misconduct of employee http://www.zimlii.org/ en Heritage Insurance Group Limited v Matsika (468 of 2021) [2021] ZWHHC 468 (09 September 2021); http://www.zimlii.org/zw/judgment/harare-high-court/2021/468 <span class="field field--name-title field--type-string field--label-hidden">Heritage Insurance Group Limited v Matsika (468 of 2021) [2021] ZWHHC 468 (09 September 2021);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2322" hreflang="x-default">Action for payment of salary</a></div> <div class="field__item"><a href="/taxonomy/term/1584" hreflang="en">Legal action on behalf of a company</a></div> <div class="field__item"><a href="/taxonomy/term/1592" hreflang="en">Pleadings</a></div> <div class="field__item"><a href="/taxonomy/term/2137" hreflang="x-default">COMPANY</a></div> <div class="field__item"><a href="/taxonomy/term/2253" hreflang="x-default">extent to which parties are bound by pleadings</a></div> <div class="field__item"><a href="/taxonomy/term/1887" hreflang="en">Locus standi (standing)</a></div> <div class="field__item"><a href="/taxonomy/term/1979" hreflang="en">Employee Misconduct</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Sandra Muengwa</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/13/2021 - 06:50</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwhhc/2021/468/2021-zwhhc-468.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32106">2021-zwhhc-468.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwhhc/2021/468/2021-zwhhc-468.pdf" type="application/pdf; length=463818">2021-zwhhc-468.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HERITAGE INSURANCE GROUP LIMITED</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">versus</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">JOSEPHINE MATSIKA</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HIGH COURT OF ZIMBABWE</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">MUZOFA J</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HARARE, 30, 31 March, 1 April, 28, 29 April </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">&amp; 9 September 2021</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify; margin-bottom:13px"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">Civil Trial</span></span></span></b></span></span></span></p> <p style="text-align:justify; margin-bottom:13px"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">D Sanhanga,</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> for the plaintiff</span></span></span></span></span></p> <p style="text-align:justify; margin-bottom:13px"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">R T Mutero,</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> for the defendant</span></span></span></span></span></p> <p style="text-align:justify; margin-bottom:13px"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">MUZOFA J. The plaintiff issued out summons against the defendant claiming the following relief:</span></span></span></span></span></span></p> <ol><li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">US$25 000 being salaries the defendant unlawfully awarded herself </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">$3 956.85 unlawfully encashed leave days</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">$11 688 excess school fees claimed by the defendant</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">$5 000 school fees claimed for a child no longer in school. </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Return of a motor vehicle a Nissan Captiva registration number ACC 3926 that defendant illegally sold to herself </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Return of a laptop illegally taken from plaintiff by the applicant.</span></span></span></span></span></span></li> </ol><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The plaintiff also claimed interest on the amounts at the prescribed rate from the date of issue of summons to the date of full payment and costs of suit on an attorney and client scale.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In her plea, the defendant denied the claim and averred that the salary increments, and the school fees were approved by the plaintiff. Similarly, the plaintiff sold the motor vehicle to her.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:7.1pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">At the pre - trial conference the following issues were referred to trial,</span></span></span></span></span></span></p> <ol style="list-style-type:lower-roman"><li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not he defendant returned the laptop upon demand?</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant wrongfully and illegally sold to herself the Chevrolet Captiva motor vehicle? If so, what is the appropriate remedy? </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant, in collusion with the Chief Executive Officer, improperly, unlawfully and fraudulently allocated herself salary increments? If so, what is the extent of the financial prejudice to the Plaintiff?</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant encashed her leave days at the incorrect salary rate? If so, what is the extent of the financial prejudice to the plaintiff?</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant improperly, unlawfully and illegally acquired or fraudulently claimed school fees allowances from the plaintiff. If so, what is the extent of the financial prejudice to the plaintiff?</span></span></span></span></span></span></li> </ol><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">    iv.    Whether or not the defendant improperly, unlawfully and illegally acquired or fraudulently claimed school fees allowances from the plaintiff. If so, what is the extent of the financial prejudice to the plaintiff? </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The plaintiff’s case. </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The plaintiff called one witness Trueworth Kapamara ‘hereinafter referred to as Trueworth, the acting Managing Director. His evidence was as follows. The plaintiff is a group/ holding company whose subsidiaries are Heritage Insurance Company ‘HIC’, Heritage Life Ltd ‘HLL’ and Heritage Health Fund ‘HHF’. The plaintiff has no substantive business, but it hires employees in administration, human resources and finance. It assigned human resources on a shared basis among its subsidiaries. The arrangement was that at any given time the most performing subsidiary would be responsible for the employees’ salaries despite the fact of the shared basis work. At the relevant time the employees’ salaries and benefits were paid by HLL.</span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The defendant was employed by the plaintiff as the General Manager Finance reporting to the Chief Executive Officer ‘the CEO’. The defendant’s contract set out her benefits. According to the plaintiff’s Human Resources Policy, the defendant’s salaries and benefits could only be reviewed by the plaintiff’s board of directors. An internal audit was conducted for the period January 2017 to April 2018 which uncovered certain discrepancies that resulted in this claim. The internal audit revealed that the defendant connived with the then CEO and unlawfully awarded herself salary increments and encashed leave days at the unapproved salary rate. She also awarded herself school fees allowances as claimed. She was not entitled to a school fees benefit in terms of her contract. No board approval was sought and granted for such payments. She also unlawfully used her position and illegally sold herself the motor vehicle. The plaintiff’s bundle of documents was accepted into evidence through the witness.   </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            Under cross examination Trueworth seemed to recant his evidence in chief .He conceded that the defendant did not sell the motor vehicle to herself neither did she award herself the salary increment nor the school fees allowances. It is in the re-examination that he explained that the import of the term that the defendant awarded herself the salary increments and sold the car to herself is that she was involved in the processes and indirectly influenced them to the plaintiff’s prejudice. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In respect of the salary increments a point was made that the salary increments were approved by the HLL board which subsidiary was responsible for the defendant’s salary and benefits. In addition the HLL board had approved the school fees allowances. Trueworth insisted that the defendant being an employee of the plaintiff her salary and benefits were supposed to be approved by the plaintiff’s board. The HLL board was supposed to recommend to the plaintiff board for approval. The CEO and the defendant were responsible for the administrative processes for making such recommendations. They did not seek such approval but proceeded to effect the salary and benefits adjustments. The defendant’s benefits were approved by the CEO who had no authority to approve such increments. The two connived to illegally award the defendant the benefits.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"> He was asked if the plaintiff was the proper claimant in the circumstances where the salaries and benefits were drawn from HLL a company separate from it. He insisted that the plaintiff was the proper claimant as the holding company. The plaintiff lost revenue that was supposed to be remitted to the plaintiff as a result of the defendant’s conduct.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The witness denied the numerous allegations pertaining to the plaintiff’s chequered corporate governance system. Without committing as to whether the plaintiff had a substantive board of directors the witness said the plaintiff’s board did not sit at any given time during the relevant period. He also conceded that other subsidiaries were non performing entities and had legal challenges. </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            Defendant’s case.</span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The defendant gave evidence. She averred that the plaintiff is not a holding company it remained an idea. The plaintiff and its alleged subsidiaries were separate and distinct companies. The shareholders were different. Most significantly, the plaintiff held no shares in HLL. The plaintiff had no structures, no assets, no liabilities, no bank account and no board of directors. There was no approval from ZIMRA for the plaintiff to be registered as a group. Even if her employment contract was with the plaintiff, her salary and benefits were paid by HLL in the discharge of her duties .She did finances for all the subsidiaries. The HLL board properly authorized the salary increment, the school fees allowances and the sale of the motor vehicle. At all times the CEO would communicate with her on the adjustments. At no time did she award herself any benefit. Although the Human Resources Policy existed it was not fully implemented since the plaintiff had not legally become a holding company. There were outstanding legal requirements to be met before it became as such. She denied conniving with the CEO for the awards as alleged. Further to that, she indicated that the HLL remuneration committee (Remco) at all times met, considered the issues and made recommendations for the payments. The CEO only advised her after such meetings. In respect of the allegations that she and the CEO influenced proceedings in the Remco as they were the majority she pointed out that the issues were fully considered and other members were not prevailed upon. She denied conniving with the CEO. She referred the court to her correspondences to the CEO and other board members in which she complained and pointed some of the misdemeanours taking place in the subsidiaries fronted by the chairperson and at times with the CEO. When she raised the corporate governance issues and all the corporate machinations she was victimised and the working conditions became unbearable. Eventually she resigned. This claim is the epitome of the victimisation.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Under cross examination she made concessions that it is the contract of employment with the plaintiff that gave rise to her performing duties within the subsidiaries, so this was a shared services arrangement. She also admitted that the plaintiff was supposed to receive management fees although it was never remitted. She also conceded that the salary increments, the school fees allowances were recommended by the HLL Remco but were not approved by the HLL board. In respect of the motor vehicle although she insisted the plaintiff sold the motor vehicle to her, it was clear that the sale was not done in accordance with the motor vehicle policy.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">At the close of the defendant’s case both legal practitioners made oral closing submissions. I shall revert to them later in the judgment if necessary. I asked both counsel if the question whether the plaintiff is the proper claimant is not relevant in the determination of this case. <i>Ms Sanhanga</i> for the plaintiff was non-committal although she agreed with the court that the issue is relevant she raised the point that it would be prejudicial to the plaintiff since it was not pleaded. Despite the protestation I directed both legal practitioners to file written submissions on whether the plaintiff is the proper claimant in this case. I am grateful to the defendant’s legal practitioner who filed the written submissions timeously .Nothing was filed for the plaintiff the court could not wait forever for the submissions. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Indeed the issue was not pleaded but it arose during the course of the trial. The court believes it is important. It is trite that a court is confined to the pleadings as set out by the parties. The position is not cast in stone, there are exceptions to the rule under which a court can determine on an issue that has not been pleaded. I am  fortified in taking this approach by the guidance in <i>Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt0 Ltd<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></b></span></span></a></i>  where the court addressed the issue to some extent  citing  relevant case law and concluded at paragraphs 31.3-4 that:</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify; text-indent:3.0pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">“In <i>Sager’s Motors (Pvt) Ltd v Patel </i>1968 (2) RLR 267 (A), Lewis AJA accepted that the above remarks correctly reflected the position of the law in this country. At 274 A-B he stated</span></span></span></span></p> <p style="margin-left:96px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">‘The ratio decidendi of the cases …referred to above is that where there has been a full  and thorough investigation into all the circumstances of the case and a party has had every facility to place all the facts before the trial court, the court will not decline to adjudicate on an issue thus fully canvassed simply because the pleadings have not explicitly covered it.’</span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">The above remarks were cited with approval by this court in <i>Guardian Security Services (Pvt) (Ltd) v ZBC</i> 2002 (1) ZLR (S) at 5D-H  and 6 A-B.  That a court can determine an issue that is fully canvassed but not pleaded is therefore now settled in this jurisdiction.’</span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In this case I considered that the issue as to who should be the claimant in this case was raised under cross examination of the plaintiff’s witness, Trueworth. He set out the factual basis why he believed the plaintiff is the proper claimant .The plaintiff’s legal practitioner had opportunity to canvass any relevant issues from this witness under re-examination. The defendant also addressed the issue in her case. I gave both legal practitioners an opportunity to file written submissions on the issue to address the salient points of law on the issue. The failure by the plaintiff’s legal practitioners to file written submissions on the issue does not detract from the fact that the court availed such an opportunity. Infact it was a disservice to the plaintiff’s case. I am of the firm view that nothing stands in the way of the court to determine the issue even if it was not specifically pleaded.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The issue that arise is the plaintiff’s <i>locus standi in judicio</i> to sue. <i>Locus standi in judicio </i>is the right, ability or capacity to bring legal proceedings in a court of law. The right can be justified by showing that one has a direct and substantial interest in the subject matter. ‘Such an interest is a legal interest that could be prejudicially affected by the judgment of the court’<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]</span></span></span></span></span></a>. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The plaintiff justified its <i>locus standi</i> that it is a holding company. Its subsidiaries are required to remit management fees to it. The defendant’s conduct diminished one of its subsidiaries’ profit thereby affecting the amounts for remittal to   it. The defendant denied that the plaintiff is a holding company. Without necessarily making a finding on whether the plaintiff is a holding company, I proceed to address the issue on the basis of the plaintiff’s claim that it is a holding company or a group as the terms were used interchangeably.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">A company is considered a holding company if it has a subsidiary company<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a>. A company is a subsidiary of another where the other company is its member and controls the composition of its board or holds more than half of its equity share capital<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><sup><sup><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[4]</span></span></span></sup></sup></a>. Despite the unit established as a holding company the separate legal personality of each individual company is not completely lost. The common law principle that a company is a separate legal entity is still applicable <a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[5]</span></span></span></span></span></a>.Subject to legal exceptions the subsidiary company does not lose its legal personality. In <i>Charterbridge Corporation Ltd </i>v<i> Llyods Bank Ltd</i> <a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[6]</span></span></span></span></span></a>  the court considered the issue and noted that,</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">‘Each company in the group is a separate legal entity and the directors of a particular company are not entitled to sacrifice the interest of that company’</span></span></span></span></p> <p style="margin-left:48px; text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In <i>Wambach </i>v <i>Maizecor Industries (Edms) Bpk</i><a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[7]</span></span></span></span></span></a>  a holding company had successfully sued for damages arising from a collision between a vehicle owned by a third party and  a vehicle owned by its subsidiary company. On appeal the claim was dismissed on the basis that the holding company was not the owner of the vehicle and therefore had no right to it.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">It seems then that the subsidiary company must sue to recover its property. Since the holding company is a separate legal persona it cannot step into the shoes of the subsidiary company unless the claim falls under the acceptable legal exceptions.  </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The evidence before the court is clear that the defendant’s salaries and benefits were drawn from HLL. It is irrelevant that this was an arrangement by the plaintiff. What is important is that HLL is a separate company from the plaintiff. In its claim the plaintiff does not state that it is suing on behalf of HLL. It sues in its capacity yet the salaries and benefits were not drawn from it. It did not suffer any prejudice from the defendant’s conduct. If indeed HLL was required to pay management fees to the plaintiff, such a claim should be made against HLL and not the defendant. For all intents and purposes the aggrieved party here is HLL and not the defendant. Assuming the claim succeeds, the plaintiff would be awarded monies and the motor vehicle that did not belong to it. The vehicle in question was not registered in the name of the plaintiff. It did not belong to the plaintiff. That demonstrates that the plaintiff has no direct or substantial interest in the matter. It has no <i>locus standi</i>. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">My finding on the issue disposes of the matter. It then becomes unnecessary to address the merits of the case.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Accordingly the following order is made.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The application is dismissed with costs.  </span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> <i>Caleb Mucheche &amp; Partners Law Chambers</i>, applicant’s legal practitioners</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Moyo Jera Legal Practitioners</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">, respondent’s legal practitioners</span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"> </span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <div>  <hr align="left" size="1" width="33%" /><div id="ftn1"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[1]</span></span></span></span></span></a> 2018 (1) ZLR 446 (S)</span></span></p> </div> <div id="ftn2"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[2]</span></span></span></span></span></a> Makarudze &amp; Another v Bungu &amp; Ors 2015 (1) ZLR 15</span></span></p> </div> <div id="ftn3"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[3]</span></span></span></span></span></a> Section 143 (5) of the  Companies Act Chapter 24:03</span></span></p> </div> <div id="ftn4"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[4]</span></span></span></span></span></a> Section 143(1) &amp;(3) of the Act</span></span></p> </div> <div id="ftn5"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[5]</span></span></span></span></span></a> Salomon v Salomon &amp; Co Ltd 1897 AC 22</span></span></p> </div> <div id="ftn6"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[6]</span></span></span></span></span></a> 1969 2 AII ER 1185</span></span></p> </div> <div id="ftn7"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[7]</span></span></span></span></span></a> 1993 (2) SA 669 (A) cited in Hahlo’s South African Company Law through cases, 1999, Juta </span></span></p> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-77bf2ba8ad99e51349c81201c706fca09e5da18047b889659fd13d6107e14ffd"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HERITAGE INSURANCE GROUP LIMITED</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">versus</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">JOSEPHINE MATSIKA</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HIGH COURT OF ZIMBABWE</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">MUZOFA J</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">HARARE, 30, 31 March, 1 April, 28, 29 April </span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">&amp; 9 September 2021</span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify; margin-bottom:13px"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">Civil Trial</span></span></span></b></span></span></span></p> <p style="text-align:justify; margin-bottom:13px"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">D Sanhanga,</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> for the plaintiff</span></span></span></span></span></p> <p style="text-align:justify; margin-bottom:13px"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">R T Mutero,</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> for the defendant</span></span></span></span></span></p> <p style="text-align:justify; margin-bottom:13px"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">MUZOFA J. The plaintiff issued out summons against the defendant claiming the following relief:</span></span></span></span></span></span></p> <ol><li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">US$25 000 being salaries the defendant unlawfully awarded herself </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">$3 956.85 unlawfully encashed leave days</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">$11 688 excess school fees claimed by the defendant</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">$5 000 school fees claimed for a child no longer in school. </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Return of a motor vehicle a Nissan Captiva registration number ACC 3926 that defendant illegally sold to herself </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Return of a laptop illegally taken from plaintiff by the applicant.</span></span></span></span></span></span></li> </ol><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The plaintiff also claimed interest on the amounts at the prescribed rate from the date of issue of summons to the date of full payment and costs of suit on an attorney and client scale.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In her plea, the defendant denied the claim and averred that the salary increments, and the school fees were approved by the plaintiff. Similarly, the plaintiff sold the motor vehicle to her.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:7.1pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">At the pre - trial conference the following issues were referred to trial,</span></span></span></span></span></span></p> <ol style="list-style-type:lower-roman"><li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not he defendant returned the laptop upon demand?</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant wrongfully and illegally sold to herself the Chevrolet Captiva motor vehicle? If so, what is the appropriate remedy? </span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant, in collusion with the Chief Executive Officer, improperly, unlawfully and fraudulently allocated herself salary increments? If so, what is the extent of the financial prejudice to the Plaintiff?</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant encashed her leave days at the incorrect salary rate? If so, what is the extent of the financial prejudice to the plaintiff?</span></span></span></span></span></span></li> <li style="margin-left:17px; text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Whether or not the defendant improperly, unlawfully and illegally acquired or fraudulently claimed school fees allowances from the plaintiff. If so, what is the extent of the financial prejudice to the plaintiff?</span></span></span></span></span></span></li> </ol><p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">    iv.    Whether or not the defendant improperly, unlawfully and illegally acquired or fraudulently claimed school fees allowances from the plaintiff. If so, what is the extent of the financial prejudice to the plaintiff? </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The plaintiff’s case. </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The plaintiff called one witness Trueworth Kapamara ‘hereinafter referred to as Trueworth, the acting Managing Director. His evidence was as follows. The plaintiff is a group/ holding company whose subsidiaries are Heritage Insurance Company ‘HIC’, Heritage Life Ltd ‘HLL’ and Heritage Health Fund ‘HHF’. The plaintiff has no substantive business, but it hires employees in administration, human resources and finance. It assigned human resources on a shared basis among its subsidiaries. The arrangement was that at any given time the most performing subsidiary would be responsible for the employees’ salaries despite the fact of the shared basis work. At the relevant time the employees’ salaries and benefits were paid by HLL.</span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The defendant was employed by the plaintiff as the General Manager Finance reporting to the Chief Executive Officer ‘the CEO’. The defendant’s contract set out her benefits. According to the plaintiff’s Human Resources Policy, the defendant’s salaries and benefits could only be reviewed by the plaintiff’s board of directors. An internal audit was conducted for the period January 2017 to April 2018 which uncovered certain discrepancies that resulted in this claim. The internal audit revealed that the defendant connived with the then CEO and unlawfully awarded herself salary increments and encashed leave days at the unapproved salary rate. She also awarded herself school fees allowances as claimed. She was not entitled to a school fees benefit in terms of her contract. No board approval was sought and granted for such payments. She also unlawfully used her position and illegally sold herself the motor vehicle. The plaintiff’s bundle of documents was accepted into evidence through the witness.   </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            Under cross examination Trueworth seemed to recant his evidence in chief .He conceded that the defendant did not sell the motor vehicle to herself neither did she award herself the salary increment nor the school fees allowances. It is in the re-examination that he explained that the import of the term that the defendant awarded herself the salary increments and sold the car to herself is that she was involved in the processes and indirectly influenced them to the plaintiff’s prejudice. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In respect of the salary increments a point was made that the salary increments were approved by the HLL board which subsidiary was responsible for the defendant’s salary and benefits. In addition the HLL board had approved the school fees allowances. Trueworth insisted that the defendant being an employee of the plaintiff her salary and benefits were supposed to be approved by the plaintiff’s board. The HLL board was supposed to recommend to the plaintiff board for approval. The CEO and the defendant were responsible for the administrative processes for making such recommendations. They did not seek such approval but proceeded to effect the salary and benefits adjustments. The defendant’s benefits were approved by the CEO who had no authority to approve such increments. The two connived to illegally award the defendant the benefits.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif"> He was asked if the plaintiff was the proper claimant in the circumstances where the salaries and benefits were drawn from HLL a company separate from it. He insisted that the plaintiff was the proper claimant as the holding company. The plaintiff lost revenue that was supposed to be remitted to the plaintiff as a result of the defendant’s conduct.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The witness denied the numerous allegations pertaining to the plaintiff’s chequered corporate governance system. Without committing as to whether the plaintiff had a substantive board of directors the witness said the plaintiff’s board did not sit at any given time during the relevant period. He also conceded that other subsidiaries were non performing entities and had legal challenges. </span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            Defendant’s case.</span></span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">            The defendant gave evidence. She averred that the plaintiff is not a holding company it remained an idea. The plaintiff and its alleged subsidiaries were separate and distinct companies. The shareholders were different. Most significantly, the plaintiff held no shares in HLL. The plaintiff had no structures, no assets, no liabilities, no bank account and no board of directors. There was no approval from ZIMRA for the plaintiff to be registered as a group. Even if her employment contract was with the plaintiff, her salary and benefits were paid by HLL in the discharge of her duties .She did finances for all the subsidiaries. The HLL board properly authorized the salary increment, the school fees allowances and the sale of the motor vehicle. At all times the CEO would communicate with her on the adjustments. At no time did she award herself any benefit. Although the Human Resources Policy existed it was not fully implemented since the plaintiff had not legally become a holding company. There were outstanding legal requirements to be met before it became as such. She denied conniving with the CEO for the awards as alleged. Further to that, she indicated that the HLL remuneration committee (Remco) at all times met, considered the issues and made recommendations for the payments. The CEO only advised her after such meetings. In respect of the allegations that she and the CEO influenced proceedings in the Remco as they were the majority she pointed out that the issues were fully considered and other members were not prevailed upon. She denied conniving with the CEO. She referred the court to her correspondences to the CEO and other board members in which she complained and pointed some of the misdemeanours taking place in the subsidiaries fronted by the chairperson and at times with the CEO. When she raised the corporate governance issues and all the corporate machinations she was victimised and the working conditions became unbearable. Eventually she resigned. This claim is the epitome of the victimisation.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Under cross examination she made concessions that it is the contract of employment with the plaintiff that gave rise to her performing duties within the subsidiaries, so this was a shared services arrangement. She also admitted that the plaintiff was supposed to receive management fees although it was never remitted. She also conceded that the salary increments, the school fees allowances were recommended by the HLL Remco but were not approved by the HLL board. In respect of the motor vehicle although she insisted the plaintiff sold the motor vehicle to her, it was clear that the sale was not done in accordance with the motor vehicle policy.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">At the close of the defendant’s case both legal practitioners made oral closing submissions. I shall revert to them later in the judgment if necessary. I asked both counsel if the question whether the plaintiff is the proper claimant is not relevant in the determination of this case. <i>Ms Sanhanga</i> for the plaintiff was non-committal although she agreed with the court that the issue is relevant she raised the point that it would be prejudicial to the plaintiff since it was not pleaded. Despite the protestation I directed both legal practitioners to file written submissions on whether the plaintiff is the proper claimant in this case. I am grateful to the defendant’s legal practitioner who filed the written submissions timeously .Nothing was filed for the plaintiff the court could not wait forever for the submissions. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Indeed the issue was not pleaded but it arose during the course of the trial. The court believes it is important. It is trite that a court is confined to the pleadings as set out by the parties. The position is not cast in stone, there are exceptions to the rule under which a court can determine on an issue that has not been pleaded. I am  fortified in taking this approach by the guidance in <i>Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt0 Ltd<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><b><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[1]</span></span></span></b></span></span></a></i>  where the court addressed the issue to some extent  citing  relevant case law and concluded at paragraphs 31.3-4 that:</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify; text-indent:3.0pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">“In <i>Sager’s Motors (Pvt) Ltd v Patel </i>1968 (2) RLR 267 (A), Lewis AJA accepted that the above remarks correctly reflected the position of the law in this country. At 274 A-B he stated</span></span></span></span></p> <p style="margin-left:96px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">‘The ratio decidendi of the cases …referred to above is that where there has been a full  and thorough investigation into all the circumstances of the case and a party has had every facility to place all the facts before the trial court, the court will not decline to adjudicate on an issue thus fully canvassed simply because the pleadings have not explicitly covered it.’</span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">The above remarks were cited with approval by this court in <i>Guardian Security Services (Pvt) (Ltd) v ZBC</i> 2002 (1) ZLR (S) at 5D-H  and 6 A-B.  That a court can determine an issue that is fully canvassed but not pleaded is therefore now settled in this jurisdiction.’</span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In this case I considered that the issue as to who should be the claimant in this case was raised under cross examination of the plaintiff’s witness, Trueworth. He set out the factual basis why he believed the plaintiff is the proper claimant .The plaintiff’s legal practitioner had opportunity to canvass any relevant issues from this witness under re-examination. The defendant also addressed the issue in her case. I gave both legal practitioners an opportunity to file written submissions on the issue to address the salient points of law on the issue. The failure by the plaintiff’s legal practitioners to file written submissions on the issue does not detract from the fact that the court availed such an opportunity. Infact it was a disservice to the plaintiff’s case. I am of the firm view that nothing stands in the way of the court to determine the issue even if it was not specifically pleaded.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The issue that arise is the plaintiff’s <i>locus standi in judicio</i> to sue. <i>Locus standi in judicio </i>is the right, ability or capacity to bring legal proceedings in a court of law. The right can be justified by showing that one has a direct and substantial interest in the subject matter. ‘Such an interest is a legal interest that could be prejudicially affected by the judgment of the court’<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[2]</span></span></span></span></span></a>. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The plaintiff justified its <i>locus standi</i> that it is a holding company. Its subsidiaries are required to remit management fees to it. The defendant’s conduct diminished one of its subsidiaries’ profit thereby affecting the amounts for remittal to   it. The defendant denied that the plaintiff is a holding company. Without necessarily making a finding on whether the plaintiff is a holding company, I proceed to address the issue on the basis of the plaintiff’s claim that it is a holding company or a group as the terms were used interchangeably.