Nkosikhona Nxumalo v City of Bulawayo

### Preamble
Judgment No. SC 89/22
Civil Appeal No. SCB 23/22
1
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DISTRIBUTABLE	(76)

NKOSIKHONA     NXUMALO

v

CITY     OF     BULAWAYO

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA & CHIWESHE JA

BULAWAYO: 18 JULY 2022 & 20 JULY 2022

Z.C. Ncube for the appellant

L. Nkomo with Ms S. Ngwenya for the respondent

MATHONSI JA:	This is an appeal against the judgment of the Labour Court handed down on 21 June 2021 which dismissed the appellant’s appeal against the decision to dismiss him from employment.

At the hearing of the appeal the court heard both the preliminary points raised by Mr Nkomo for the respondent and the merits of the appeal and reserved judgment.  The preliminary points taken are that the appeal made to the court a quo was incompetent and ought to have failed for that reason.  In addition, counsel for the respondent submitted that there were reviewable irregularities which vitiated the proceedings in the court a quo.  He urged the court to invoke its review powers reposed by s 25 of the Supreme Court Act [Chapter 7:13] to set aside these proceedings.

This Court finds no merit in the preliminary points taken on behalf of the respondent given that the appellant, who at the time was unrepresented, had lodged an appeal against his dismissal from employment which appeal was clearly intended to impugn his conviction on a misconduct charge as well as the resultant dismissal from employment.  The court a quo correctly related to the matter as an appeal against both conviction and penalty.

The court also finds that the General Purposes Committee which dealt with the appellants appeal against the decision of the Disciplinary Authority having merely upheld the decision of the Disciplinary Authority without giving any reasons, nothing turns on the appellant’s grounds of appeal in the court a quo having attacked the finding of the Disciplinary Authority and not the judgment of the appeals tribunal.  This is more so in a labour matter where there is no strict adherence to the rules of procedure.

It is the finding of this Court though, that the appeal is without merit as the judgment of the court a quo is sound.  No basis for interference with it has been established in light of the overwhelming evidence that the appellant was guilty of misconduct.  He was properly found guilty and dismissed from employment.

THE FACTS

The appellant was employed by the respondent as a Security Guard (Grade 3).  He was however seconded to the Financial Services Department to act as a Trade Worker (Grade 3).  In that capacity, he was in a team of workers tasked with the responsibility to disconnect the water supply from defaulting residents of Old Magwegwe, Bulawayo.

One of the affected houses was house number 209/2 Old Magwegwe which was occupied by one Sandra Ndlovu.  The appellant alleged that upon arrival at that house he found no one present as a result of which he still disconnected the water supply and slid a notice to that effect under the door.

Investigations conducted later by the respondent revealed that, notwithstanding the report compiled by the appellant that water supply had been disconnected, house number 209/2 Old Magwegwe and a number of other houses which were supposedly disconnected, had running water as supplies had not been disconnected.

Further investigations elicited a statement from Sandra Ndlovu which reads:

“209/2 Old Magwegwe

01/02/2020

I am Sandra Ndlovu 14/01/2002 (sic) I negotiated with the people who were disconnecting water supplies.  They asked that I give them R150, 00 I then gave it to them.  They then did not.

Yours

Sandra Ndebele.”

As a result, the appellant was, on 10 March 2020, charged with misconduct, it being alleged that on 14 January 2020 he had solicited for a bribe from a defaulting householder in Magwegwe suburb in order to spare the house from disconnection.  He denied the allegations maintaining his innocence.  A disciplinary hearing was held before the Disciplinary Authority at which hearing Sandra Ndlovu was called as a witness by the employer.

In her viva voce evidence at the hearing, Ndlovu recanted the statement she had earlier submitted.  In fact she denied any knowledge of the appellant.  She also denied having paid a bribe of R150, 00 to anyone.  While admitting having made a statement implicating the appellant, Ndlovu stated that she had made the statement out of fear that she would be reported to the police.

The Disciplinary Authority found Ndlovu to be an untruthful witness. It however accepted her earlier statement which was corroborated by further evidence of impropriety.  For instance, as already stated, investigations had shown that water had not been disconnected at the house in question, contrary to his assertion that he had disconnected.

The appellant was found guilty and dismissed from employment.  He was aggrieved and noted an appeal to the General Purposes Committee through the Town Clerk by letter dated 26 March 2020.  It reads in relevant part:

“Ref: Appeal against dismissal on alleged bribery of 150R (Water Disconnection) on 14-01-20 on 209/2 Old Magwegwe.

I Nkosikhona Nxumalo SR 86374 do hereby submit my appeal to the authority against dismissal on a case of bribery by a resident of Magwegwe involving the amount of R150.  On the said date the said property had no person, I entered and disconnected the stopcock and left.  Further the owner testified in the board of inquiry that she was out, she was not home and I have no reason to accept bribery.

Yours truly

Nkosikhona Nxumalo

SR 803714”

(The underlining is for emphasis)

The decision of the General Purposes Committee was communicated to the appellant by letter of 22 May 2020. The letter simply contains a conclusion in the following:

“OUTCOME OF APPEAL AGAINST DISMISSAL (GENERAL PURPOSES COMMITTEE).  MR NKOSIKHONA NXUMALO STAFF REFERENCE NUMBER 86374: TRADE WORKER GRADE 3: FINANCIAL SERVICES DEPARTMENT.

