals Committee.  Eleven grounds onbh appeal were raised as follows

“

The Appeals Committee erred in confirming the decision of the disciplinary authority that Appellant is guilty of theft when in fact the essential elements of

theft and factual allegations contained in the misconduct charges had not been proved

The Appeals Committee misdirected itself by confirming that +/- 10m3 of quarry stones had been moved or stolen when in fact there was no evidence to substantiate the quantum thereof.

The Appeals Committee erred in confirming the guilty verdict on all charges or counts levelled against the Appellant when in fact the evidence of the key witnesses was inconsistent in material aspects; therefore rendering the evidence unreliable.

The Appeals Committee erred in confirming that the Appellant ought to have sought authority from the Technical Services Department or from the Regional manager to move quarry stones when in fact the GMB operations manual does not provide the need to seek authority when moving consumables or quarry stones from the Depot to GMB cottages.

The Appeals Committee misdirected itself in confirming the decision of the disciplinary committee that Appellant had failed to provide a reasonable explanation on why the truck made two trips to deliver a few quarry stones when in fact Appellant had given a satisfactory explanation on the issue.

The Appeals Committee misdirected itself in confirming that the Appellant    had failed to account for the missing maize when in fact the Appellant had given reasonable explanation on maize shortages, and thus Appellant reasonably accounted for the missing property.

The Appeals Committee misdirected itself in concluding that daily, weekly and monthly stock counts were not being conducted when no documentary or oral evidence was led or tendered in order to arrive at that conclusion.

The Appeals Committee misdirected itself in arriving as a conclusion that maize was stolen under Appellant’s watch when in fact the evidence on the record clearly shows that maize could have been stolen whilst Appellant was on leave or when Appellant was the person in charge of the depot.

The Appeals Committee erred in confirming that Appellant had given an unlawful instruction to Patricia Dhliwayo when in fact there was insufficient evidence or no evidence to justify that conclusion.

The Appeals Committee misdirected itself and erred in confirming that the Appellant had failed to discharge her duties diligently and contrary to her duties as a depot assistant in charge when in fact there was no evidence to arrive at that finding or conclusion.

The Appeals authority misdirected itself in disregarding the evidence of Appellant’s witnesses who clearly exonerated Appellant from committing the offence of theft.

Basically the appellant was saying that there was no evidence to convict.  It is the same argument as before the Appeals Committee.

The appellant ‘s Argument

The appellant’s argument was basically that the evidence does not prove the charges.

On the charge of theft, the appellant argued that the key witness (the driver of the lorry that carried the quarry stones) ‘s evidence was unreliable because he changed his statement.  By so doing so, the appellant said, the witness was aprobating and reprobating.  She said that this was the only witness who could sustain the charge and his evidence is not reliable.  Further, the appellant argued that the charge should be proved beyond reasonable doubt as per the case of Astra Industries Ltd vs Peter Chamburuka SC 258/11 and that of Mugabe and another vs Law Society of Zimbabwe 1994 (2) ZLR 356 (5).  It was further argued that witnesses’ evidence was uncorroborated that there was  no evidence of the appellant’s alleged house where the quarry stones were alleged to have been delivered at.  As for the appeals Committee’s decision it was said to have been based on the simple basis that two loads of quarry stones were moved and that the Committee was of the view that it defied logic that a ten tonne truck would move a few quarry stones.  The appellant also alleged that the appeals committee did not consider the appeal basing on the record.  Appellant wanted proof of the quantity of the quarry stones and not the various estimations of the witnesses.  Such differing estimations was said to be in favour of the appellant and there was no corroboration.

On the 181 missing bags of maize the appellant said that she had adequately accounted for them.  Firstly, she said that she was on leave on the relevant time.  Secondly there was a police report by her.  Thirdly the witnesses exonerated her.  Fourthly her explanation that the loaders were overloading was not disputed.  Fifthly she had notified the regional manager of the report that security guards were loading two extra bags but nothing was done.  Sixthly no records were produced to show that stock counts were not done as required.  For these reasons the appellant said that the appeals committee erred in confirming the ruling of the disciplinary committee.

On giving unlawful instructions to Patricia Dhliwayo appellant said that there was not enough evidence.  Patricia’s evidence was said to be uncorrobated and self – contradictory.

The appellant also said that her two witnesses’ evidence was corroborative and uncontroverted.  There was no reason given for not accepting it.  It should be accepted against that of the employer.  It is more credible.