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">A company is considered a holding company if it has a subsidiary company<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[3]</span></span></span></span></span></a>. A company is a subsidiary of another where the other company is its member and controls the composition of its board or holds more than half of its equity share capital<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4"><sup><sup><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[4]</span></span></span></sup></sup></a>. Despite the unit established as a holding company the separate legal personality of each individual company is not completely lost. The common law principle that a company is a separate legal entity is still applicable <a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[5]</span></span></span></span></span></a>.Subject to legal exceptions the subsidiary company does not lose its legal personality. In <i>Charterbridge Corporation Ltd </i>v<i> Llyods Bank Ltd</i> <a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[6]</span></span></span></span></span></a>  the court considered the issue and noted that,</span></span></span></span></span></span></p> <p style="margin-left:48px; text-align:justify"><span style="font-size:11pt"><span style="line-height:115%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-family:&quot;Times New Roman&quot;,serif" xml:lang="EN-ZW">‘Each company in the group is a separate legal entity and the directors of a particular company are not entitled to sacrifice the interest of that company’</span></span></span></span></p> <p style="margin-left:48px; text-align:justify"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">In <i>Wambach </i>v <i>Maizecor Industries (Edms) Bpk</i><a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Times New Roman&quot;,serif">[7]</span></span></span></span></span></a>  a holding company had successfully sued for damages arising from a collision between a vehicle owned by a third party and  a vehicle owned by its subsidiary company. On appeal the claim was dismissed on the basis that the holding company was not the owner of the vehicle and therefore had no right to it.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">It seems then that the subsidiary company must sue to recover its property. Since the holding company is a separate legal persona it cannot step into the shoes of the subsidiary company unless the claim falls under the acceptable legal exceptions.  </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">The evidence before the court is clear that the defendant’s salaries and benefits were drawn from HLL. It is irrelevant that this was an arrangement by the plaintiff. What is important is that HLL is a separate company from the plaintiff. In its claim the plaintiff does not state that it is suing on behalf of HLL. It sues in its capacity yet the salaries and benefits were not drawn from it. It did not suffer any prejudice from the defendant’s conduct. If indeed HLL was required to pay management fees to the plaintiff, such a claim should be made against HLL and not the defendant. For all intents and purposes the aggrieved party here is HLL and not the defendant. Assuming the claim succeeds, the plaintiff would be awarded monies and the motor vehicle that did not belong to it. The vehicle in question was not registered in the name of the plaintiff. It did not belong to the plaintiff. That demonstrates that the plaintiff has no direct or substantial interest in the matter. It has no <i>locus standi</i>. </span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">My finding on the issue disposes of the matter. It then becomes unnecessary to address the merits of the case.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="line-height:150%"><span style="font-family:&quot;Times New Roman&quot;,serif">Accordingly the following order is made.</span></span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">The application is dismissed with costs.  </span></span></span></span></span></p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"> </p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif"> <i>Caleb Mucheche &amp; Partners Law Chambers</i>, applicant’s legal practitioners</span></span></span></span></span></p> <p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:normal"><span style="font-family:Calibri,sans-serif"><i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">Moyo Jera Legal Practitioners</span></span></i><span lang="EN-ZW" style="font-size:12.0pt" xml:lang="EN-ZW"><span style="font-family:&quot;Times New Roman&quot;,serif">, respondent’s legal practitioners</span></span></span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:Calibri,sans-serif"> </span></span></span></p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <p style="text-align:justify; text-indent:36.0pt"> </p> <div>  <hr align="left" size="1" width="33%" /><div id="ftn1"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[1]</span></span></span></span></span></a> 2018 (1) ZLR 446 (S)</span></span></p> </div> <div id="ftn2"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[2]</span></span></span></span></span></a> Makarudze &amp; Another v Bungu &amp; Ors 2015 (1) ZLR 15</span></span></p> </div> <div id="ftn3"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[3]</span></span></span></span></span></a> Section 143 (5) of the  Companies Act Chapter 24:03</span></span></p> </div> <div id="ftn4"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[4]</span></span></span></span></span></a> Section 143(1) &amp;(3) of the Act</span></span></p> </div> <div id="ftn5"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[5]</span></span></span></span></span></a> Salomon v Salomon &amp; Co Ltd 1897 AC 22</span></span></p> </div> <div id="ftn6"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[6]</span></span></span></span></span></a> 1969 2 AII ER 1185</span></span></p> </div> <div id="ftn7"> <p class="MsoFootnoteText"><span style="font-size:10pt"><span style="font-family:Calibri,sans-serif"><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7"><span class="MsoFootnoteReference" style="vertical-align:super"><span class="MsoFootnoteReference" style="vertical-align:super"><span lang="EN-ZW" style="font-size:10.0pt" xml:lang="EN-ZW"><span style="line-height:115%"><span style="font-family:&quot;Calibri&quot;,sans-serif">[7]</span></span></span></span></span></a> 1993 (2) SA 669 (A) cited in Hahlo’s South African Company Law through cases, 1999, Juta </span></span></p> </div> </div></span></div></div> </div> </div> Mon, 13 Sep 2021 06:50:36 +0000 Sandra Muengwa 11146 at http://www.zimlii.org Drum City (Private) Limited v Garudzo (SC 57 of 2018, Civil Appeal 937 of 2017) [2018] ZWSC 57 (25 September 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/57 <span class="field field--name-title field--type-string field--label-hidden">Drum City (Private) Limited v Garudzo (SC 57 of 2018, Civil Appeal 937 of 2017) [2018] ZWSC 57 (25 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/57/2018-zwsc-57.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=51045">2018-zwsc-57.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/57/2018-zwsc-57.pdf" type="application/pdf; length=278123">2018-zwsc-57.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol><li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-0ceb6a2f40d00a6d35922fa9347de541a8fb25b2962fe1821ac0c6aaf631e49a"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><a name="_Hlk507840611" id="_Hlk507840611"><strong>REPORTABLE </strong></a><strong>       (47)  </strong></p> <p> </p> <p><strong>DRUM     CITY     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>BRENDA     GARUDZO</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE, JUNE 26, 2018 &amp; SEPTEMBER 25, 2018</strong></p> <p> </p> <p><em>V. Shamu</em>, for the appellant</p> <p>No appearance, for respondent</p> <p>             </p> <p><strong>GWAUNZA DCJ</strong></p> <p>[1]        This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant’s former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain acts of misconduct, including theft.</p> <p>           </p> <p><strong>FACTUAL CONSPECTUS</strong></p> <p>[2]        The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3 986-61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.</p> <p> </p> <p>[3]        Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of s 93 of the Labour Act [<em>Chapter 28:01</em>], (“the Act”). The dispute was placed before the respondent for a hearing. It was her case that no proper investigations were conducted into the allegations levelled against her and further, that she was not granted the right to be heard before she was summarily dismissed. She thus claimed damages for unlawful dismissal totalling US$23 253-34.</p> <p> </p> <p>[4]        Before the labour officer, the parties did not agree on Ms Khan’s monthly salary, as the appellant alleged that it was US$750-00 while Ms Khan argued that it was US$1500 - 00. The respondent ruled in favour of Ms Khan on this point and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages <em>in lieu</em> of reinstatement amounting to a total of US$9000-00.</p> <p> </p> <p>[5]        Subsequently, the labour officer applied to the Labour Court in terms of s 93 (5a) of the Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings. The appellant opposed the application but the court <em>a quo</em> after hearing oral argument from the appellant, granted an order confirming the ruling.</p> <p> </p> <p><strong>PROCEEDINGS BEFORE THIS COURT </strong></p> <p>[6]        The appellant was aggrieved by the decision of the court <em>a quo</em> and has appealed against it to this Court. It argues in the main that the court <em>a quo</em> erred in simply confirming the respondent’s award to Ms Khan of US$9 000-00 as damages without fully addressing the principles of law to be applied thereto. It further argued that the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property and in addition, had failed to avail herself for the hearing which led to her dismissal.</p> <p> </p> <p>[7]        The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing. The court observed that the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.  Ms Khan, was not cited in the appeal before this Court. Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.</p> <p>           </p> <p><strong>SECTION 93(5a) – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS</strong></p> <p>[8]        Counsel for the appellant rightly conceded that the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court <em>a quo</em> and in this Court. Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.  The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of s 93 (5a) of the Act. The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer’s draft ruling in terms of s 93(5b) of the Act.</p> <p> </p> <p>[9]        It is noted that prior to the Labour Amendment Act No. 5 of 2015, labour disputes of right would go before a labour officer for conciliation, and if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard. Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party on the other hand, had the right to appeal against the award to the Labour Court.</p> <p> </p> <p>The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of s 93 (5a) and (5b) of the Labour Act was meant to address this mischief.</p> <p> </p> <p>[10]      Subsections 93(5a) and (5b) provide as follows:</p> <p>(5a)      A labour officer who makes a ruling and order in terms of ss (5)(c) shall as                       soon as practicable-</p> <p>(a)        <strong>make an affidavit to that effect incorporating</strong>, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and</p> <p>(b)       <strong>lodge, on due notice to the employer or other person against</strong> <strong>whom</strong>                  the ruling and order is made  (“the respondent”), an application to the               Labour  Court, together with the affidavit and a claim for the costs of                    the application (which shall not exceed such amount as may be                               prescribed), <strong>for an order directing the respondent</strong> by a certain                                     day (the “restitution day”) not being earlier than thirty days from the                      date that the application is set down for hearing (the                                                 “return day” of the application) <strong>to do or pay what the labour officer                 ordered</strong> under ss (5)(c)(ii) and to pay the costs of the application.</p> <p>(5b)      <strong>If, on the return day of the application, the respondent makes no          appearance</strong> or, after a hearing, the Labour Court <strong>grants the application                 for the order with or without amendment</strong>, the  labour officer concerned    shall,    if the <strong>respondent does not comply fully or at all with the order            by        the restitution day, submit the order for registration </strong>to whichever court    would have had  jurisdiction to make such an order had the matter been     determined by             it, and thereupon the order shall have effect, for purposes of            enforcement, of a civil judgment of the appropriate court. (<em>my emphasis</em>)</p> <p> </p> <p>[11]      My interpretation of the two provisions cited suggests the following procedural steps;</p> <p>a)         the labour officer, after making a ruling in terms s 93(5)(c)(ii) of the Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based,</p> <p>b)         the labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).</p> <p>c)         the labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.</p> <p>d)         should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.</p> <p>e)         on the date of hearing, (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment,</p> <p>f)         thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order, (obtained in default of appearance by the respondent, or after a hearing by the Labour Court), for registration;</p> <p>g)         upon submission of the order to the relevant court for registration, it shall have the same effect for purposes of enforcement, as any civil judgment of that court.</p> <p> </p> <p> </p> <p>[12]     It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling      made against an employee. That this is the case is left in no doubt by the wording of s 93(5)(c)(ii) which specifically provides for a ruling like the one <em>in casu</em> in circumstances where the labour officer finds that the dispute of right in question <strong>‘must be resolved against any employer or other person in a specific manner …’</strong></p> <p>  </p> <p>[13]      Without a clear pronouncement to that effect, there can in    my view be no doubt that       reference to ‘any person’ in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the       confirmation and registration of a draft ruling by the labour officer, which is made in         favour of an employer and against an aggrieved employee.              It follows that the Labour           Court has no jurisdiction to entertain such a matter and should on that basis properly           decline to hear it.</p> <p> </p> <p>[14]      It is noted further that the wording of ss (5b), <em>albeit</em> not specifically stating so, excludes the employee concerned from the confirmation proceedings. This is an employee who would have been an active party in, as well as the instigator of, the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her. In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.</p> <p> </p> <p>[15]      It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.</p> <p> </p> <p>[16]      The employee on these grounds can in my view properly apply to be joined to the confirmation proceedings in terms of r 33(2) of the Labour Court Rules, SI 150/17. The joinder of a party <em>mero motu</em> by the court is not expressly provided for in r 33, however. I am nevertheless satisfied that this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court in a deserving case, to order <em>mero motu</em> the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings. Such an order would ensure full compliance with the common law rule, <em>audi alteren partem.</em></p> <p> </p> <p>[17]      The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities.</p> <p>Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, <em>The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa</em> (5th edn, Juta &amp;Co Ltd, Cape Town, 2009) vol. 1 at page 215 explain non-joinder by stating as follows:</p> <p>“A third party who has, or may have a direct and substantial interest in any          order the court might make in proceedings or if such an order cannot be          sustained or      carried into effect without prejudicing that party, is a necessary party and should be      joined in the proceedings, unless the court is satisfied that such a person has waived      the right to be joined. …  in fact, when such person is a necessary party in the sense             that the court will not deal with the issues without a joinder being effected, and no           question of discretion or convenience arises.” (<em>my emphasis)</em></p> <p> </p> <p> </p> <p>The meaning of direct and substantial interest is explained at page 217 to 218 as follows:</p> <p>“A ‘direct and substantial interest’ has been held to be ‘an interest in the right      which is the subject-matter of the litigation and not merely a financial interest            which is only an indirect interest in such litigation’. It is ‘a legal interest in the subject      matter of the litigation, excluding an indirect commercial interest only’. The         possibility of such an interest is sufficient, and it is not necessary for the court to             determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter      of the   litigation but also in the outcome of it.” (<em>my emphasis</em>)</p> <p> </p> <p> </p> <p>[18]      It hardly needs emphasis that, <em>albeit</em> not applicable <em>in casu,</em> an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.  The employee in any case would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment. The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order <em>mero motu</em> that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent. </p> <p> </p> <p>[19]      That the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates;</p> <p>“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder,          the court should raise it <em>mero motu</em> to safeguard the interest of third parties and it   should decline to hear the matter until such joinder has been effected, or until the         court is satisfied that the third parties have consented to be bound by the    judgment or have waived their right to be joined.”</p> <p> </p> <p>When this is related to the circumstances of this case, it cannot in my view be contested that the joinder of the employee, Ms Khan, was necessary.</p> <p> </p> <p>[20]      While it is noted <em>in casu</em> that the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored that the court effectively heard evidence from one side of the dispute and not the other, before making its determination. As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling.  It then essentially weighed the respondent’s submissions against what was contained in the affidavit of the labour officer, and made its determination. The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the <em>quantum</em> of the award. Nor, however could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking that the employee had been accorded the unfair advantage of having her case ‘argued’ for her by the labour officer.</p> <p> </p> <p>[21]      There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings.  Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, ss (5b) affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter. It is evident from ss (5b) that before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is in reality not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect. He cannot therefore be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation. Defending the labour officer’s ruling should properly be the province of the person directly affected by it, that is, the employee concerned. In my view, the Labour Court’s confirmation or non-confirmation of the ruling after effectively hearing one side of the dispute is at best an irregularity and at worst a travesty of justice.