Zimbabwe Revenue Authority v Joseph Mukurazhizha

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/23/2022
HARARE, 22 SEPTEMBER 2022 &
CASE NO LC/H/07/21
2022
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/23/2022

HARARE, 22 SEPTEMBER  2022 &		   CASE NO LC/H/07/21

2022

In the matter between:-

ZIMBABWE REVENUE AUTHORITY		APPELLANT

AND

JOSEPH MUKURAZHIZHA			RESPONDENT

Before the Honourable Manyangadze  J

For the Appellant	 -     	Mr T.L Marange (Legal Officer)

For the Respondent	-   	Mr T.J. Mafongoya  (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of a labour officer issued on 24 December 2020, in terms of which he found the respondent not guilty of misconduct charges that had been preferred against him by the appellant.

The labour officer made the determination after the dispute between the parties was referred to him in terms of s 101(6) of the Labour Act [Chapter 28:01] (the Act).

The facts forming the background to the matter, briefly outlined, are that the respondent was employed by the appellant as a Revenue Officer.

At the material time, he was carrying out his duties at the Motor Traffic, Change of Ownership Section, Harare.

On 20 January 2016, the respondent processed an application for change of ownership of a Ford Ranger Vehicle.  He recorded it, and processed its change of ownership as a 1996 single cab model. Investigations later revealed that the vehicle was a 2014 double cab model.

This irregular process resulted in loss of revenue in the amount of US$19 320,00.

On 29 June 2016, the respondent processed, a change of ownership for a Toyota Hilux Vehicle.  It was processed as a 2005 model. Investigations later revealed that it was a 2015 model. The loss of revenue was in the amount of US$10 391,30.

As a consequence of these irregularities, the respondent was charged with misconduct in terms of the ZIMRA Code of Conduct. The charge was;

“Carrying out any act, which is inconsistent with the express or implied conditions of the contract of employment”

The workplace disciplinary proceedings, conducted in terms of the employment Code of Conduct, could not be completed within stipulated timelines. The matter was referred to a labour officer in terms of  s 101(6) of the Act.  This resulted in the determination which is the subject of this appeal.

The appellant’s grounds of appeal are stated as follows:

“1.	The Labour Officer erred and misdirected himself in finding that Respondent’s actions was consistent with the express and implied conditions of his contract of employment.

2.	The Labour Officer erred and misdirected himself in finding that the Respondent had not received any training.

3.	The Labour Officer erred and misdirected himself in finding that Respondent had conducted a proper physical examination.

4.	The Labour Officer erred and misdirected himself in finding  that the vehicles which had been submitted for physical examination might have been tampered when that was never before him.

5.	The Labour Officer erred and misdirected himself by delving in the issue of fraudulent identity cards, when same was never before her.”

I shall proceed to deal with the grounds of appeal in the order in which they are presented.

Ground 1

I  find this ground of appeal rather broad and general.

In its heads of argument under this ground of appeal, the appellant is in fact arguing other specific grounds of appeal, in particular ground 3.  Ground of appeal 3 deals with the question of whether or not a physical examination was carried out. The appellant contends that in failing to carry out a physical examination of the vehicles involved, the respondent’s conduct was inconsistent with his contract of employment.  Reference is made to cases that state that such conduct goes to the root of the contract of employment.. These are  Standard Chartered Bank  v Chapuka  SC  125/04,  Tobacco Sales Floors Ltd  v Chimwala 1987(2) ZLR 210(S), Circle Cement  v Nyawasha  SC  60/02.

In my view, the particulars or specifics of the conduct complained of are dealt with under ground of appeal 3, which will be adverted to later.

Suffice it to say that nothing much turns in this ground of appeal, due to its broad and general nature.

GROUND 2

This ground deals with the question of whether or not the respondent received adequate training for the work he was carrying out.

One of the respondent’s lines of defence is that he was not trained for the work he was doing at the change of ownership section.  The appellant refutes this assertion by pointing out that the respondent underwent training from 2010 to 2012. Revenue Officers are placed under this traineeship before they are deployed. It covers all aspects of customs and tax work. The appellant avers that the respondent was offered the contract of employment, which he accepted, on the basis of this training.  He cannot then turn around and claim that he received no training.

