Wilford Nyahanda Makoni v City of Harare

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/389/16
HARARE, 18 MAY 2016
CASE NO.
JUDGMENT NO. LC/H/389/2016
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IN THE LABOUR COURT OF ZIMBABWE	                     JUDGMENT NO. LC/H/389/16

HARARE, 18 MAY 2016				              CASE NO. LC/H/APP/30/16

AND 23 JUNE 2016

In the matter between:-

WILFORD NYAHANDA MAKONI				Applicant

And

CITY OF HARARE							Respondent

Before The Honourable E. Muchawa, Judge

For Applicant	P.T. Chakanyuka (Legal Practitioner)

For Respondent	Obey Shava (Legal Practitioner)

MUCHAWA, J:

This is an application for leave to appeal to the Supreme Court against a judgment of this Court of the 11th December 2015.

The court found that the arbitrator had erred in holding that the applicant had been unlawfully dismissed and in ordering reinstatement.

The applicant who was employed as a chief clerical officer, by the respondent was charged of fraud following two transactions he was involved in, involving Central Dry Cleaners.

It was a finding of this court that the applicant had been properly found guilty of fraud and had been properly dismissed.

The conduct of the applicant was found to fit within the definition of fraud in respondent’s Code of Conduct.  In particular, it was found that the applicant had made several unlawful representations to Central Dry Cleaners.  Applicant does not dispute that he made an unlawful visit to Central Dry Cleaners to remind them of an “overdue” account and that he threatened to disconnect them.  That account was in fact not overdue.

A further misrepresentation was made that applicant could make payments on behalf of the Central Dry Cleaners messenger.

The fake receipts produced show a further misrepresentation.

The unlawful representations or changes can be either intentional or not.  It was found that applicant’s unlawful representations had been both in writing and by conduct.  The demonstrated prejudice to City of Harare was shown to be $6 608.00.

My finding was that the standard of proof required to be discharged as set out in ZESA v Dera SC 79-98 had been satisfied.

In the proposed appeal, the applicant alleges that this court erred in its findings as the legal essential elements of the offence were not established and proved.  It is further alleged that the perpetrator of the offence of fraud is unclear and it was not the applicant even though he made a visit to Central Dry Cleaners once to remind them that their account was overdue.

In considering an application for leave to appeal, the court is guided by the case of Pichanick N O v Paterson 1993 (2) ZLR 163 it.  Leave to appeal should be granted where there is a reasonable prospect of success, the amount in dispute is not trifling and the matter is of substantial importance to one or both parties.

The primary question is whether or not there are prospects of success on appeal.

The applicant seems to ignore the extensive manner in which this court set out and demonstrated how the essential requirements of the offence were satisfied.  He has picked out certain aspects such as applicant’s unlawful visit to Central Dry Cleaners, to say this does not prove any fraud.  The court however cumulatively considered the applicant’s conduct and in balancing the probabilities in the case, selected the more plausible conclusion, which was that applicant had indeed been part of the commission of fraud.

The applicant still has not grasped that the definition of fraud is not limited to where one makes unlawful changes but includes instances of unlawful representations.  Applicant, in his proposed ground 3 of appeal concedes that he made unlawful representations.

In the circumstances I do not see the Supreme Court coming to a conclusion different from the one reached by this court.

Accordingly the application for leave to appeal be and is hereby dismissed for lack of merit.

Zvimba Legal Practitioners, applicant’s legal practitioners

Mbidzo, Mucadehama & Makoni, respondent’s legal practitioners