The above matter refers:

Following the hearing of your appeal against the penalty of dismissal, the General Purposes Committee (21st May 2020) resolved that:

The decision of the Disciplinary Authority be upheld.  Your dismissal is with effect from 10th March 2020 the day you were suspended from duty.

By copy of this letter your Head of Department would proceed to terminate you from service accordingly effective from 10th March 2020.”

PROCEEDINGS BEFORE THE COURT A QUO

The appellant was again not satisfied with the outcome of his appeal.  He appealed to the court a quo on three grounds all of which sought to impugn the findings of the Disciplinary Authority.  The thrust of his complaint was that he should not have been found guilty as there was insufficient evidence upon which he could be found guilty.

The court a quo found no merit in the appeal.  It concluded thus at p 10 of the judgment:

“The evidence of the investigating team, of Martin Ncube and that of Sandra herself was sufficient to bolster the respondent’s case against the appellant.  All of them state that the water was not disconnected at the time of follow up by the council.

Sandra does not say that she was threatened but feared arrest by the police.  The evidence that Ndabezinhle threatened people at house No. 209/2 Old Magwegwe, after the offence was discovered was never challenged.  Why would he do it if they did not find anyone at the house and proceeded to disconnect.  As alluded to above already, the evidence on a balance of probabilities favours the version of the respondent.”

The court a quo dismissed the appeal because it was of the firm view that the appellant’s guilt was proved on a balance of probabilities.

PROCEEDINGS BEFORE THIS COURT

Still dissatisfied, the appellant appealed to this Court on seven grounds.  Regardless of the numerous appeal grounds, Mr Ncube, who appeared for the appellant submitted that, once distilled, the grounds of appeal yield only one issue for determination in this appeal.  It is whether there was sufficient evidence upon which the appellant could be found guilty of misconduct.

Counsel submitted that in a case such as the present, where allegations of criminal conduct are leveled against an employee, the onus of proof resting upon the employer should be higher than the usual proof on a balance of probabilities required in all civil matters.  This appeared to contradict submissions he made at para 26 of his heads of argument that:

“The employer bore the onus of proving all the elements of the alleged contravention on a balance of probabilities.”

Mr Ncube submitted that, because Sandra Ndlovu recanted her evidence when she appeared before the Disciplinary Authority, there was insufficient evidence to sustain a conviction.  In his view, the court a quo’s judgment should be impugned on that basis.

Per contra Mr Nkomo for the respondent submitted that the appellant only appealed to the General Purposes Committee against the penalty only.  He did not contest the verdict of guilty to misconduct.  The internal appeals tribunal only related to the penalty and dismissed the appeal.  In counsel’s view, it was not open to the appellant to then appeal to the court a quo, firstly against the decision of the Disciplinary Authority, and secondly against his conviction on a charge of misconduct.  The appellant’s recourse to the court a quo was against the decision of the appeals tribunal and not that of the Disciplinary Authority, so it was argued.  It was submitted that the proceedings a quo were therefore irregular and should be set aside.

On the merits, Mr Nkomo defended the judgment of the court a quo on the basis that its ratio decidendi was not specifically attacked in all the seven grounds of appeal.  In his view, the reasoning of the court a quo that the guilt of the appellant was proved, is unassailable.

ANALYSIS

I have said that the contents of the appellant’s letter of appeal to the internal appeals tribunal are clear that he was challenging the guilty verdict.  Indeed the appellant sought to maintain his innocence insisting that, not only had he disconnected the water supply, he had found no one at the house that he could have solicited a bribe from.  It is the view of this Court that to argue that the appeal was against the penalty only, merely on the basis of the heading, is to worry about form rather than substance.

This Court appreciates that disciplinary proceedings are informal and are not subjected to the strict rules of procedure.  Not all procedural irregularities will vitiate disciplinary proceedings but only those of such magnitude that they go to the root of the proceedings and lead to prejudice.  See Nyahuma v Barclays Bank of Zimbabwe SC 67-05; Unifreight Limited v Madembo SC 6-18.

In light of the General Purposes Committee having related to the appeal against both conviction and penalty and not having rendered any reasons for upholding the decision of the Disciplinary Authority, the appellant was entitled, in his appeal to the court a quo, to question the findings of the latter tribunal the way that he did.

By the same measure, the court a quo was entitled to engage the dispute the way it did.  There is no merit in the preliminary points raised on behalf of the respondent.

Regarding the merits, the court a quo gave very sound reasons for upholding the conviction of the appellant by the trial tribunal.  In order for this Court to interfere with the judgment of the court a quo it must be demonstrated that a misdirection occurred.  Unfortunately the appellant has failed to point to any such misdirection

DISPOSITION

The inescapable conclusion to be made is that the appeal is thoroughly without merit.  The appellant was properly found guilty of misconduct and dismissed from employment.

On the question of costs, this Court is of the view that this is a proper case where each party should bear its own costs.  The appellant was a low-level employee who has suffered the ignominy of losing his employment.  That should be enough punishment as it has not been shown that he has the wherewithal to meet an order for costs.

In the result it be and is hereby ordered as follows:

1.	The appeal is dismissed.

2.	Each party shall bear its own costs

GWAUNZA DCJ:				 	I agree

CHIWESHE JA:					I agree

Messrs Ncube & Partners, appellant’s legal practitioners

Messrs Coghlan & Welsh, respondent’s legal practitioners