Samuel Mkozho v Standard Chartered Bank Zimbabwe Limited

### Preamble
Judgment No. SC 73/20
1
Civil Appeal No. SC 754/17
REPORTABLE (63)
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REPORTABLE   (63)

SAMUEL      MKOZHO

v

STANDARD     CHARTERED     BANK     ZIMBABWE     LIMITED

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKARAU JA & MAKONI JA

HARARE: JUNE 25, 2018 AND JUNE 5, 2020

M. Gwisai, for the appellant

T. Magwaliba, for the respondent

MAKONI JA: This is an appeal against the whole judgment of the Labour Court handed down on 16 December 2016 whereby it upheld the appeal by the respondent and set aside the decision of the NEC Appeals Board for The Banking Undertaking (the NEC Appeals Board). The latter had set aside the decision of the Disciplinary Committee dismissing the appellant.

FACTUAL BACKGROUND

The appellant was employed as a Personal Financial Consultant at the respondent’s Gweru branch. He was the National Workers’ Committee Chairperson as well as the Regional Branch Executive for the Banking Sector Trade Union (ZIBAWU).

On 17 September 2015 he was charged under category 11 D (1) of the respondent’s code of conduct for;

“any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract where such is not provided for under Category A, B, C.”

The basis of the charge was that the appellant had masterminded an act of defeating the course of justice in that on 17 September 2015 he connived with one Caroline Kadakure (Caroline) to plant money in Fortune Simbachako’s drawer (Fortune). Fortune, a bank teller, had been arrested, on 16 September 2015, for theft of $40.00 from the respondent.

It was the respondent’s case that the appellant hatched a plan with Caroline to plant the missing money in Fortune’s drawer. It was alleged that the Appellant had visited Fortune at the police station where he was detained. Upon his return to the bank he was captured on CCTV whilst talking to Caroline in a suspicious crouching position.

It was the appellant’s case that, in his capacity as a workers’ representative, the appellant had visited Fortune at the police station, outside working hours, to ascertain whether he was in need of the union’s assistance including possibly the hire of a legal practitioner.

A disciplinary hearing, before a Disciplinary Committee, was held. The appellant was found guilty of the offence and subsequently dismissed from employment. Aggrieved by the outcome he appealed to the Disciplinary and Grievances Committee. The committee was deadlocked and failed to come to a decision. The appellant thereafter approached the NEC Appeals Board which allowed the appeal. It ordered the reinstatement of the appellant without loss of salary and benefits. This decision prompted the respondent to lodge an appeal with the Labour Court. The Court upheld the appeal and set aside the decision of the NEC Appeals Board.

DETERMINATION OF THE COURT A QUO

It was the finding of the court a quo that the NEC Appeals board had no basis for interfering with the factual findings made by the Disciplinary Committee. Further, that there was no gross irrationality in the findings of fact by the Hearing Officer.

The court a quo also found that the NEC Appeals Board decided the matter on the basis of lack of audio recording from the CCTV. There was no indication that they had regard to the totality of the evidence that was presented to them that was considered by the hearing officer. It concluded that the findings of fact by the Hearing Officer, after considering the totality of the evidence, could not be said to be irrational, outrageous and in defiance of logic.

The court a quo further found that the NEC Appeals Board used the wrong standard of proof. At p 5 of the cyclostyled judgment the Judge a quo stated;

“Reference to the case of R v Blom (supra) shows that the standard of proof applied to the evidence was one of beyond a reasonable doubt as opposed to a balance of probabilities…”

The court a quo also found that the NEC Appeals Board misdirected itself in ordering reinstatement without the option of paying damages in lieu of reinstatement.

Consequently, the court a quo allowed the appeal. Aggrieved by the decision the appellant noted the appeal. The grounds of appeal are as follows:

THE GROUNDS OF APPEAL

The court a quo grossly erred and seriously misdirected itself on the facts in disregarding the findings by the Appeals Board and upholding the findings by the Hearing Officer which findings were based on erroneous and non-existent facts and further ignoring the overwhelming evidence led to the contrary.

The court a quo erred and seriously misdirected itself in concluding that the Appeals Board used and relied on the standard of proof used in criminal matters.

The court a quo erred at law in regarding as an appealable ground, the Appeals Board’s error in granting reinstatement without an alternative of damages in lieu of such reinstatement.

PROCEEDINGS BEFORE THIS COURT

Mr Magwaliba for the respondent raised a point in limine, at the hearing of, that the appellant’s first ground of appeal was meaningless. He stated that the ground was too wide and vague.

Mr Gwisai, after a spirited fight conceded that the appellant erred in not giving comprehensive facts in support of the ground of appeal. The concession was properly made.

It is well settled in our law that grounds of appeal must be concise. Rule 32(1) of the Supreme Court Rules is clear;

32. Grounds of Appeal

(1) The grounds of appeal shall be set forth concisely and in separate numbered paragraphs.

This Court has had occasion to explain the meaning of “concise” in the case of Econet Wireless v Trustco Mobile and anor SC 43/13. The court described concise as meaning “brief, but comprehensive in expression”

If a ground of appeal is not concise it defeats the whole purpose of having grounds of appeal which was set out in Songono v Minister of Law and Order 1996(4) SA 384 at p 385 where it was stated;

“The purpose of grounds of appeal is to cast the complaints of the appellant in such a manner that the respondent and the court faced with the appeal know what the complaint is.”

