Onwell Madovi v Standard Chartered Bank of Zimbabwe (Private) Limited

### Preamble
Judgment No. SC 136/20
1
Civil Appeal No. SC 914/17
DISTRIBUTABLE (127)
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DISTRIBUTABLE        (127)

ONWELL     MADOVI

v

STANDARD     CHARTERED     BANK     OF     ZIMBABWE     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

MAKARAU JA, HLATSHWAYO JA & BERE JA

HARARE: SEPTEMBER 11, 2018 & OCTOBER 19, 2020

Ms C. Mahlangu, for the appellant

T. Magwaliba, for the respondent

BERE JA:	This is an appeal against the whole judgment of the Labour Court handed down on 30 June 2017, which upset the determination of the Appeals Board of the National Employment Council (NEC) Banking undertaking of 15 July 2016 made in favour of the appellant.

FACTUAL BACKGROUND

The appellant was employed by the respondent at its Gweru Branch as a teller. On 18 September 2015, he was suspended from employment with full pay and benefits on the basis that there was a reasonable suspicion that he had acted inappropriately by conniving or omitting to report a theft by a fellow teller one Fortune Simbanacho (the principal offender).

Pursuant to the suspension, the appellant was formally charged of an offence in terms of the Respondent’s Employment Code of Conduct, namely a breach of Category D (ii) 1 being “any serious act, conduct or omission inconsistent with the fulfilment of the express or implied condition of his contract where such is not provided for under category A, B, C”.

The allegations were that on 26 August 2015 the appellant was given an amount of US$40.00 by the principal offender. It was alleged that the money was given to him at a time when the principal offender was in the process of balancing her cash for the day. It was further alleged that the principal offender failed to balance her cash by an amount of US$40.00 and that this was only discovered on 28 August 2018.

The suggestion in the allegations was that the appellant had connived with the principal offender in the theft of the money and failed to “speak up” on the matter in order to cover up for the conduct of the principal offender.

The appellant was taken before a disciplinary hearing officer who found him guilty and imposed the penalty of dismissal from employment.

However, the conviction and dismissal of the appellant were subsequently set aside by the NEC Appeals Board on appeal by the appellant which ordered the reinstatement of the appellant without loss of salary and benefits.

The respondent’s swift response was to appeal to the Labour Court which in turn overturned the decisions of the NEC Appeals Board and confirmed the appellant’s dismissal.

Aggrieved by the decision of the Labour Court, the appellant has now appealed to this Court.

THE APPEAL

The grounds of appeal as presented to this Court are framed as follows:

“1. 	The court a quo grossly erred and seriously misdirected itself on the facts in disregarding the findings of the Appeals Board and upholding the findings by the hearing officer which findings were based on erroneous and nonexistent facts and further ignoring overwhelming evidence led to the contrary.

2.  The court a quo erred and seriously misdirected itself in concluding that Tellers were not allowed to take cash into their cubicles.

3.  The court a quo erred and seriously misdirected itself in concluding that the video footage showed the appellant returning money to the principal offender, contrary to

evidence on record.

4.  The court a quo erred at law in concluding the appellant’s

guilt based on the preliminary findings of an

investigation report.”

I will to deal with the grounds of appeal seriatim.

THE FIRST GROUND OF APPEAL

Counsel for the respondent attacked the first ground   of appeal on the basis of ambiguity and lack of specificity. It was argued by Mr Magwaliba to our satisfaction that the ground as framed did not disclose the specific position of the judgment of the court a quo which the appellant sought to be impugned.

As correctly argued by the Respondent’s Counsel, it is a settled principle of our law that grounds of appeal must be set out in clear and specific terms in such a way that the parties understand without difficulty the issues which the court has to decide upon. Rule 44 (i) as read with rules 19 (i) and 59 of the Supreme Court Rules, 2018 lays down the legal foundation of grounds of appeal. A plethora of cases have clarified the law in this regard. See the case of Econet Wireless (Pvt) Ltd vs Tracto Mobile (Pty) Ltd & Anor; Dr Nobert Kunonga v The Church of the Province of Central Africa and a host of other similarly decided cases cited in the same judgment.

The appellant’s Counsel, Ms Mahlangu was not able to counter the arguments advanced by Mr Magwaliba in respect of the apparent defects in the first ground of appeal. Her concession that the ground of appeal was not well taken in our view was well made.