</p> <p> </p> <p>[22]      Secondly, the procedure presupposes that a ruling made by the labour officer in favour of an employee will meet that employee’s satisfaction. It shuts the door for instance on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that <em>quantum,</em> in confirmation proceedings before the Labour Court. A joinder to the proceedings would accord the employee the opportunity to, as it were ‘cross oppose’ the confirmation proceedings in the desired respect.</p> <p> </p> <p>[23]      Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court for one reason or the other, the employee might wish to take up the matter on appeal. He would however, be hamstrung by the fact that he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order, on his or her behalf.</p> <p> </p> <p>[24]      Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.  One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent. This is what happened <em>in casu</em>. All too often this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal. Equally often, the respondent cited in the appeal, that is the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument.  Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer’s appearance.</p> <p> </p> <p>[25]      Ordinarily where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party. The point has already been made that the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee’s knowledge. The injustice of such an outcome needs no emphasis.</p> <p> </p> <p>[26]      Finally, the appearance of the labour officer as the respondent in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems. In such cases the question of the labour officer’s competence to so appear has arisen. In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis?  It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.</p> <p> </p> <p>[27]      Other aspects of the procedure suggested by ss (5a) and (5b) of s 93 of the Act merit some comment.  Subsection (5b) makes it clear that the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court’s confirmation of the labour officer’s ruling.</p> <p> </p> <p>[28]      Further, while ss (5b) clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution. Without being cited as a party, there would be confusion as to whether the ‘claimant’, that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite <em>locus standi</em>, and more so because ss (5b) does not mandate him to do so. The danger of the Labour Court’s order being rendered a <em>brutum fulmen </em>becomes real.</p> <p> </p> <p>[29]      In conclusion, while one might argue in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view that the absurdities could not have been consciously intended by the legislature.  The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court. The legislature might well wish to consider addressing this and the other concerns set out in this judgment.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[30]      When all is said and done and in view of the foregoing, it is my finding that there was       a fatal non-joinder of the employee, Ms Khan, to the proceedings <em>a quo</em>. Such proceedings can therefore not be allowed to stand.</p> <p> </p> <p>In the result, the following order is made:</p> <p>1.   The appeal be and is hereby allowed.</p> <ol><li>The proceedings and judgment of the court <em>a quo</em> be and are hereby quashed.</li> <li>The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.</li> <li>Each party shall bear its own costs.</li> </ol><p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA:                   </strong>I agree</p> <p>           </p> <p> </p> <p> </p> <p><strong>MAKONI JA:                        </strong>I agree</p> <p> </p> <p> </p> <p><em>Vasco Shamu and Associates</em>, appellant’s legal practitioners</p> <p>This paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights</p> <p>Such employee would, it seems, have to pursue other avenues to appeal against the draft ruling.</p> <p>The hearing is certainly not an appeal against nor a review of, the Labour Officer’s ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer’s ruling.</p> <p>See  Herbstein and van Winsen’s  ‘The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa’ (<em>supra</em>) at  pages 208 to 209.</p> <p>Before the court <em>a quo </em>the labour officer briefly repeated the facts of the dispute and the details of the award she had made.  </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:40 +0000 Anonymous 10063 at http://www.zimlii.org British American Tobacco Zimbabwe v Chibaya (SC 30 of 2019, Civil Appeal SC 429 of 2016) [2019] ZWSC 30 (15 March 2019); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/30 <span class="field field--name-title field--type-string field--label-hidden">British American Tobacco Zimbabwe v Chibaya (SC 30 of 2019, Civil Appeal SC 429 of 2016) [2019] ZWSC 30 (15 March 2019);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> <div class="field__item"><a href="/taxonomy/term/1881" hreflang="en">Evidence</a></div> <div class="field__item"><a href="/taxonomy/term/2320" hreflang="x-default">Civil matter (EVIDENCE)</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/30/2019-zwsc-30.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=41736">2019-zwsc-30.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/30/2019-zwsc-30.pdf" type="application/pdf; length=224903">2019-zwsc-30.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p><strong>DISTRIBUTABLE</strong><strong>               (28) </strong></p> <p> </p> <p><strong>BRITISH     AMERICAN     TOBBACO     ZIMBABWE </strong></p> <p><strong>v</strong></p> <p><strong>JONATHAN     CHIBAYA</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; MAVANGIRA JA </strong></p> <p><strong>HARARE, JUNE 20, 2017 &amp; MARCH 15, 2019</strong></p> <p> </p> <p><em>S. M. Hashiti, </em>for Appellant</p> <p><em>K. Gama,</em> for Respondent</p> <p>             </p> <p> <strong>MAVANGIRA JA</strong>:       This is an appeal against the entire judgment of the Labour Court dismissing the appellant’s appeal against a decision of the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which found that the appellant had failed to prove a <em>prima facie</em> case against the respondent.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p> </p> <p>The appellant, British American Tobacco Zimbabwe, is a company registered in terms of the laws of Zimbabwe. The respondent was employed by the appellant as a trade marketing representative.</p> <p> </p> <p> </p> <p>The respondent was charged with an act of misconduct which was couched in the following terms:</p> <p>“<strong>Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters</strong></p> <p><strong>            Violation of Clause (d) defined as;</strong></p> <p>Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:</p> <p>Charges against you are emanating from that on 31st may 2012 you allegedly withdrew US$2,605.00 from British American Tobacco Zimbabwe’s (BAT Zimbabwe) account and converted this amount to your own use.”</p> <p> </p> <p> </p> <p> </p> <p>The charge arose after it was discovered that there were two withdrawals of an amount of USD2 605-00 from the appellant’s Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was unauthorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it the latter withdrawal was also made by the respondent.</p> <p> </p> <p> </p> <p>The charges were laid almost a year later, on 29 July 2013 and the respondent was suspended from work with full pay and benefits in terms of the applicable Code of Conduct being the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI 322/96).  A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist who, after analysing several samples of the respondent’s signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent’s standard signature. Consequently the respondent was dismissed from employment with effect from 30 August 2013, the date on which the disciplinary committee made the decision.</p> <p> </p> <p>The respondent appealed to the Works Council against the dismissal. The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:  </p> <ul><li>obtain the original withdrawal documents;</li> <li>get an explanation from the bank on the processing of a withdrawal slip;</li> <li>get confirmation from the bank whether video evidence was still available; and</li> <li>seek clarification on issues raised by the Mutare branch manager during the initial hearing.</li> </ul><p> </p> <p>However, without obtaining and considering the documents and evidence it had hoped to get from the bank, on 25 November 2013, the Works Council made and availed its decision upholding the dismissal penalty by the Disciplinary Committee.</p> <p> </p> <p> </p> <p>Aggrieved by the decision of the Works Council, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee’s reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely the handwriting expert’s report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent.</p> <p> </p> <p> </p> <p>Further the NEC Grievance and Disciplinary Committee found that the bank was not co-operative as it failed to provide information which would have assisted the committee in its determination of the guilt of the respondent or otherwise. This information included the original withdrawal slip, the relevant video footage and an explanation of how withdrawal slips are processed. In light of the inconclusive handwriting report and the missing information which the bank was reluctant to supply, the NEC Committee concluded that, whilst the respondent’s connivance with the bank could not be ruled out, on the proven facts and available evidence, the appellant had failed to prove respondent’s guilt on a balance of probabilities.</p> <p> </p> <p>Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court. The appellant’s grounds before that court were essentially that the NEC Committee had erred at law and misdirected itself in a number of respects. It had erred and misdirected itself in holding that the appellant had failed to substantiate its claim when it found that connivance with the bank could not be ruled out; in disregarding the forensic report by the handwriting expert; in ignoring the respondent’s identification details which were affixed on the withdrawal slip and in holding that the fraudulent transaction had been committed by a member of the bank.</p> <p> </p> <p>The court <em>a quo</em> upheld the decision of the Committee. It reasoned that the withdrawal slip of 31 May 2012 was effected at 0800 hours, a time when the doors of the bank get opened to the public and that there was no evidence that was led to show that the respondent was already in the bank at that time. Further, it found that the forensic report relied upon was based on the examination of photocopies and not the original documents which were kept at the bank. Consequently, the court <em>a quo</em> concluded that the evidence on record pointed rather to the involvement of the bank’s personnel and not that of the respondent. The appeal was thus dismissed.</p> <p> </p> <p> </p> <p><strong>BASIS OF PRESENT APPEAL</strong></p> <p>Aggrieved by the court <em>a quo’s</em> decision, the appellant has appealed to this Court on the following grounds:</p> <ol><li>The court <em>a quo</em> erred and misdirected itself in failing to find that sufficient evidence, including expert forensic evidence and facts had been established linking the respondent to commission of the offences charged under clause (d) of SI 322 of 1996.</li> <li>The court <em>a quo</em> further erred and misdirected itself in failing to find that, in any event, sufficient evidence had been led to establish respondent’s connivance in the commission of the offences charged under clause (d) of SI 322 of 1996</li> <li>The court <em>a quo</em> further erred and misdirected itself in rejecting expert evidence pointing to the respondent’s guilt and connivance in the commission of the offence charged under clause (d) of S.I 322 of 1996</li> <li>The court <em>a quo</em> consequently erred and misdirected itself in failing to find that the respondent’s guilt had been established and consequently his dismissal was lawful.</li> </ol><p> </p> <p> </p> <p><strong>THE ISSUE</strong></p> <p>From these grounds of appeal and the facts above, the only issue for determination is whether or not there was sufficient evidence in the record to link the respondent to the commission of the offence.</p> <p> </p> <p> </p> <p><strong>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>The submission by Mr <em>Hashiti, </em>on behalf of the appellant, in both his written and oral submissions, is that the appellant managed to prove on a balance of probabilities that the fraudulent withdrawal of its funds on 31 May 2012 was made in the respondent’s name and on his signature, that the withdrawal instruction bore the respondent’s identity details, all of which aspects were confirmed by the handwriting expert’s report which concluded that the signature on the withdrawal slips matched that of the respondent.</p> <p> </p> <p> </p> <p>Consequently, the appellant argued, the respondent was guilty of the offence charged and the NEC Grievance and Disciplinary Committee had therefore wrongly found him not guilty.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>Mr <em>Gama, </em>for the respondent, argued that the appellant failed to prove on a balance of probabilities that the respondent had committed the offence. He argued that the respondent could not have signed the withdrawal slip of 31 May 2012 because he could not have been in the bank before the bank’s opening time for him to have been served at 8.00am and that therefore the withdrawal could only have been done by a staff member of the bank.</p> <p> </p> <p> </p> <p>He further argued that the handwriting expert’s report was unreliable and inconclusive because the expert relied on photocopies of the withdrawal slips in assessing the signature. To show the unreliability of the photocopies the respondent pointed out the fact that the expert missed the variation between the forged signature on the photocopy of the 31 May 2012 withdrawal slip which ended with two dots and the appellant’s standard signature which had none.</p> <p> </p> <p> </p> <p><strong>ANALYSIS </strong></p> <p>            The charges that were laid against the respondent arose after the withdrawal of 31 May 2012 because the withdrawal slip was in his name and was purportedly signed by him. In addition, his identification particulars were also recorded thereon. A perusal of the record shows that there was no direct evidence linking the respondent to the offence. The appellant relied on circumstantial evidence. The respondent on his part argued that the circumstantial evidence relied on did not prove that he was guilty.</p> <p> </p> <p>In <em>S v Tambo</em> 2007 (2) ZLR 33 (H), 34 C-D (a criminal matter), the court held that;</p> <p>“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>However in cases where not only one inference can be drawn, the court in <em>Ebrahim v Pittman NO</em> 1995 (1) ZLR 176 (H), 176, held that;</p> <p>“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, 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.”(emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Miller v Minister of Pensions</em> [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;</p> <p>“It must carry a reasonable degree of probability but not so high as 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)</p> <p> </p> <p> </p> <p> </p> <p>In the book, The South African Law of Evidence, 4th Edition, <em>Hoffman and Zeffertt</em> state as follows:</p> <p>“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.…</p> <p> </p> <p>Selke J held in <em>Govan v Skidmore</em> that the selected inference must ‘by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.’”</p> <p> </p> <p> </p> <p> </p> <p>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.</p> <p> </p> <p> </p> <p>In the text Principles of Evidence, 4th edition, the authors Schwikkard and van der Merwe similarly state:</p> <p>“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 <em>AA Onderlinge Assuransie-Assosiasie Bpk v De Beer</em> (1982 (2) SA 603 (A)) it was held that a plaintiff who relies 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.”</p> <p> </p> <p> </p> <p> </p> <p> In <em>casu</em>, the appellant having alleged that the respondent had committed an offence, had the burden to prove the allegation. It is trite in our law that he who alleges must prove. It was the evidence of the appellant that the fraudulent withdrawal slip was processed at 0800hours on 31 May 2012. The fraudulent withdrawal was made in the name of the respondent and an almost similar signature to his was affixed to the withdrawal slip.  The withdrawal slip also bore the respondent’s personal details.</p> <p> </p> <p> </p> <p>It was on the strength of this that the charge was laid against the respondent leading to a disciplinary hearing, where a handwriting expert was called to examine the withdrawal slip to determine whether it was forged or it was indeed signed by the respondent. The expert found that the signature on the withdrawal slip was the same as the appellant’s standard signature. The expert’s conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert’s finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies.</p> <p> </p> <p> </p> <p>The bank was asked to assist in this matter but was not co-operative. At one point it was asked to provide the original copies of the withdrawal slip; it was also asked to assist with an explanation of the processing of a withdrawal slip and to also produce a video footage placing the respondent at the bank. The bank did not come through on all these requests. The bank’s uncooperative attitude must be viewed against the backdrop of the allegation that the bank knew or already had the respondent’s details; that the withdrawal slip was at all material times in the possession of the bank and was never accessed by the respondent and that the same bank teller who had served the respondent and processed the withdrawal of 18 May 2012 was the same teller who processed the same withdrawal on 31 May 2012.</p> <p> </p> <p> </p> <p>The bank’s uncooperative attitude is not irrelevant in the determination of this appeal. The specific requests that were made of it were in relation to critically material aspects that would need to be adverted to in determining whether, on a balance of probabilities, the respondent could be said to be guilty. In the absence of such, the guilt of the respondent cannot be said to have been proved, even on a balance of probabilities. The finding of the NEC Grievance and Disciplinary Committee, which was confirmed by the court <em>a quo</em> cannot, in the circumstances, be faulted.</p> <p> </p> <p> </p> <p>The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.</p> <p> </p> <p> </p> <p>The court <em>a quo</em> found that, because the bank was in possession of the withdrawal slip, any of its officials could have used the documents that had previously been presented in order to capture the signature and the identity particulars of the respondent.  The court <em>a quo</em> found that it was not clear whether the respondent was involved or not in the withdrawal of 31 May 2012. The appellant’s involvement was thus not proved. The appellant’s involvement or guilt in the withdrawal that occurred on 31 May 2012 was not the most readily apparent and acceptable inference. Rather, the balance of probabilities tended, in the view of the court <em>a quo</em>, to point to direct involvement by the bank or its employees.</p> <p> </p> <p>Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court’s general knowledge.  In <em>Menday v Protea Assurance Co. Ltd</em> 1976 (1) SA 565 at 569B-C it was stated that</p> <p>“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.” </p> <p> </p> <p> </p> <p>In <em>R v Chidota </em>1966 (3) SA 428, (another criminal matter) the learned judge QUENET (JP), held that:</p> <p>“where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”</p> <p> </p> <p> </p> <p> </p> <p>It is trite that in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.  </p> <p> </p> <p>                        In <em>S v Zuma</em> 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the evidence. </p> <p> </p> <p>In <em>casu</em>, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.</p> <p> </p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In light of the above findings, I am of the view that the appeal lacks merit and therefore ought to be dismissed with costs following the cause.</p> <p> </p> <p> </p> <p>In the result, it is ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GARWE JA                    :           </strong>I agree</p> <p> </p> <p><strong>GOWORA JA                :           </strong>I agree</p> <p>  </p> <p><em>Mawire J. T &amp; Associates</em>, applicant’s legal practitioner</p> <p><em>Gama &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-afec390be5021c90ad36c6cfd30559596ad3fa00dc31c9aeba2d9876a7d26931"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p><strong>DISTRIBUTABLE</strong><strong>               (28) </strong></p> <p> </p> <p><strong>BRITISH     AMERICAN     TOBBACO     ZIMBABWE </strong></p> <p><strong>v</strong></p> <p><strong>JONATHAN     CHIBAYA</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; MAVANGIRA JA </strong></p> <p><strong>HARARE, JUNE 20, 2017 &amp; MARCH 15, 2019</strong></p> <p> </p> <p><em>S. M. Hashiti, </em>for Appellant</p> <p><em>K. Gama,</em> for Respondent</p> <p>             </p> <p> <strong>MAVANGIRA JA</strong>:       This is an appeal against the entire judgment of the Labour Court dismissing the appellant’s appeal against a decision of the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which found that the appellant had failed to prove a <em>prima facie</em> case against the respondent.</p> <p> </p> <p> </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p> </p> <p>The appellant, British American Tobacco Zimbabwe, is a company registered in terms of the laws of Zimbabwe. The respondent was employed by the appellant as a trade marketing representative.</p> <p> </p> <p> </p> <p>The respondent was charged with an act of misconduct which was couched in the following terms:</p> <p>“<strong>Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters</strong></p> <p><strong>            Violation of Clause (d) defined as;</strong></p> <p>Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:</p> <p>Charges against you are emanating from that on 31st may 2012 you allegedly withdrew US$2,605.00 from British American Tobacco Zimbabwe’s (BAT Zimbabwe) account and converted this amount to your own use.”</p> <p> </p> <p> </p> <p> </p> <p>The charge arose after it was discovered that there were two withdrawals of an amount of USD2 605-00 from the appellant’s Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was unauthorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it the latter withdrawal was also made by the respondent.</p> <p> </p> <p> </p> <p>The charges were laid almost a year later, on 29 July 2013 and the respondent was suspended from work with full pay and benefits in terms of the applicable Code of Conduct being the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI 322/96).  A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist who, after analysing several samples of the respondent’s signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent’s standard signature. Consequently the respondent was dismissed from employment with effect from 30 August 2013, the date on which the disciplinary committee made the decision.</p> <p> </p> <p>The respondent appealed to the Works Council against the dismissal. The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:  </p> <ul><li>obtain the original withdrawal documents;</li> <li>get an explanation from the bank on the processing of a withdrawal slip;</li> <li>get confirmation from the bank whether video evidence was still available; and</li> <li>seek clarification on issues raised by the Mutare branch manager during the initial hearing.</li> </ul><p> </p> <p>However, without obtaining and considering the documents and evidence it had hoped to get from the bank, on 25 November 2013, the Works Council made and availed its decision upholding the dismissal penalty by the Disciplinary Committee.</p> <p> </p> <p> </p> <p>Aggrieved by the decision of the Works Council, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee’s reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely the handwriting expert’s report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent.</p> <p> </p> <p> </p> <p>Further the NEC Grievance and Disciplinary Committee found that the bank was not co-operative as it failed to provide information which would have assisted the committee in its determination of the guilt of the respondent or otherwise. This information included the original withdrawal slip, the relevant video footage and an explanation of how withdrawal slips are processed. In light of the inconclusive handwriting report and the missing information which the bank was reluctant to supply, the NEC Committee concluded that, whilst the respondent’s connivance with the bank could not be ruled out, on the proven facts and available evidence, the appellant had failed to prove respondent’s guilt on a balance of probabilities.</p> <p> </p> <p>Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court. The appellant’s grounds before that court were essentially that the NEC Committee had erred at law and misdirected itself in a number of respects. It had erred and misdirected itself in holding that the appellant had failed to substantiate its claim when it found that connivance with the bank could not be ruled out; in disregarding the forensic report by the handwriting expert; in ignoring the respondent’s identification details which were affixed on the withdrawal slip and in holding that the fraudulent transaction had been committed by a member of the bank.</p> <p> </p> <p>The court <em>a quo</em> upheld the decision of the Committee. It reasoned that the withdrawal slip of 31 May 2012 was effected at 0800 hours, a time when the doors of the bank get opened to the public and that there was no evidence that was led to show that the respondent was already in the bank at that time. Further, it found that the forensic report relied upon was based on the examination of photocopies and not the original documents which were kept at the bank. Consequently, the court <em>a quo</em> concluded that the evidence on record pointed rather to the involvement of the bank’s personnel and not that of the respondent. The appeal was thus dismissed.</p> <p> </p> <p> </p> <p><strong>BASIS OF PRESENT APPEAL</strong></p> <p>Aggrieved by the court <em>a quo’s</em> decision, the appellant has appealed to this Court on the following grounds:</p> <ol><li>The court <em>a quo</em> erred and misdirected itself in failing to find that sufficient evidence, including expert forensic evidence and facts had been established linking the respondent to commission of the offences charged under clause (d) of SI 322 of 1996.</li> <li>The court <em>a quo</em> further erred and misdirected itself in failing to find that, in any event, sufficient evidence had been led to establish respondent’s connivance in the commission of the offences charged under clause (d) of SI 322 of 1996</li> <li>The court <em>a quo</em> further erred and misdirected itself in rejecting expert evidence pointing to the respondent’s guilt and connivance in the commission of the offence charged under clause (d) of S.I 322 of 1996</li> <li>The court <em>a quo</em> consequently erred and misdirected itself in failing to find that the respondent’s guilt had been established and consequently his dismissal was lawful.</li> </ol><p> </p> <p> </p> <p><strong>THE ISSUE</strong></p> <p>From these grounds of appeal and the facts above, the only issue for determination is whether or not there was sufficient evidence in the record to link the respondent to the commission of the offence.</p> <p> </p> <p> </p> <p><strong>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>The submission by Mr <em>Hashiti, </em>on behalf of the appellant, in both his written and oral submissions, is that the appellant managed to prove on a balance of probabilities that the fraudulent withdrawal of its funds on 31 May 2012 was made in the respondent’s name and on his signature, that the withdrawal instruction bore the respondent’s identity details, all of which aspects were confirmed by the handwriting expert’s report which concluded that the signature on the withdrawal slips matched that of the respondent.</p> <p> </p> <p> </p> <p>Consequently, the appellant argued, the respondent was guilty of the offence charged and the NEC Grievance and Disciplinary Committee had therefore wrongly found him not guilty.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</strong></p> <p>Mr <em>Gama, </em>for the respondent, argued that the appellant failed to prove on a balance of probabilities that the respondent had committed the offence. He argued that the respondent could not have signed the withdrawal slip of 31 May 2012 because he could not have been in the bank before the bank’s opening time for him to have been served at 8.00am and that therefore the withdrawal could only have been done by a staff member of the bank.</p> <p> </p> <p> </p> <p>He further argued that the handwriting expert’s report was unreliable and inconclusive because the expert relied on photocopies of the withdrawal slips in assessing the signature. To show the unreliability of the photocopies the respondent pointed out the fact that the expert missed the variation between the forged signature on the photocopy of the 31 May 2012 withdrawal slip which ended with two dots and the appellant’s standard signature which had none.</p> <p> </p> <p> </p> <p><strong>ANALYSIS </strong></p> <p>            The charges that were laid against the respondent arose after the withdrawal of 31 May 2012 because the withdrawal slip was in his name and was purportedly signed by him. In addition, his identification particulars were also recorded thereon. A perusal of the record shows that there was no direct evidence linking the respondent to the offence. The appellant relied on circumstantial evidence. The respondent on his part argued that the circumstantial evidence relied on did not prove that he was guilty.</p> <p> </p> <p>In <em>S v Tambo</em> 2007 (2) ZLR 33 (H), 34 C-D (a criminal matter), the court held that;</p> <p>“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>However in cases where not only one inference can be drawn, the court in <em>Ebrahim v Pittman NO</em> 1995 (1) ZLR 176 (H), 176, held that;</p> <p>“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, 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.”(emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Miller v Minister of Pensions</em> [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;</p> <p>“It must carry a reasonable degree of probability but not so high as 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)</p> <p> </p> <p> </p> <p> </p> <p>In the book, The South African Law of Evidence, 4th Edition, <em>Hoffman and Zeffertt</em> state as follows:</p> <p>“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.…</p> <p> </p> <p>Selke J held in <em>Govan v Skidmore</em> that the selected inference must ‘by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.’”</p> <p> </p> <p> </p> <p> </p> <p>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.</p> <p> </p> <p> </p> <p>In the text Principles of Evidence, 4th edition, the authors Schwikkard and van der Merwe similarly state:</p> <p>“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 <em>AA Onderlinge Assuransie-Assosiasie Bpk v De Beer</em> (1982 (2) SA 603 (A)) it was held that a plaintiff who relies 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.”</p> <p> </p> <p> </p> <p> </p> <p> In <em>casu</em>, the appellant having alleged that the respondent had committed an offence, had the burden to prove the allegation. It is trite in our law that he who alleges must prove. It was the evidence of the appellant that the fraudulent withdrawal slip was processed at 0800hours on 31 May 2012. The fraudulent withdrawal was made in the name of the respondent and an almost similar signature to his was affixed to the withdrawal slip.  The withdrawal slip also bore the respondent’s personal details.</p> <p> </p> <p> </p> <p>It was on the strength of this that the charge was laid against the respondent leading to a disciplinary hearing, where a handwriting expert was called to examine the withdrawal slip to determine whether it was forged or it was indeed signed by the respondent. The expert found that the signature on the withdrawal slip was the same as the appellant’s standard signature. The expert’s conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert’s finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies.</p> <p> </p> <p> </p> <p>The bank was asked to assist in this matter but was not co-operative. At one point it was asked to provide the original copies of the withdrawal slip; it was also asked to assist with an explanation of the processing of a withdrawal slip and to also produce a video footage placing the respondent at the bank. The bank did not come through on all these requests. The bank’s uncooperative attitude must be viewed against the backdrop of the allegation that the bank knew or already had the respondent’s details; that the withdrawal slip was at all material times in the possession of the bank and was never accessed by the respondent and that the same bank teller who had served the respondent and processed the withdrawal of 18 May 2012 was the same teller who processed the same withdrawal on 31 May 2012.</p> <p> </p> <p> </p> <p>The bank’s uncooperative attitude is not irrelevant in the determination of this appeal. The specific requests that were made of it were in relation to critically material aspects that would need to be adverted to in determining whether, on a balance of probabilities, the respondent could be said to be guilty. In the absence of such, the guilt of the respondent cannot be said to have been proved, even on a balance of probabilities. The finding of the NEC Grievance and Disciplinary Committee, which was confirmed by the court <em>a quo</em> cannot, in the circumstances, be faulted.</p> <p> </p> <p> </p> <p>The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.</p> <p> </p> <p> </p> <p>The court <em>a quo</em> found that, because the bank was in possession of the withdrawal slip, any of its officials could have used the documents that had previously been presented in order to capture the signature and the identity particulars of the respondent.  The court <em>a quo</em> found that it was not clear whether the respondent was involved or not in the withdrawal of 31 May 2012. The appellant’s involvement was thus not proved. The appellant’s involvement or guilt in the withdrawal that occurred on 31 May 2012 was not the most readily apparent and acceptable inference. Rather, the balance of probabilities tended, in the view of the court <em>a quo</em>, to point to direct involvement by the bank or its employees.</p> <p> </p> <p>Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court’s general knowledge.  In <em>Menday v Protea Assurance Co. Ltd</em> 1976 (1) SA 565 at 569B-C it was stated that</p> <p>“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.” </p> <p> </p> <p> </p> <p>In <em>R v Chidota </em>1966 (3) SA 428, (another criminal matter) the learned judge QUENET (JP), held that:</p> <p>“where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”</p> <p> </p> <p> </p> <p> </p> <p>It is trite that in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.  </p> <p> </p> <p>                        In <em>S v Zuma</em> 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the evidence. </p> <p> </p> <p>In <em>casu</em>, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.</p> <p> </p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In light of the above findings, I am of the view that the appeal lacks merit and therefore ought to be dismissed with costs following the cause.</p> <p> </p> <p> </p> <p>In the result, it is ordered that the appeal be and is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GARWE JA                    :           </strong>I agree</p> <p> </p> <p><strong>GOWORA JA                :           </strong>I agree</p> <p>  </p> <p><em>Mawire J. T &amp; Associates</em>, applicant’s legal practitioner</p> <p><em>Gama &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:00 +0000 Anonymous 10037 at http://www.zimlii.org Madzima v Marange Resources (Private) Limited (SC 12 of 2019, Civil Appeal 51 of 2016) [2019] ZWSC 12 (22 February 2019); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/12 <span class="field field--name-title field--type-string field--label-hidden">Madzima v Marange Resources (Private) Limited (SC 12 of 2019, Civil Appeal 51 of 2016) [2019] ZWSC 12 (22 February 2019);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> <div class="field__item"><a href="/taxonomy/term/2136" hreflang="x-default">Misconduct</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/12/2019-zwsc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40456">2019-zwsc-12.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/12/2019-zwsc-12.pdf" type="application/pdf; length=222708">2019-zwsc-12.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>              (21)</strong></p> <p> </p> <p>    </p> <p><strong>ALPHA    MADZIMA </strong></p> <p><strong>v</strong></p> <p><strong>MARANGE     RESOURCES     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: NOVEMBER 4, 2016 &amp; FEBRUARY 22, 2019</strong></p> <p> </p> <p> </p> <p><em>L Uriri</em>, for the appellant</p> <p><em>I Ndudzo</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA: </strong>This is an appeal against the whole judgement of the Labour Court, Harare, handed down on 6 March 2015.</p> <p> </p> <p><strong>BACKGROUND</strong></p> <p>The appellant was employed by the respondent as a Finance Manager in the year 2010. When the events that gave rise to this matter occurred in October 2012, he was the Acting Chief Finance Officer.</p> <p> </p> <p>On 3 October 2012, the appellant received a phone call which was later followed up by an email from Tetrad Investment Bank Limited (Tetrad). In both instances a request was made of him to write a letter of undertaking. The letter was to be written on the respondent’s letter head. The email reads:</p> <p>“<strong>DD Mining letter of undertaking …</strong></p> <p>Above supplier holds an order from yourselves which we have financed. We would be grateful if you could sign the attached letter of undertaking to pay to Tetrad on your letterhead.”</p> <p> </p> <p>The email was written by one Toddy Muchongwe, General Manager Corporate Banking at Tetrad and was addressed to the appellant. The body of the draft letter of undertaking that was attached to the email reads:</p> <p>“<strong>Undertaking to direct all payments to Tetrad account number ….</strong></p> <p>Acting under instructions received from … and pursuant to an ongoing contract/ arrangement between ourselves and … where we regularly place orders of varying quantities of … which we receive on account, we hereby irrevocably and unequivocally undertake to direct all payments as they fall due to the account held in your books for all goods received in good order and accepted by ourselves.</p> <p>The details of the account to which all payments will be directed are as follows:</p> <p>Account Name                        :</p> <p>            Account Number                    :</p> <p>            Branch                                     :</p> <p>We also undertake that there will not be a variation to the payment account unless we have received written instructions from Tetrad Investment Bank authorising such a variation.