Respondent’s Arguments

Respondent argued that the charges had been proved by the evidence led.  Proof was on a balance of probabilities as said in the case of Michael Henry Browne vs

Tanganda Tea Company SC 22/16.  It was argued that the witnesses corroborated each other  together with circumstantial evidence.  The balance of probabilities was with the respondent.

Standard of Proof

The standard of proof in civil matters remains on a balance of probabilities.  The case referred to by the appellant,  a 2011 case, did not change this standard.  Later cases, like the one cited by the respondent, have restated this standard.  There were also further cases such as Onwell Madovi vs Standard Chartered Bank of Zimbabwe (Private) Limited SC136/20 at pages 7 -8 of the cyclostyled judgement –

“One also needs to be conscious of the kind of proof required to find liability given the nature of the circumstances which confronted the appellant in this matter.  After carrying out detailed analysis of a number of cases that dealt on the issue Gwaunza DCJ concluded that the amount of proof required to find liability is proof on a balance of probabilities.  In a recent judgement of this Court, viz Charles Marevesa vs Telone( Pvt )Ltd SC 32/19 the learned DCJ put the legal position as follows:

“From the above analysis of relevant dicta, l am satisfied that the position spelt out in ZESA vs Dera (Supra) remains the correct position of the law.  The burden of proof in labour proceedings is proof on a balance of probabilities.  The Labour Court does not sit as a criminal court and the proceedings before it is civil in nature”   “

Proof in labour matters remains proof on a balance of probabilities even if the charges are of a criminal nature.  Consequently it was erroneous for the appellant to have her appeal on the wrong standard of proof.

The Right of an Appellant Court to interfer with the findings of facts by a lower court

The appellate court’s interference will the findings of fact by a lower Court are generally fettered.  The appeal court does not have it easy.  It has been mentioned in a plethora of cases that the appellate court must be slow to interfer, it must not lightly interfer.  The position has been restated recently in Patras Mazibuko vs Telecel Zimbabwe (Private) Limited SC 129/20 wherein the court at pages 7-8 said

“It is trite that there are limited grounds upon which an appellate court may interfere with the decision of a lower court on factual findings or exercise of discretion.  It is not enough that the appellant court considers that if it had been in the position of the lower court it would have taken a different course…...

Where the attack is premised on findings of fact, as in this case, the appellate court will interfere will such findings of fact if the findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion, or that the court had taken leave of its senses, or , put otherwise , the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have  arrived at it.  See Metallon Gold Zimbabwe vs Golden Million (Private) Limited SC 12/15 at page 7 and Hama vs NRZ 1996 (1) ZLR 664 (5) at 670.

The circumstances under which this Court will interfer with the findings (of facts) of a lower court were also anunciated by this Court in RBZ vs Granger and Another SC34/2001 as follows:

“There must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision.  A misdirection of fact is either a failure to

appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented “   “

It has been said recently that there is no need to make the allegation as long as the argument shows that there has been a misdirection.  The superior courts have also cautioned that an appeal court should not been in the habit of looking out for mistakes by a lower court in order to interfere with the lower court’s decision.  Two courts may, on the same facts, come to different conclusions without either court being wrong.  For that reason, it is cautioned, that an appellate court must be slow in interfering with the decision of a lower court.

The Case at Hand

The appellant has argued that the evidence is not adequate to convict It has also been argued that this Appeal Committee did not give its reasons for rejecting the appellant’s evidence.  Be that as it may the bottomline is whether there is enough evidence to convict, whether the appeals committee (appeal court) misdirected itself in upholding the decision of the disciplinary committee (lower court).  In the light of the caution not to lightly interfere with the decision of a lower court the appeal committee seems to be correct.  There is no compelling evidence showing that the conviction was misplaced.  The appeal committee did not misdirect itself at all.  The committee was satisfied that the evidence was adequate to convict.  Obviously the committee read the record of proceedings of the disciplinary committee and after comparing it to the outcome it was satisfied that the outcome was correct on a balance of probabilities.  There is nothing that has been pointed out to be outrageously out of sync.  Nothing appears to be so on record.  This is a decision which is plausible.

CONCLUSION

This appeal court does not see the need to interfere with the decision of the appeals committee.  Consequently, it is ordered as follows

1. the appeal be and is hereby dismissed.

2. the respondent pays the costs.