THE SECOND GROUND OF APPEAL

Basically, this ground of appeal alleged that the court a quo misdirected itself in concluding that tellers were not allowed to take cash into their cubicles. A reading of the court a quo’s judgment clearly shows that the court made a specific factual finding that tellers were not allowed to take their own cash into the cubicles. Based on this factual finding, the court a quo then inferred connivance between the appellant and the principal offender in exchanging the US$40.00, the amount by which the principal offender failed to balance her money on the day in question.

The appellant’s Counsel argued that the correct position which accords well with the evidence adduced in this case in fact points to the opposite of the factual findings of the court a quo on this issue. Whilst conceding that the court a quo had made an error in its findings on this point, the respondents nevertheless argued that the error was inconsequential as the general conduct of the appellant was suspicious and therefore the appellant remained guilty.

In advancing this point, respondent’s counsel argued that despite the appellant having seen the principal offender taking some money and handing it over to him, he neither reported this incident nor explained why he was given this money. Counsel further argued that the mere exchange of the money placed an onus on the appellant to “speak up” to his senior about this money.

It would seem that this ground of appeal is the principal and decisive one in this matter. I propose to deal with it in greater detail later in this judgment.

THE THIRD GROUND OF APPEAL

A perusal of the record of proceedings suggests that this ground of appeal was framed based on the video footage which failed to capture the principal offender receiving money from the appellant.

In our view, nothing much turns on this ground of appeal because in his recorded explanation the appellant admitted to have handed back the US$40.00 to the principal offender.  The returning of the money is therefore not in issue at all and this ground is consistent with the findings of the court a quo. The point is that this ground of appeal does not carry the appeal any further, it is inconsequential.

THE FOURTH GROUND OF APPEAL

The criticism raised in this ground of appeal by the Appellant’s Counsel is that the court a quo erred in grounding the guilt of the appellant on the basis of “an investigation report” instead of holistically looking at the evidence which included the written report made by the appellant.

The respondent’s counsel took the view that the investigation report, and it alone, was decisive because the appellant had not discredited that report. Counsel went on to argue that the appellant had not dissociated himself from that report.

A closer look at the court a quo’s judgment shows that indeed the court a quo was largely guided and influenced by the report in question despite the indisputable fact that the appellant had provided a written report which was not consistent with the investigation report.

THE LEGAL POSITION AS PERCEIVED

It is a time-honoured principle of our law which has been repeated and emphasized in a plethora of cases that an Appellate Court must not derive pleasure in interfering with the exercise of discretion of a lower court unless such exercise was afflicted by a serious misdirection or irrationality. It must be clear that the lower court made a genuine error in its assessment or appreciation of the evidence upon which its decision is hinged. KOSAH JA put it this way in the case of Hama vs National Railways of Zimbabwe.

“The general rule of law, as regards irrationality is that an Appellate Court will not interfere with a decision of a Trial Court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the Trial Court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon vs Rosenberg 1936 AD380 at 395 -7; Secretary of State for Education and Science vs Metropolitan Borough of Tamerside [1976] 3 ALL ER 665 (CA) at 671E-H; CCSU vs Ministry of the Civil Service [1984] 3 ALL ER 935 (HL) at 950h.”

ZIYAMBI JA reaffirmed this position of the law in the case of ZB Bank vs Maria Masunda by remarking as follows:

“It is a trite principle of our law that an Appellate Court should not interfere with an exercise of discretion by a lower court or Tribunal unless there has been a clear misdirection on the part of the lower court. In other words, the decision must have been irrational, in the sense that of being so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion”.

One also needs to be conscious of the kind of proof required to find liability given the nature of the allegations which confronted the appellant in this matter. After carrying out a 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 judgment of this Court, viz, Charles Marevesa v Telone (Pvt) Ltd the learned DCJ put the legal position as follows:

“[15] From the above analysis of relevant dicta, I am satisfied that the position spelt out in ZESA v Dera (supra) remains the correct position of the law. The burden of proof in labour proceedings is proof on a balance of probabilities. This is so regardless of whether or not the charge in point has criminal connotations. The Labour Court does not sit as a criminal court, and proceedings before it are civil in nature.”

It is within the context of these guiding principles that I must now look at the decision of the court a quo to see if it warrants any interference by this Court.