</p> <p>Should any circumstances arise to prevent or unduly delay the transfer of any funds due for payment into the said account necessary advices shall be given to the bank and in the absence of such advices the bank shall be entitled to follow up and obtain any confirmations from ourselves as may be deemed necessary.</p> <p>This letter is not transferable and will remain valid for as long as there are outstanding payments for goods received from … or unless otherwise cancelled by the bank and written confirmation has been received.”</p> <p> </p> <p>Also attached to the email, together with the draft letter of undertaking was a purchase order purporting to emanate from the respondent company to DD Mining and General Suppliers (Pvt) Ltd for an item described as “CE-125 PERIPHERAL PUMP” with a grand total value of “125 625.02”</p> <p> </p> <p>The appellant allegedly consulted his immediate superior, one Simbisayi Wilfred Munemo, who gave him authority and the appellant proceeded to put the Tetrad draft on the respondent’s letter head and he signed it. The appellant filled in the blanks in the draft letter of undertaking. Having done this the letter now reflected that the writer was “acting under instructions received from DD Mining General Suppliers and pursuant to an ongoing contract/ arrangement between ourselves and DD Mining and General Supplies.” He filled in the account name as “DD Mining and General Supplies.” He also filled in the account number and the branch name. He also filled in the blank in the last paragraph of the draft letter with the name “DD Mining and General Supplies” The letter was sent to Tetrad. Thereafter, Tetrad phoned the appellant’s superior to confirm that the letter of undertaking was in order.</p> <p> </p> <p>In September 2013 the appellant and his immediate superior were called by the police to give statements in relation to an alleged fraud relating to the financing arrangement of DD Mining and General Supplies by Tetrad. The immediate superior apparently stated that he had consulted with the Chief Executive Officer who saw nothing amiss about the appellant’s conduct in the letter of undertaking.</p> <p> </p> <p>In January 2014 the respondent company’s auditor was called by the Police in connection with pending fraud cases relating to the respondent. At the meeting the auditor was briefed about the letter of undertaking that was written to Tetrad. The auditor briefed the then Acting Chief Executive Officer who then raised two charges of misconduct against the appellant. </p> <p> </p> <p>The appellant was charged by the Acting Chief Executive officer with fraud and also with acting in a manner that is inconsistent with the fulfilment of express or implied conditions of his contract of employment as defined in sections 4(d) and 4(a) respectively, of the Labour (National Employment Code of Conduct) Regulations, 2006, SI 15 of 2006. The letter of suspension stated <em>inter alia,</em> that</p> <p>“The Company (Marange Resources Private Limited) (sic) became aware in January 2014 that on 3 October 2012 you wrote and issued a letter of undertaking to Tetrad Investment Bank Limited on behalf of DD Mining and General Supplies. It is a common cause fact that you were fully aware that the basis upon which the letter of undertaking was made had nothing to do with Marange Resources (PVT) LTD. It is common cause and clearly known by you that the purchase order upon which you acted upon (sic) bears no resemblance to the Marange resources (PVT) LTD order book/form. In your position you clearly know that Marange Resources (PVT) LTD does not trade as Marange Diamond Fields but you proceeded to commit the company to be tied to such an order and the associated transaction that occurred. It is further common cause fact that you were fully aware that at no time in the history of Marange Resources (PVT) LTD that DD Mining and General Supplies had conducted business with Marange Resources (PVT) LTD.”</p> <p> </p> <p> </p> <p>With specific reference to the charge preferred against the appellant in terms of s 4(a) (any act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment), the letter further stated:</p> <p>“… your position has a contractual and legal duty to act and conduct yourself honestly and solely in the interests of the Company. You wrote and issued a letter of undertaking that bound the Company to a financial transaction which had nothing to do with the Company. You breached the express and implied term of your contract of employment in relation to trust and integrity. You occupy a position of trust and your act and conduct in this matter was inconsistent with the above as you breached the trust bestowed upon you by the Company to manage and protect its interests. Your act and conduct in this matter has demonstrably lacked integrity to an extent of putting the company to serious risk, disrepute and irreparable damage.” </p> <p> </p> <p>The matter went before a Disciplinary Committee which found the appellant guilty of the latter charge, conduct inconsistent with express or implied provisions of the contract of employment. The appellant was consequently dismissed from employment. </p> <p> </p> <p>Dissatisfied with his dismissal, the Appellant referred the matter to a Labour Officer for conciliation in terms of s 8 of the Labour (National Employment Code) Regulations, 2006, S.I. 15/2006 (the National Code of Conduct). The matter was heard by a labour officer in terms of s 93 of the Labour Act.  Following unsuccessful conciliation, the matter was referred to arbitration in terms of s 98 of the Labour Act.</p> <p> </p> <p>The arbitrator agreed that an infraction had indeed been committed by the appellant and confirmed his conviction. He however set aside the penalty of dismissal and replaced it with a final written warning valid for 6 months and he reinstated the appellant. </p> <p> </p> <p>Disgruntled with the arbitral award, the respondent appealed to the Labour Court. Equally dissatisfied with the award, the appellant also filed a cross appeal on eight grounds. These grounds of appeal are not material to the determination of this appeal.</p> <p> </p> <p>The Labour Court upheld the main appeal and dismissed the cross appeal. The arbitral award was set aside and substituted with the following;</p> <p>“The penalty of dismissal of the respondent be and is hereby confirmed and the   reinstatement of the respondent be and is hereby set aside.”</p> <p> </p> <p><strong>THIS APPEAL</strong></p> <p>This is the finding that is the subject of this appeal. Two issues arise from the lengthy grounds of appeal relied on by the appellant. These are:</p> <ol><li>Whether or not the Labour Court was correct in confirming the finding of guilty on the second charge preferred.</li> <li>Whether or not the Labour Court had a basis on which to interfere with the decision of the arbitrator on the issue of the appropriate sentence.</li> </ol><p> </p> <p>I now deal with these questions <em>seriatim</em>.</p> <ol><li><strong>Whether or not the Labour Court was correct in making a finding of guilty on the second charge preferred.</strong></li> </ol><p>The appellant maintains that the finding by the disciplinary hearing that he is guilty of “any act or conduct inconsistent with the fulfilment of the express or implied conditions of one’s contract of employment” was erroneous as there was no evidence to justify such a finding. </p> <p> </p> <p>It is common cause that at the material time, the appellant was the Acting Chief Finance Officer of the respondent. Although the appellant’s contract of employment was not produced at any stage and is not part of the record, it is trite that all contracts of employment contain both express and implied provisions. Every contract of employment is hinged on a relationship of trust between the employer and the employee. This relationship of trust is an implied provision in any employment contract even if it may not be expressly stated. In signing a contract of employment, an employee undertakes to carry out the express and implied mandate of the employer. </p> <p> </p> <p>It is an essential principle in employer and employee relationships that an employee has a duty to safeguard the interests of the employer. In <em>casu,</em> the appellant’s position as the Acting Finance Officer imposed on him the duty to exercise due care and diligence. During the disciplinary hearing the appellant reportedly conceded and confirmed that it was his duty and role to advise the respondent company’s Finance Department.</p> <p>This Court has on a number of occasions pronounced on an employee’s conduct that is inconsistent with the express or implied conditions of the contract of employment. One such case is <em>Standard Chartered Bank Zimbabwe Limited v Michael Chapuka</em> SC 125/04 where the following is stated at page 7 of the judgement:</p> <p>“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee … (emphasis added)</p> <p>  </p> <p> </p> <p>The Appellant conceded that the letter that gave rise to the litigation between the parties was written at Tetrad’s bidding and initiative.  The contents of the letter were authored by Tetrad. The appellant was an employee of the respondent and not of Tetrad. The appellant’s conduct in writing the letter and signing it amounts to him acting in pursuance of the interests of a third party, which third party is not included in the employer-employee relationship that he had with the respondent. This is so because by appending his signature to the letter of undertaking, the appellant vouched for the truthfulness of the contents of the letter. He vouched for the correctness of the allegations in a letter that did not emanate from or benefit his employer. In addition, he did this without ascertaining the truth of the contents of the letter in circumstances where other departments of the respondent company would have been in a position to advise him accordingly.</p> <p> </p> <p>It is undisputed that the appellant did not verify the contents of the letter in question, in particular, that there was an ongoing contract between the respondent and DD Mining and General Supplies. Appending a signature to a letter that communicated what had not been verified by the appellant was not only negligent conduct on his part but it also exhibited a lack of the diligence that would be expected of an employee of his level and in fact, of every employee of whatever level. The best interests of an employer can only be achieved if employees diligently verify any undertaking that binds their employer. As was aptly stated in the Namibian case of <em>Helao Nafidi Town Council v Shivolo</em> [2016] NAHCMD [2016] at para 70:</p> <p>“The drift of Roman-Dutch and English authority is to the effect that the employer-employee relationship imposes a duty on the employee to act in the employer’s best interest. The employee has a duty not to work against the employer’s interests. <strong>The duty arises even though there is no express term in the contract of employment to that effect.</strong> As has been aptly stated in Lesotho Highlands Development Authority v Sole, the liability for breach of a fiduciary duty is not necessarily delictual or contractual but sui generis and will depend on the particular circumstances of each case. At the core is the principle that a person placed in a fiduciary duty will be in breach of his/her duty by failing to act bona fide in the interests of the employer.” (emphasis added)</p> <p> </p> <p> </p> <p>The question arises whether, despite the alleged assent by his superior, the appellant ought to be said to have not acted in the best interests of the employer when he signed the letter of undertaking without verifying its contents. The answer ought to be in the negative. By failing to verify the contents of the letter of undertaking before appending his signature, the appellant did not act in the interests of the employer. It was his signature that was to be appended on the letter and not that of his superior. There was therefore a duty on him to verify the contents that he signed for. In any event, it was not the appellant’s case that his superior verified the contents of the letter of undertaking.</p> <p> </p> <p>The fact that the appellant sought and obtained approval from his immediate superior did not take away from him the duty to verify information that had the effect of binding his employer. The immediate superior’s approval did not amount to verification of the content of the letter.</p> <p> </p> <p>The following excerpt from the Disciplinary Authority’s determination is apposite insofar as it reflects how it arrived at and justified the finding of guilty:</p> <p>“2. With respect to s 4 (a) the Respondent is a Senior Manager who acknowledges that he also has an advisory role to his Supervisors and he should have conducted himself honestly and diligently in the interest of the organisation:</p> <ol><li>He ought to have verified that Marange Resources had an existing order and Contract with DD Mining,</li> <li>The letter of undertaking should have had Marange Resources References,</li> </ol><p>The respondent merely printed a document without applying his mind to it</p> <ol><li>The fact that Mr Munemo Knew about this transaction does not make it right, and it does not absolve Mr Munemo of answering charges if the company chooses to do so,</li> <li>The Respondent should take full responsibility for the letter of undertaking and its consequences. He cannot run away from his signature……… the act of the respondent is tantamount to gross negligence, in writing a letter of Undertaking on behalf of Marange Resources without verifying facts from other departments. In his evidence he failed to take Responsibility for what the letter was stating.”</li> </ol><p> </p> <p> </p> <p> </p> <p>Viewed in the light of the above, the confirmations by the arbitrator and subsequently by the court <em>a quo</em> of the verdict of guilty by the Disciplinary Authority cannot be faulted.</p> <p> </p> <p>In the result, the appellant was therefore correctly found guilty of the misconduct of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. The court <em>a quo</em> thus correctly found that it could not interfere with the finding of guilty with which the appellant was aggrieved. It was incumbent upon the appellant to ensure the truth of what he was signing for and in this he failed.</p> <p> </p> <ol><li><strong>Whether or not the court a <em>quo</em> had a basis to interfere with the decision of the arbitrator on sentence</strong></li> </ol><p>It is settled in our law that an appellate court must be slow in interfering with the discretion exercised by a lower court. 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 some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the material for so doing.  See <em>Barros &amp; Anor v Chimphonda</em> 1999 [1] ZLR 58 [S] at 62F – 63A.</p> <p> </p> <p>The Labour Court sat as an appellate tribunal. The only basis on which it could have interfered with the decision of the arbitrator is if the arbitrator did not show a basis for interfering with the discretion to dismiss that was exercised by the employer. As stated in <em>Geza v ZFC</em> 1998 (1) ZLR 137 (SC), appeal courts should not lightly alter penalties of dismissal without showing that there was gross unreasonableness, <em>mala fide</em> or capriciousness.</p> <p> </p> <p>In considering the appropriate penalty to impose on the appellant the disciplinary authority stated <em>inter alia</em> that the conduct of that appellant went to the root of the contract of employment. Furthermore, that in terms of the law, once it is proved that the conduct complained of goes to the root of the contract of employment, the penalty to be imposed lies squarely at the disposal of the employer. The appellant’s plea for a written warning was found not to meet the justice of the case. On the strength of authorities of the Supreme Court cited in the Disciplinary Authority’s determination, the appellant was dismissed from employment. </p> <p> </p> <p>In considering whether the dismissal of the appellant was lawful the Arbitrator opined that as the appellant was a first offender, a correctional penalty was the most appropriate. He referred to a judgement of the Labour Court <em>NEI Zimbabwe (Pvt) Ltd v Makuzva</em> LC/H/248/04 and quoted the following excerpt:</p> <p>“I am convinced that in providing for s 12B (4) in the Act, the Legislature meant to ensure that employers do not rush to dismissals merely because the acts of misconduct were dismissible … any disciplinary action taken must be largely corrective and reasonable.”</p> <p> </p> <p>The Arbitrator proceeded to state that the same principle is echoed in s 7 (1) of the National Code of Conduct which provides as follows:</p> <p>“(1) In general, disciplinary action should, in the first instance, be educational and then corrective. Punitive action should only be taken when the said earlier steps have proved ineffective.”</p> <p> </p> <p> </p> <p>He further stated that this principle should have been a guiding factor in the exercise of the respondent’s discretion. Furthermore, that the respondent had in any event not suffered any prejudice and that there was nothing on the record to show that the appellant’s mitigating factors were reasonably assessed and taken into account. He also opined that as the contract of employment was not produced during the disciplinary hearing, the respondent’s stance that the misconduct went to the root of the contract was unreasonable as it was based on an inference. He proceeded to highlight that that the respondent was aware that the appellant had written the letter of undertaking after receiving a call and an email from Tetrad and that there was no finding of proof of any sinister motives linked to the letter of undertaking. He therefore found that the merits of the case do not warrant a penalty of dismissal. He proceeded to set aside the dismissal penalty and instead imposed one of a final written warning valid for six months.</p> <p> </p> <p>The Labour Court set aside the Arbitrator’s penalty of a final written warning and confirmed the appellant’s dismissal. It referred to the case of <em>Circle Cement (Pvt) Ltd v Chipo Nyawasha</em> SC 60/03 in which it was stated that once an employer takes a serious view of the misconduct committed by an employee to the extent that it considers it a repudiation of the contract, which repudiation it accepts by dismissing the employee, then the question of a penalty less severe than dismissal will not arise for consideration.</p> <p>The court <em>a quo</em> correctly found further guidance in the case of <em>ZB Financial Holdings v Maureen Manyarara</em> SC 2/12 where it was stated that even where mitigating factors are taken into account, this would not necessarily assist an employee where the employer considers the misconduct as one that is so serious as to go to the root of the contract of employment.</p> <p> </p> <p>The undisputed fact is that the appellant wrote a letter to Tetrad claiming that he was acting under instructions from DD Mining and General Supplies which had an ongoing contract or arrangement with the respondent in terms of which the respondent regularly placed orders. At p 5 of the judgement of the court <em>a quo</em> the learned judge aptly stated:</p> <p>“The crux of the matter is said to be that the respondent gave false information in the letter of undertaking that there was an on-going contract between the appellant and DD Mining and that he was acting under instructions from DD Mining.”</p> <p> </p> <p>By his conduct in writing the letter of undertaking that had falsehoods, the appellant abandoned his duty of safeguarding the interests of the respondent. He did not verify the truthfulness of what he was signing for and thereby binding the respondent as its representative in his capacity as the Acting Chief Finance Officer.</p> <p> </p> <p>The alleged or purported authorisation does not avail the appellant any relief in this regard. Furthermore, Tetrad did not write the letter on behalf of the appellant. The appellant wrote it and appended his signature thereto. The fact that the content of the letter was suggested by Tetrad does not take the appellant’s case any further. By his admission that he was told what to write in the letter, the appellant in essence admitted that he had abandoned the interests and the instructions of the respondent, his employer. </p> <p> </p> <p>The appellant signed the letter of undertaking without due diligence, thereby disregarding his duty to his employer. He committed an act and conducted himself in a manner that is inconsistent with express or implied terms of his contract of employment. This Court’s statement in the case of <em>Toyota Zimbabwe v Posi </em>2008 (1) ZLR 173 (S) is apposite:</p> <p>“It is a common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him <strong>if the circumstances of the commission of the offence show that the continuance of a normal employer and employee relationship has in effect been terminated.</strong> <em>Standard Chartered Bank Zimbabwe v Chapuka</em> SC-125-04.” (the emphasis is added<em>)</em></p> <p> </p> <p>The contention by the appellant that his conduct cannot be so viewed because the contract of employment was not produced during the hearing only goes to confirm the appellant’s unsuitability for continued employment with the respondent.</p> <p> </p> <p>It is settled that the decision on what penalty to impose on an employee is an exercise of discretion by the employer. That discretion however must be exercised judiciously. The arbitrator’s finding that the employer had not exercised this discretion judiciously was not founded on any valid consideration. The arbitrator seemed to labour under the mistaken belief that mitigating factors as provided for in s 12B(4) of the National Code of Conduct have the effect of altering the common law position that allows an employer who views an employee’s misconduct as one going to the root of their employment agreement, to exercise its discretion and terminate the relationship.</p> <p>   </p> <p>The following excerpt from <em>Standard Chartered Bank Zimbabwe Limited v Michael Chapuka</em> (<em>supra)</em> at page 7 of the judgement, now quoted more fully, is of assistance in the proper determination of matters of this nature:</p> <p>“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee<strong>, giving the former a <em>prima facie </em>right to dismiss the latter.</strong>   In <em>Clouston &amp; Co Ltd v Corry</em> [1906] AC 122 LORD JAMES OF HEREFORD remarked by way of a <em>dictum</em> at p 129:</p> <p> </p> <p>“Now the sufficiency of justification depends upon the extent of misconduct.   There is no fixed rule of law defining the degree of misconduct which will justify dismissal.   Of course, there may be misconduct in a servant which will not justify the termination of the contract of service by one of the parties to it against the will of the other.   On the other hand, <strong>misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal</strong>.” (the emphasis is added)</p> <p> </p> <p> </p> <p>Further, at pages 8 – 9 of the judgement the following is also stated:</p> <p>“In my judgment, what was said by the Tribunal about the effect of the misconduct committed by Chapuka against Standard Chartered would not have been sufficient to justify interference with the judgment of the appeals board.   The relevance of the statement by the Tribunal that the intention of Chapuka in committing the misconduct was not to defraud Standard Chartered and <strong>that no prejudice was suffered by Standard Chartered as a result of his acts is open to doubt, because the alleged intention of a fraudulent employee cannot be taken as a standard with which to determine whether an employer acted reasonably in taking the view that the misconduct was so serious in nature as to justify dismissal.</strong>” (emphasis added)</p> <p>For the reasons discussed above the decision of the court <em>a quo</em> cannot be faulted.</p> <p> </p> <p>In the result, the appeal fails in its entirety. Costs will follow the cause. It is therefore ordered as follows:</p> <p>The appeal is dismissed with costs.   </p> <p>                       </p> <p><strong>HLATSHWAYO JA:</strong>                                                                       I agree</p> <p> </p> <p><strong>BHUNU JA:  </strong>                                                                                    I agree</p> <p><em>Mbidzo Muchadehama &amp; Makoni,</em> appellant’s legal practitioners</p> <p><em>Mutamangira &amp; Associates</em>, respondents’ legal practitioners</p> <p>Innscor v George Chimhini SC 06/12; Mashonaland Turf Club v George Mutangadura SC 05/12; ZB Financial Holdings v Maureen Manyarara Sc03/12</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-1d0d9b295fe0c23f61c37f0e1d9d3b13bd338fae2951ddd7a35c3f1482628eff"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>              (21)</strong></p> <p> </p> <p>    </p> <p><strong>ALPHA    MADZIMA </strong></p> <p><strong>v</strong></p> <p><strong>MARANGE     RESOURCES     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HLATSHWAYO JA, MAVANGIRA JA &amp; BHUNU JA</strong></p> <p><strong>HARARE: NOVEMBER 4, 2016 &amp; FEBRUARY 22, 2019</strong></p> <p> </p> <p> </p> <p><em>L Uriri</em>, for the appellant</p> <p><em>I Ndudzo</em>, for the respondent</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA: </strong>This is an appeal against the whole judgement of the Labour Court, Harare, handed down on 6 March 2015.</p> <p> </p> <p><strong>BACKGROUND</strong></p> <p>The appellant was employed by the respondent as a Finance Manager in the year 2010. When the events that gave rise to this matter occurred in October 2012, he was the Acting Chief Finance Officer.</p> <p> </p> <p>On 3 October 2012, the appellant received a phone call which was later followed up by an email from Tetrad Investment Bank Limited (Tetrad). In both instances a request was made of him to write a letter of undertaking. The letter was to be written on the respondent’s letter head. The email reads:</p> <p>“<strong>DD Mining letter of undertaking …</strong></p> <p>Above supplier holds an order from yourselves which we have financed. We would be grateful if you could sign the attached letter of undertaking to pay to Tetrad on your letterhead.”</p> <p> </p> <p>The email was written by one Toddy Muchongwe, General Manager Corporate Banking at Tetrad and was addressed to the appellant. The body of the draft letter of undertaking that was attached to the email reads:</p> <p>“<strong>Undertaking to direct all payments to Tetrad account number ….</strong></p> <p>Acting under instructions received from … and pursuant to an ongoing contract/ arrangement between ourselves and … where we regularly place orders of varying quantities of … which we receive on account, we hereby irrevocably and unequivocally undertake to direct all payments as they fall due to the account held in your books for all goods received in good order and accepted by ourselves.</p> <p>The details of the account to which all payments will be directed are as follows:</p> <p>Account Name                        :</p> <p>            Account Number                    :</p> <p>            Branch                                     :</p> <p>We also undertake that there will not be a variation to the payment account unless we have received written instructions from Tetrad Investment Bank authorising such a variation.</p> <p>Should any circumstances arise to prevent or unduly delay the transfer of any funds due for payment into the said account necessary advices shall be given to the bank and in the absence of such advices the bank shall be entitled to follow up and obtain any confirmations from ourselves as may be deemed necessary.</p> <p>This letter is not transferable and will remain valid for as long as there are outstanding payments for goods received from … or unless otherwise cancelled by the bank and written confirmation has been received.”</p> <p> </p> <p>Also attached to the email, together with the draft letter of undertaking was a purchase order purporting to emanate from the respondent company to DD Mining and General Suppliers (Pvt) Ltd for an item described as “CE-125 PERIPHERAL PUMP” with a grand total value of “125 625.02”</p> <p> </p> <p>The appellant allegedly consulted his immediate superior, one Simbisayi Wilfred Munemo, who gave him authority and the appellant proceeded to put the Tetrad draft on the respondent’s letter head and he signed it. The appellant filled in the blanks in the draft letter of undertaking. Having done this the letter now reflected that the writer was “acting under instructions received from DD Mining General Suppliers and pursuant to an ongoing contract/ arrangement between ourselves and DD Mining and General Supplies.” He filled in the account name as “DD Mining and General Supplies.” He also filled in the account number and the branch name. He also filled in the blank in the last paragraph of the draft letter with the name “DD Mining and General Supplies” The letter was sent to Tetrad. Thereafter, Tetrad phoned the appellant’s superior to confirm that the letter of undertaking was in order.</p> <p> </p> <p>In September 2013 the appellant and his immediate superior were called by the police to give statements in relation to an alleged fraud relating to the financing arrangement of DD Mining and General Supplies by Tetrad. The immediate superior apparently stated that he had consulted with the Chief Executive Officer who saw nothing amiss about the appellant’s conduct in the letter of undertaking.</p> <p> </p> <p>In January 2014 the respondent company’s auditor was called by the Police in connection with pending fraud cases relating to the respondent. At the meeting the auditor was briefed about the letter of undertaking that was written to Tetrad. The auditor briefed the then Acting Chief Executive Officer who then raised two charges of misconduct against the appellant. </p> <p> </p> <p>The appellant was charged by the Acting Chief Executive officer with fraud and also with acting in a manner that is inconsistent with the fulfilment of express or implied conditions of his contract of employment as defined in sections 4(d) and 4(a) respectively, of the Labour (National Employment Code of Conduct) Regulations, 2006, SI 15 of 2006. The letter of suspension stated <em>inter alia,</em> that</p> <p>“The Company (Marange Resources Private Limited) (sic) became aware in January 2014 that on 3 October 2012 you wrote and issued a letter of undertaking to Tetrad Investment Bank Limited on behalf of DD Mining and General Supplies. It is a common cause fact that you were fully aware that the basis upon which the letter of undertaking was made had nothing to do with Marange Resources (PVT) LTD. It is common cause and clearly known by you that the purchase order upon which you acted upon (sic) bears no resemblance to the Marange resources (PVT) LTD order book/form. In your position you clearly know that Marange Resources (PVT) LTD does not trade as Marange Diamond Fields but you proceeded to commit the company to be tied to such an order and the associated transaction that occurred. It is further common cause fact that you were fully aware that at no time in the history of Marange Resources (PVT) LTD that DD Mining and General Supplies had conducted business with Marange Resources (PVT) LTD.”</p> <p> </p> <p> </p> <p>With specific reference to the charge preferred against the appellant in terms of s 4(a) (any act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment), the letter further stated:</p> <p>“… your position has a contractual and legal duty to act and conduct yourself honestly and solely in the interests of the Company. You wrote and issued a letter of undertaking that bound the Company to a financial transaction which had nothing to do with the Company. You breached the express and implied term of your contract of employment in relation to trust and integrity. You occupy a position of trust and your act and conduct in this matter was inconsistent with the above as you breached the trust bestowed upon you by the Company to manage and protect its interests. Your act and conduct in this matter has demonstrably lacked integrity to an extent of putting the company to serious risk, disrepute and irreparable damage.” </p> <p> </p> <p>The matter went before a Disciplinary Committee which found the appellant guilty of the latter charge, conduct inconsistent with express or implied provisions of the contract of employment. The appellant was consequently dismissed from employment. </p> <p> </p> <p>Dissatisfied with his dismissal, the Appellant referred the matter to a Labour Officer for conciliation in terms of s 8 of the Labour (National Employment Code) Regulations, 2006, S.I. 15/2006 (the National Code of Conduct). The matter was heard by a labour officer in terms of s 93 of the Labour Act.  Following unsuccessful conciliation, the matter was referred to arbitration in terms of s 98 of the Labour Act.</p> <p> </p> <p>The arbitrator agreed that an infraction had indeed been committed by the appellant and confirmed his conviction. He however set aside the penalty of dismissal and replaced it with a final written warning valid for 6 months and he reinstated the appellant. </p> <p> </p> <p>Disgruntled with the arbitral award, the respondent appealed to the Labour Court. Equally dissatisfied with the award, the appellant also filed a cross appeal on eight grounds. These grounds of appeal are not material to the determination of this appeal.</p> <p> </p> <p>The Labour Court upheld the main appeal and dismissed the cross appeal. The arbitral award was set aside and substituted with the following;</p> <p>“The penalty of dismissal of the respondent be and is hereby confirmed and the   reinstatement of the respondent be and is hereby set aside.”</p> <p> </p> <p><strong>THIS APPEAL</strong></p> <p>This is the finding that is the subject of this appeal. Two issues arise from the lengthy grounds of appeal relied on by the appellant. These are:</p> <ol><li>Whether or not the Labour Court was correct in confirming the finding of guilty on the second charge preferred.</li> <li>Whether or not the Labour Court had a basis on which to interfere with the decision of the arbitrator on the issue of the appropriate sentence.</li> </ol><p> </p> <p>I now deal with these questions <em>seriatim</em>.</p> <ol><li><strong>Whether or not the Labour Court was correct in making a finding of guilty on the second charge preferred.</strong></li> </ol><p>The appellant maintains that the finding by the disciplinary hearing that he is guilty of “any act or conduct inconsistent with the fulfilment of the express or implied conditions of one’s contract of employment” was erroneous as there was no evidence to justify such a finding. </p> <p> </p> <p>It is common cause that at the material time, the appellant was the Acting Chief Finance Officer of the respondent. Although the appellant’s contract of employment was not produced at any stage and is not part of the record, it is trite that all contracts of employment contain both express and implied provisions. Every contract of employment is hinged on a relationship of trust between the employer and the employee. This relationship of trust is an implied provision in any employment contract even if it may not be expressly stated. In signing a contract of employment, an employee undertakes to carry out the express and implied mandate of the employer. </p> <p> </p> <p>It is an essential principle in employer and employee relationships that an employee has a duty to safeguard the interests of the employer. In <em>casu,</em> the appellant’s position as the Acting Finance Officer imposed on him the duty to exercise due care and diligence. During the disciplinary hearing the appellant reportedly conceded and confirmed that it was his duty and role to advise the respondent company’s Finance Department.</p> <p>This Court has on a number of occasions pronounced on an employee’s conduct that is inconsistent with the express or implied conditions of the contract of employment. One such case is <em>Standard Chartered Bank Zimbabwe Limited v Michael Chapuka</em> SC 125/04 where the following is stated at page 7 of the judgement:</p> <p>“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee … (emphasis added)</p> <p>  </p> <p> </p> <p>The Appellant conceded that the letter that gave rise to the litigation between the parties was written at Tetrad’s bidding and initiative.  The contents of the letter were authored by Tetrad. The appellant was an employee of the respondent and not of Tetrad. The appellant’s conduct in writing the letter and signing it amounts to him acting in pursuance of the interests of a third party, which third party is not included in the employer-employee relationship that he had with the respondent. This is so because by appending his signature to the letter of undertaking, the appellant vouched for the truthfulness of the contents of the letter. He vouched for the correctness of the allegations in a letter that did not emanate from or benefit his employer. In addition, he did this without ascertaining the truth of the contents of the letter in circumstances where other departments of the respondent company would have been in a position to advise him accordingly.</p> <p> </p> <p>It is undisputed that the appellant did not verify the contents of the letter in question, in particular, that there was an ongoing contract between the respondent and DD Mining and General Supplies. Appending a signature to a letter that communicated what had not been verified by the appellant was not only negligent conduct on his part but it also exhibited a lack of the diligence that would be expected of an employee of his level and in fact, of every employee of whatever level. The best interests of an employer can only be achieved if employees diligently verify any undertaking that binds their employer. As was aptly stated in the Namibian case of <em>Helao Nafidi Town Council v Shivolo</em> [2016] NAHCMD [2016] at para 70:</p> <p>“The drift of Roman-Dutch and English authority is to the effect that the employer-employee relationship imposes a duty on the employee to act in the employer’s best interest. The employee has a duty not to work against the employer’s interests. <strong>The duty arises even though there is no express term in the contract of employment to that effect.</strong> As has been aptly stated in Lesotho Highlands Development Authority v Sole, the liability for breach of a fiduciary duty is not necessarily delictual or contractual but sui generis and will depend on the particular circumstances of each case. At the core is the principle that a person placed in a fiduciary duty will be in breach of his/her duty by failing to act bona fide in the interests of the employer.” (emphasis added)</p> <p> </p> <p> </p> <p>The question arises whether, despite the alleged assent by his superior, the appellant ought to be said to have not acted in the best interests of the employer when he signed the letter of undertaking without verifying its contents. The answer ought to be in the negative. By failing to verify the contents of the letter of undertaking before appending his signature, the appellant did not act in the interests of the employer. It was his signature that was to be appended on the letter and not that of his superior. There was therefore a duty on him to verify the contents that he signed for. In any event, it was not the appellant’s case that his superior verified the contents of the letter of undertaking.</p> <p> </p> <p>The fact that the appellant sought and obtained approval from his immediate superior did not take away from him the duty to verify information that had the effect of binding his employer. The immediate superior’s approval did not amount to verification of the content of the letter.