In casu, the ground of appeal does not cast the complaint of the appellant in a way that the respondent and the court can follow what his complaint is. For instance, the Labour Court is alleged to have erred and seriously misdirected itself on the facts in disregarding the findings of the Appeals Board. It does not specify which facts are being relied on. The appellant expects the respondent and the court to comb through the entire ruling of the Appeals Board and the entire judgment of the Labour Court to ascertain these findings of fact which the appellant has not bothered to point out to the court.

In view of the concession, by consent, ground of appeal number one is expunged from the record.

This left grounds of appeal number 2 and 3. From the two grounds, two issues arise for determination which are

Whether or not the NEC Appeal’s Board used the standard of proof used in criminal matters.

Whether an order of reinstatement without an option of damages is competent at law

WHETHER OR NOT THE NEC APPEALS BOARD USED THE STANDARD OF PROOF USED IN CRIMINAL MATTERS IN A CIVIL MATTER.

Mr Gwisai submitted that the court a quo erred when it made a finding that the NEC Appeals Board used the wrong standard of proof. It may have cited the case of R v Blom supra, in as far as circumstantial evidence is concerned but did not apply a standard higher than proof on a balance of probabilities. Before citing the case, the NEC Appeals Board correctly found that an essential element of the misconduct charge was not proved and that the respondent had failed to discharge its onus to prove the allegations on a balance of probabilities.

Mr Magwaliba, on the other hand, submitted that the NEC Appeals Board in relying upon the judgment in R v Blom supra, used the test applicable to the admission of circumstantial evidence in criminal matters which is that the inference drawn must be consistent with all proven facts and the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn.

The law regarding the test to be applied when relying on circumstantial evidence in civil matters is now settled.

In Ebrahim v Pittman No 1995 (1) ZLR 176 (H) at 176 the following was stated

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probability, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”

The issue was recently examined in detail by MAVANGIRA JA in British American Tobacco Zimbabwe vs Jonathan Chibaya SC 30/19 where she looked at several cases and texts on the issue. At p 7 of the cyclostyled judgment she stated:

“In Miller v Minister of Pensions [1942] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;

“It must carry a reasonable degree of probability but not so high as it is required in a criminal case. If the evidence is such that the tribunal can say, we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.”’ (emphasis added).

In the book, The South African Law of Evidence, 4th Edition, Hoffman and Zeffertt state as follows:

“In a civil case….if the facts permit more than one inference, the court must select the most plausible. If this favours the plaintiff, he is entitled to judgment. If inferences in favour of both parties are equally possible, the plaintiff has not discharged the burden of proof…

Selke J held in Govan v Skidmore that the selected inferences must ‘by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.’”

The learned authors expound further and explain that the court may however find that the contentions of the party who has produced no evidence are the more probable.

They state that what is weighed in the balance is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.

In the text Principles of Evidence, 4th edition, the authors Schwikkard and van der Merwe similarly state:

“In civil proceedings the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference. For example, in AA Onderlinge Assuransie-Associate Bpk v De Deer (1982 (2) SA 603 (A)) it was held that a plaintiff who relied on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference: he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.”

What comes up from the above authorities can be summarised as follows:

The inference sought to be drawn must always be consistent with all the proved facts.

It need not be the only reasonable inference.

The inference should be the readily apparent and acceptable inference or most probable inference, from a number of possible inferences.

This is to be compared with the second rule in Blom’s case supra where the proved facts must exclude every reasonable inference from them save the one sought to be drawn.

In dealing with the issue of circumstantial evidence and discussion the Blom’s case supra, the NEC Appeals Board concluded by saying

“Therefore the hearing Officer made an inference which was not consistent with the proved facts and was not the only reasonable inference that could be drawn from the circumstance.”

The use of the first cardinal rule of logic in the Blom’s case (supra) was correct in relation to the admissibility of circumstantial evidence in civil cases as the inference sought to be drawn must always be consistent with all the proved facts.

The use of the second cardinal rule, which only applies to criminal matters, was a misdirection on the part of the NEC Appeals Board.

All the hearing officer had to do was to make a finding based on an inference that was most readily apparent and acceptable or probable from the number of possible inferences. The court a quo was therefore correct in making a finding that reference to the Blom’s (supra) case shows that the standard of proof applied to the evidence by the NEC Appeals Board was one of proof beyond a reasonable doubt as opposed to proof on a balance of probabilities. It therefore interfered with that finding made by the NEC Appeals Board which resulted in it setting aside the conviction. The court a quo then proceeded to confirm the dismissal of the appellant. The ground of appeal therefore lacks merit and is hereby dismissed.

Having agreed with the court a quo that on the fact that the appellant had been properly found guilty of the misconduct charges by the hearing officer and fairly dismissed, it will not be necessary for me to consider the remaining ground of appeal.  This finding renders, in my view, moot the question whether an order for reinstatement without the alternative of damages would be competent at law as the court a quo confirmed the dismissal of the appellant.

In view of the above, the appeal, lacks merit and should be dismissed. There is no basis for departing from the general rule that costs follow the cause.

Accordingly, I make the following order.

The appeal is dismissed with costs.

GWAUNZA DCJ		I agree

MAKARAU JA 		I agree

Munyaradzi Gwisai & Partners, appellants’ legal practitioners

Kantor & Immerman, respondents’ legal practitioners