There can be no doubt that in the instant case and as already highlighted, the court a quo, in coming to the conclusion it did, concluded that tellers were not allowed to take their money into the bank’s cubicles. This position was clearly erroneous as it went against the weight of evidence which pointed to the contrary. There was no such restriction on the tellers and the court a quo’s decision was underpinned by a wrong factual finding which obviously clouded its mind in determining the guilt of the appellant.

It is quite significant that even the Respondent’s Counsel accepted that the court    a quo had premised its findings on a wrong factual finding. However, despite this, the Respondent’s Counsel urged the court to disregard this error and view it as inconsequential as he argued that the general conduct of the appellant projected him in bad light and he therefore remained guilty. Counsel criticized the appellant for receiving the money from the principal offender and failing to either “speak up” to his supervisor or to explain why he was given the money. For this, Counsel urged the court to still find the appellant guilty.

In my view this argument is not persuasive enough virtually for two reasons.

Firstly, once it is accepted that the court a quo made a fundamental error as it did in this case, then the appeal court remains at large. The appeal court cannot ignore the error and proceed to uphold the conviction of the appellant anyhow or on the basis of a consideration of issues to which the appellant was not asked to plead in the court a quo. Doing so would be missing one of the primary roles of an Appellate Court which requires it to inter alia consider the thought processes which guided the court a quo in its effort to arrive at an appropriate decision. The decision of the court a quo must be well anchored to survive the scrutiny of the appellate court.

Secondly and equally important is that in my view, it was wrong for the court a quo to premise its decision on the basis of “an investigation report” instead of holistically looking at the evidence which included a written report made by the appellant. The court a quo could not have just ignored that report without any reasonable justification or pretend that the report did not exist. As it turns out and contrary to Mr Magwaliba’s submissions that the appellant did not explain why he was given the money, the appellant in fact explained everything in his report. The appellant’s report was as follows:

“On the day in question 26 August 2015 after the back doors for the bank closed doors for the clients and done with my balancing, Fortunate asked me to keep his cash amounting to US$50.00 for her which she was to collect later. To me there was nothing wrong or bad about it as she normally sells some merchandise to her clients. I immediately returned the money to her without taking it out. In all this I did not suspect of any wrong doing or bad intentions…” (sic)

It is therefore not true that the appellant did not give a reasonable explanation for getting the money from the principal offender. It is clearly an exaggeration to say that the appellant should have been suspicious of the conduct of the principal offender to exchange money with the appellant when this conduct was not forbidden by the respondent. In my view the explanation given by the appellant was reasonable. What stands out most in the appellant’s report which the court a quo completely ignored is the fact that at the time the appellant was given the money by the principal offender, the appellant was unaware that the principal offender had either unlawfully taken the money or created a shortfall of US$40.00 in her balancing exercise.

The evidence presented shows that the shortfall was only discovered two days after the money had exchanged hands between the appellant and the principal offender. The appellant could not possibly have been expected to “speak up” on a suspicion which he was not aware of. The guilt of the appellant could only have been inferred if he was aware of the supposedly criminal or civil liability of the principal offender at the time the money changed hands. Whichever way one looks at this case, it is clear that the court a quo made an erroneous factual finding which informed its decision against the appellant as demonstrated above.

Secondly, in coming to the conclusion as it did, the court a quo further misdirected itself by relying on the “investigation report”, compiled by the respondent and completely overlooked the written report compiled by the appellant which spoke to his innocence and was at a tangent with the report.

It must be this analogous situation which GUBBAY CJ, had in mind when he remarked in the case of Barros & Anor vs Chimphonda as follows: -

“…It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant same consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing”

Clearly, given the cumulative effect of what I have highlighted the decision of the court a quo must be interfered with as it was informed by erroneous factual findings coupled with deliberate ignoring of other factors which were available to the court a quo which pointed to the innocence of the appellant.

Consequently, it is ordered as follows: -

1.  The appeal be and is hereby upheld with costs.

2. The decision of the court a quo is set aside and it is substituted with the following:

“The appeal be and is hereby dismissed with costs”

MAKARAU JA    	 		I agree

HLATSHWAYO JA		 	I agree

Messrs Munyaradzi Gwisai & Partners, appellant’s legal practitioners.

Kantor & Immerman, respondent’s legal practitioners