</p> <p> </p> <p>The following excerpt from the Disciplinary Authority’s determination is apposite insofar as it reflects how it arrived at and justified the finding of guilty:</p> <p>“2. With respect to s 4 (a) the Respondent is a Senior Manager who acknowledges that he also has an advisory role to his Supervisors and he should have conducted himself honestly and diligently in the interest of the organisation:</p> <ol><li>He ought to have verified that Marange Resources had an existing order and Contract with DD Mining,</li> <li>The letter of undertaking should have had Marange Resources References,</li> </ol><p>The respondent merely printed a document without applying his mind to it</p> <ol><li>The fact that Mr Munemo Knew about this transaction does not make it right, and it does not absolve Mr Munemo of answering charges if the company chooses to do so,</li> <li>The Respondent should take full responsibility for the letter of undertaking and its consequences. He cannot run away from his signature……… the act of the respondent is tantamount to gross negligence, in writing a letter of Undertaking on behalf of Marange Resources without verifying facts from other departments. In his evidence he failed to take Responsibility for what the letter was stating.”</li> </ol><p> </p> <p> </p> <p> </p> <p>Viewed in the light of the above, the confirmations by the arbitrator and subsequently by the court <em>a quo</em> of the verdict of guilty by the Disciplinary Authority cannot be faulted.</p> <p> </p> <p>In the result, the appellant was therefore correctly found guilty of the misconduct of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment. The court <em>a quo</em> thus correctly found that it could not interfere with the finding of guilty with which the appellant was aggrieved. It was incumbent upon the appellant to ensure the truth of what he was signing for and in this he failed.</p> <p> </p> <ol><li><strong>Whether or not the court a <em>quo</em> had a basis to interfere with the decision of the arbitrator on sentence</strong></li> </ol><p>It is settled in our law that an appellate court must be slow in interfering with the discretion exercised by a lower court. 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 some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the material for so doing.  See <em>Barros &amp; Anor v Chimphonda</em> 1999 [1] ZLR 58 [S] at 62F – 63A.</p> <p> </p> <p>The Labour Court sat as an appellate tribunal. The only basis on which it could have interfered with the decision of the arbitrator is if the arbitrator did not show a basis for interfering with the discretion to dismiss that was exercised by the employer. As stated in <em>Geza v ZFC</em> 1998 (1) ZLR 137 (SC), appeal courts should not lightly alter penalties of dismissal without showing that there was gross unreasonableness, <em>mala fide</em> or capriciousness.</p> <p> </p> <p>In considering the appropriate penalty to impose on the appellant the disciplinary authority stated <em>inter alia</em> that the conduct of that appellant went to the root of the contract of employment. Furthermore, that in terms of the law, once it is proved that the conduct complained of goes to the root of the contract of employment, the penalty to be imposed lies squarely at the disposal of the employer. The appellant’s plea for a written warning was found not to meet the justice of the case. On the strength of authorities of the Supreme Court cited in the Disciplinary Authority’s determination, the appellant was dismissed from employment. </p> <p> </p> <p>In considering whether the dismissal of the appellant was lawful the Arbitrator opined that as the appellant was a first offender, a correctional penalty was the most appropriate. He referred to a judgement of the Labour Court <em>NEI Zimbabwe (Pvt) Ltd v Makuzva</em> LC/H/248/04 and quoted the following excerpt:</p> <p>“I am convinced that in providing for s 12B (4) in the Act, the Legislature meant to ensure that employers do not rush to dismissals merely because the acts of misconduct were dismissible … any disciplinary action taken must be largely corrective and reasonable.”</p> <p> </p> <p>The Arbitrator proceeded to state that the same principle is echoed in s 7 (1) of the National Code of Conduct which provides as follows:</p> <p>“(1) In general, disciplinary action should, in the first instance, be educational and then corrective. Punitive action should only be taken when the said earlier steps have proved ineffective.”</p> <p> </p> <p> </p> <p>He further stated that this principle should have been a guiding factor in the exercise of the respondent’s discretion. Furthermore, that the respondent had in any event not suffered any prejudice and that there was nothing on the record to show that the appellant’s mitigating factors were reasonably assessed and taken into account. He also opined that as the contract of employment was not produced during the disciplinary hearing, the respondent’s stance that the misconduct went to the root of the contract was unreasonable as it was based on an inference. He proceeded to highlight that that the respondent was aware that the appellant had written the letter of undertaking after receiving a call and an email from Tetrad and that there was no finding of proof of any sinister motives linked to the letter of undertaking. He therefore found that the merits of the case do not warrant a penalty of dismissal. He proceeded to set aside the dismissal penalty and instead imposed one of a final written warning valid for six months.</p> <p> </p> <p>The Labour Court set aside the Arbitrator’s penalty of a final written warning and confirmed the appellant’s dismissal. It referred to the case of <em>Circle Cement (Pvt) Ltd v Chipo Nyawasha</em> SC 60/03 in which it was stated that once an employer takes a serious view of the misconduct committed by an employee to the extent that it considers it a repudiation of the contract, which repudiation it accepts by dismissing the employee, then the question of a penalty less severe than dismissal will not arise for consideration.</p> <p>The court <em>a quo</em> correctly found further guidance in the case of <em>ZB Financial Holdings v Maureen Manyarara</em> SC 2/12 where it was stated that even where mitigating factors are taken into account, this would not necessarily assist an employee where the employer considers the misconduct as one that is so serious as to go to the root of the contract of employment.</p> <p> </p> <p>The undisputed fact is that the appellant wrote a letter to Tetrad claiming that he was acting under instructions from DD Mining and General Supplies which had an ongoing contract or arrangement with the respondent in terms of which the respondent regularly placed orders. At p 5 of the judgement of the court <em>a quo</em> the learned judge aptly stated:</p> <p>“The crux of the matter is said to be that the respondent gave false information in the letter of undertaking that there was an on-going contract between the appellant and DD Mining and that he was acting under instructions from DD Mining.”</p> <p> </p> <p>By his conduct in writing the letter of undertaking that had falsehoods, the appellant abandoned his duty of safeguarding the interests of the respondent. He did not verify the truthfulness of what he was signing for and thereby binding the respondent as its representative in his capacity as the Acting Chief Finance Officer.</p> <p> </p> <p>The alleged or purported authorisation does not avail the appellant any relief in this regard. Furthermore, Tetrad did not write the letter on behalf of the appellant. The appellant wrote it and appended his signature thereto. The fact that the content of the letter was suggested by Tetrad does not take the appellant’s case any further. By his admission that he was told what to write in the letter, the appellant in essence admitted that he had abandoned the interests and the instructions of the respondent, his employer. </p> <p> </p> <p>The appellant signed the letter of undertaking without due diligence, thereby disregarding his duty to his employer. He committed an act and conducted himself in a manner that is inconsistent with express or implied terms of his contract of employment. This Court’s statement in the case of <em>Toyota Zimbabwe v Posi </em>2008 (1) ZLR 173 (S) is apposite:</p> <p>“It is a common law position that commission by an employee of conduct inconsistent with the fulfilment of express or implied conditions of the contract of employment entitles the employer to dismiss him <strong>if the circumstances of the commission of the offence show that the continuance of a normal employer and employee relationship has in effect been terminated.</strong> <em>Standard Chartered Bank Zimbabwe v Chapuka</em> SC-125-04.” (the emphasis is added<em>)</em></p> <p> </p> <p>The contention by the appellant that his conduct cannot be so viewed because the contract of employment was not produced during the hearing only goes to confirm the appellant’s unsuitability for continued employment with the respondent.</p> <p> </p> <p>It is settled that the decision on what penalty to impose on an employee is an exercise of discretion by the employer. That discretion however must be exercised judiciously. The arbitrator’s finding that the employer had not exercised this discretion judiciously was not founded on any valid consideration. The arbitrator seemed to labour under the mistaken belief that mitigating factors as provided for in s 12B(4) of the National Code of Conduct have the effect of altering the common law position that allows an employer who views an employee’s misconduct as one going to the root of their employment agreement, to exercise its discretion and terminate the relationship.</p> <p>   </p> <p>The following excerpt from <em>Standard Chartered Bank Zimbabwe Limited v Michael Chapuka</em> (<em>supra)</em> at page 7 of the judgement, now quoted more fully, is of assistance in the proper determination of matters of this nature:</p> <p>“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee<strong>, giving the former a <em>prima facie </em>right to dismiss the latter.</strong>   In <em>Clouston &amp; Co Ltd v Corry</em> [1906] AC 122 LORD JAMES OF HEREFORD remarked by way of a <em>dictum</em> at p 129:</p> <p> </p> <p>“Now the sufficiency of justification depends upon the extent of misconduct.   There is no fixed rule of law defining the degree of misconduct which will justify dismissal.   Of course, there may be misconduct in a servant which will not justify the termination of the contract of service by one of the parties to it against the will of the other.   On the other hand, <strong>misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal</strong>.” (the emphasis is added)</p> <p> </p> <p> </p> <p>Further, at pages 8 – 9 of the judgement the following is also stated:</p> <p>“In my judgment, what was said by the Tribunal about the effect of the misconduct committed by Chapuka against Standard Chartered would not have been sufficient to justify interference with the judgment of the appeals board.   The relevance of the statement by the Tribunal that the intention of Chapuka in committing the misconduct was not to defraud Standard Chartered and <strong>that no prejudice was suffered by Standard Chartered as a result of his acts is open to doubt, because the alleged intention of a fraudulent employee cannot be taken as a standard with which to determine whether an employer acted reasonably in taking the view that the misconduct was so serious in nature as to justify dismissal.</strong>” (emphasis added)</p> <p>For the reasons discussed above the decision of the court <em>a quo</em> cannot be faulted.</p> <p> </p> <p>In the result, the appeal fails in its entirety. Costs will follow the cause. It is therefore ordered as follows:</p> <p>The appeal is dismissed with costs.   </p> <p>                       </p> <p><strong>HLATSHWAYO JA:</strong>                                                                       I agree</p> <p> </p> <p><strong>BHUNU JA:  </strong>                                                                                    I agree</p> <p><em>Mbidzo Muchadehama &amp; Makoni,</em> appellant’s legal practitioners</p> <p><em>Mutamangira &amp; Associates</em>, respondents’ legal practitioners</p> <p>Innscor v George Chimhini SC 06/12; Mashonaland Turf Club v George Mutangadura SC 05/12; ZB Financial Holdings v Maureen Manyarara Sc03/12</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:43 +0000 Anonymous 10024 at http://www.zimlii.org ZB Bank Limited v Marimo (SC 21 of 2020, Civil Appeal SC 976 of 2017) [2020] ZWSC 21 (13 February 2020); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/21 <span class="field field--name-title field--type-string field--label-hidden">ZB Bank Limited v Marimo (SC 21 of 2020, Civil Appeal SC 976 of 2017) [2020] ZWSC 21 (13 February 2020);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2259" hreflang="x-default">Confidential information</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2198" hreflang="x-default">code of conduct in effect for employees</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2020/21/2020-zwsc-21.pdf" type="application/pdf; length=304851">2020-zwsc-21.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-688cdd10cc2fe8ef3be56eddff0a105e5f1458646d8a32f7e2e666fb774bb78f"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2020%2F21%2F2020-zwsc-21.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2020/21/2020-zwsc-21.pdf" title="2020-zwsc-21.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:25 +0000 Anonymous 10007 at http://www.zimlii.org Javangwe v Vortigen Investments Private Limited t/a CPL (SC 49 of 2020, Civil Appeal SC 346 of 2018) [2020] ZWSC 49 (16 March 2020); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/49 <span class="field field--name-title field--type-string field--label-hidden">Javangwe v Vortigen Investments Private Limited t/a CPL (SC 49 of 2020, Civil Appeal SC 346 of 2018) [2020] ZWSC 49 (16 March 2020);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2242" hreflang="x-default">Code of conduct</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2198" hreflang="x-default">code of conduct in effect for employees</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> <div class="field__item"><a href="/taxonomy/term/2252" hreflang="x-default">Labour Act [Chapter 28:01]</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2020/49/2020-zwsc-49.pdf" type="application/pdf; length=235467">2020-zwsc-49.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-d7fa4631749b8432856ae50f59e974426ff6b5ead94866bb4f964f329459fc51"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2020%2F49%2F2020-zwsc-49.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2020/49/2020-zwsc-49.pdf" title="2020-zwsc-49.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:21 +0000 Anonymous 10001 at http://www.zimlii.org Hwange Colliery Company Limited v Ndlovu & Anor (SC 46 of 2020, Civil Appeal SC 45 of 2018) [2018] ZWSC 46 (02 August 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/46 <span class="field field--name-title field--type-string field--label-hidden">Hwange Colliery Company Limited v Ndlovu &amp; Anor (SC 46 of 2020, Civil Appeal SC 45 of 2018) [2018] ZWSC 46 (02 August 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2242" hreflang="x-default">Code of conduct</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> <div class="field__item"><a href="/taxonomy/term/2245" hreflang="x-default">strike action by employee</a></div> <div class="field__item"><a href="/taxonomy/term/1981" hreflang="en">Termination of Employment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/46/2018-zwsc-46.pdf" type="application/pdf; length=337955">2018-zwsc-46.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-131b3fe9915beb6bb564bbba6c38ea7ed514b438ffb49d711f4d3facb4f6bfbf"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2018%2F46%2F2018-zwsc-46.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2018/46/2018-zwsc-46.pdf" title="2018-zwsc-46.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:17 +0000 Anonymous 9998 at http://www.zimlii.org Sakarombe N.O & ANor v Montana Carswell Meats (Private) LImited (SC 44 of 2020, Civil Appeal SC 865 of 2018) [2019] ZWSC 44 (03 October 2019); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/44 <span class="field field--name-title field--type-string field--label-hidden">Sakarombe N.O &amp; ANor v Montana Carswell Meats (Private) LImited (SC 44 of 2020, Civil Appeal SC 865 of 2018) [2019] ZWSC 44 (03 October 2019);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2242" hreflang="x-default">Code of conduct</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2019/44/2019-zwsc-44.pdf" type="application/pdf; length=291820">2019-zwsc-44.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-322d37efc6e720a9fe71b1fbabb4a0dc40c9981ebef8b4b62609ce7e04bffe24"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2019%2F44%2F2019-zwsc-44.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2019/44/2019-zwsc-44.pdf" title="2019-zwsc-44.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:16 +0000 Anonymous 9996 at http://www.zimlii.org Nhari v Zimbabwe Allied Banking Group Limited (SC 6 of 2020, Civil Appeal SC 192 of 2011) [2017] ZWSC 6 (02 February 2017); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/6 <span class="field field--name-title field--type-string field--label-hidden">Nhari v Zimbabwe Allied Banking Group Limited (SC 6 of 2020, Civil Appeal SC 192 of 2011) [2017] ZWSC 6 (02 February 2017);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2236" hreflang="x-default">Appeal (EMPLOYMENT)</a></div> <div class="field__item"><a href="/taxonomy/term/2237" hreflang="x-default">Appeal against determination of disciplinary committee under disciplinary code</a></div> <div class="field__item"><a href="/taxonomy/term/2103" hreflang="x-default">Disciplinary proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2198" hreflang="x-default">code of conduct in effect for employees</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2017/6/2017-zwsc-6.pdf" type="application/pdf; length=234720">2017-zwsc-6.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-d9b5471a0d957bc270f161bb16e8397cefde711a54a521b1dfd9cf0f391a878b"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2017%2F6%2F2017-zwsc-6.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2017/6/2017-zwsc-6.pdf" title="2017-zwsc-6.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:13 +0000 Anonymous 9992 at http://www.zimlii.org Gudza v City of Harare (SC 17 of 2020, Civil Appeal SC 235 of 2013) [2020] ZWSC 17 (10 February 2020); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/17 <span class="field field--name-title field--type-string field--label-hidden">Gudza v City of Harare (SC 17 of 2020, Civil Appeal SC 235 of 2013) [2020] ZWSC 17 (10 February 2020);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2101" hreflang="x-default">E</a></div> <div class="field__item"><a href="/taxonomy/term/2102" hreflang="x-default">EMPLOYMENT</a></div> <div class="field__item"><a href="/taxonomy/term/2104" hreflang="x-default">Dismissal</a></div> <div class="field__item"><a href="/taxonomy/term/2116" hreflang="x-default">Employee</a></div> <div class="field__item"><a href="/taxonomy/term/2198" hreflang="x-default">code of conduct in effect for employees</a></div> <div class="field__item"><a href="/taxonomy/term/2117" hreflang="x-default">disciplinary proceedings against employee</a></div> <div class="field__item"><a href="/taxonomy/term/2118" hreflang="x-default">misconduct of employee</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:37</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2020/17/2020-zwsc-17.pdf" type="application/pdf; length=189329">2020-zwsc-17.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-576073f28cd2cf1e2b74dcbaf6a85eb59cb43f3313ecfc733cda7882bad8d388"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2020%2F17%2F2020-zwsc-17.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2020/17/2020-zwsc-17.pdf" title="2020-zwsc-17.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:37:03 +0000 Anonymous 9979 at http://www.zimlii.org