More significantly, in his response to the allegations, the respondent avers that he carried out all the procedures required. He outlines these procedures. He even claims that they were clearing about 10 vehicles per day without any mishaps. These averments clearly contradict the claim that the respondent lacked training for the job he was doing. They lend weight to the appellant’s submissions in paragraphs 68-69 of its heads of argument  that,

“a.	The Respondent in his report confirmed that he was aware of the procedure that he was supposed to follow in conducting a change of ownership of a vehicle and recited same as they appear in the 20123 Change of ownership manual.

b.	Should he (sic) had not (sic) been aware of the procedures. Respondent was supposed to seek clarity from the work procedures and manuals and not proceed to embark on an exercise he was not conversant. The Respondent in the present case cannot have his cake and eat it.  He can (sic) approbate (recite the procedure) and reprobate (profess ignorance on the procedure).

c.	It is respectfully submitted that with the years of experience which the Respondent has, his argument cannot be seen to carry the light of day.”

In the circumstances, this ground of appeal lacks merit and cannot be upheld.

GROUND 3

This ground deals with the question of whether or not a physical examination was carried out.

In my view, this is the gravamen of the appeal.  It is the  crux of the matter.

The appellant avers that the reason why wrong years of manufacture for the vehicles in question were recorded is because no physical examination was carried out.  This point is clearly and forcefully contended in appellant’s heads of argument in paragraphs 74-77, wherein is stated;

“74.	In the first count, if the Respondent had just had sight of the motor vehicle which was being presented for change of ownership then it would have been apparent that the vehicle is a 2014 not a 1996 model.

75.	The glaring disparity between the 1996 model and the 2014 model is too gross to be missed.

76.	With regards the second count, a meticulous physical examination to ascertain origin and condition of the motor vehicle would show that the care for which change of ownership is being applied is a 2015 Toyota Hilux and not a 2005 one.  Furthermore, the Respondent would have managed to notice that the Chassis number had been improperly captured and the letter C had been omitted from the Chassis number.

77.	In the Labour Officer’s determination on the last page, he determines that in the presence of the physical examination from it (sic) would be fatal to conclude that no examination was done, it is respectfully submitted that on the second count, the inverse ought to be true.”

In the first count the models are different.  They could simply not be mistaken or be said to have been tampered with, being a single cab and a twin cab.  The only reasonable inference is that either no physical examination was carried out at all, or if it was carried out, the wrong information was entered on the physical examination form.

In respect of the second count, no physical examination report was attached. If a physical examination was carried out the report should have been attached, highlighting the anomalies on this vehicle. The anomalies were the year of manufacture and the wrong chassis number.

The untenable scenario the respondent tries to depict is that dummy vehicles were presented for physical examination, with the real vehicles somehow kept elsewhere.  The; facts of the matter do not bear this out. The respondent was simply unable to explain the substantial inconsistences in the documentation of the vehicles in question.  The Labour Officer, it seems, is at pains to explain out this highly improbable scenario, that is, that some sophisticated syndicate was involved, which led to the presentation of not only fake documents but fake vehicles as well.  This is reflected in the following remarks by the labour officer;

“The process, in my view, of managing the VCR records and registration book to suit the wrong years, obtaining a fraudulent identity card and probably obtaining a vehicle to suit the intended one is a plot that would require quite some time and a whole lot of connections who are criminal minded. I find it unfair and unrealistic to link such a new employee to the whole plan.

In my view, the probabilities is very high that the vehicles brought for physical examination really suited the description on paper. In the presence of the physical examination form it would be fatal to conclude that no physical exam was done. At the same goal it would also be fatal to conclude that the 2014 as well as the 2015 vehicles are the ones that were brought for physical exam.”

It appears the labour officer lost sight of the fact that no physical examination form was attached in respect of the second motor vehicle.

Given the facts of the matter, the labour officer’s analysis and conclusions are not supportable.  The inexorable inference, in my view, is that either no physical examination was carried out, or, if it was carried out, incorrect information was endorsed on the reports.

Such conduct was clearly inconsistent with the express or implied terms and conditions of the contract of employment. The misdirection by the court a quo warrants interference. See Barros & Anor v Chimpondah 1999(1) ZLR 58.

This ground of appeal has considerable merit and must be upheld.

GROUNDS 4 AND 5

The analysis under ground of appeal 3 render these two grounds of no effect.  As already indicated, the appeal turns on a resolution of ground 3. These 2 grounds, that is 4 and 5, point to the possibility of a scam or fraudulent syndicate to which the respondent fell victim.

The essence of ground 3 is that had respondent carried out checks which involve a thorough and accurately recorded physical examination, the anomalies would have been unearthed.  Once ground of appeal 3 is upheld, as it has been, the appeal succeeds.

In the result, it is ordered that;

The appeal be and is hereby allowed.

The determination of the labour officer issued on 24 December 2020 be and is hereby set aside and is substituted with the following:

The respondent be and is hereby found guilty as charged.

The respondent be and is hereby dismissed from employment with effect from the date of suspension.

Each party bears its own cost.

Mafongoya and Matapura, Respondent’s Legal Practitioners.