ZB Financial Holding Ltd v Sheila Botha

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/238/13
HELD AT HARARE 7TH JUNE 2013
CASE NO
JUDGMENT NO LC/H/238/13
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/238/13

HELD AT HARARE 7TH JUNE 2013 		     CASE NO LC/H/163/10

ZB FINANCIAL					Appellant

HOLDING LTD

SHEILA BOTHA					Respondent

Before The Honourable G Musariri, President:

For Appellant		Mr S Sadomba, Attorney

For Respondent		Mr S Ngandu, Unionist

MUSARIRI, G:

On 30th March 2010 the NEC Banking made a determination.  It ordered Appellant to reinstate Respondent’s employment without loss of salary and benefits from the date of her dismissal.  Appellant then appealed to this Court against the determination. Respondent opposed the appeal.

Appellant’s case was as follows:

Respondent worked for Appellant as an Acting Transaction Controller.

On 4th January 2006 she raised a payment voucher for

ZWD$2 650.000.

She encashed the voucher and paid one Chareka for services rendered to Appellant.

On or about the same date it was found that the payment voucher was not supported by an invoice.

Appellant was tasked to produce the invoice but she failed to produce same despite claiming that it was in her office.

Investigations were made during which contact was made with Chareka.

Chareka produced his quote in the sum of $650.000.  A copy is filed of record.

On 7th January 2006 he made a written statement confirming that he was paid $650.000 by Respondent.

On these facts Respondent was charged with and convicted of theft/fraud in respect of the discrepancy amounting to ZWD2.000.000 between the payment voucher and the actual payment to Chareka.

10.  As a result, Appellant dismissed Respondent from its

employ.

During the hearing of an internal appeal, Respondent produced an affidavit made by Chareka which recanted his earlier statement.  In it he claimed that he had been paid ZWD$2 650.000.  This tied in with Respondent’s claim that she paid Chareka the amount she had encashed.  Apparently on the basis of that affidavit the appeals panel deadlocked on two separate occasions. The matter was then referred to the NEC which ruled in favour of Respondent.

I consider that the NEC’s determination flew in the face of the evidence.  The facts before the initial hearing included the crucial documents.  The quote for $650.000 by Chareka was corroborated by his written statement showing that he had been paid the said amount.  The payment voucher for $2.650.000 was available.  Glaringly absent was a reasonable explanation for the balance of $2.000.000.  What did Respondent do with it?  She said she paid Chareka.   What was her proof?  The answer was none.  She did not get Chareka to sign for the payment.  That was unusual, considering that the payment was in cash.  She could not produce the quote/invoice in the sum of $2.650.000 which she claimed was in her office.

On these facts I am satisfied that the balance of probabilities favoured Appellant’s case.  A charge of misconduct need only be proved on a balance of probabilities.

This position was restated in the case of

Zimbabwe Financial Holdings v Mafunga 2006 (2) ZLR 289 (S)where Gwaunza JA stated that (at p294 G-H)

“The Labour Court’s reference to the ‘danger of convicting an innocent man’ to my mind suggests that the Court was applying a higher test for proving a case against the Respondent than is required in a case of this kind.  I am satisfied, on the evidence before the Court, that the Appellant proved on a balance of probabilities, that the Respondent had committed the acts of misconduct he was charged with.”

(The underlining for emphasis is mine.)

The affidavit by Chareka recanting his earlier statement is not filed of record.  It does not tally with the voucher and statement he produced during investigations by Respondent’s Mr Hamandishe.  It was just tendered by Respondent’s representative without an explanation of the circumstances in which it was made.  Crucially no explanation was given as to why it was not produced at the initial hearing.  I find it difficult to credit the affidavit in these circumstances.

Wherefore it is ordered that,

The appeal is hereby allowed;

The dismissal of Respondent from employment by Appellant is

upheld; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT