Court name
Supreme Court of Zimbabwe
Case number
SC 26 of 2003
Civil Appeal 254 of 2002

Gauntlet Security Services (Pvt) Ltd. v Mubaiwa (54/02) (SC 26 of 2003, Civil Appeal 254 of 2002) [2003] ZWSC 26 (15 October 2003);

Law report citations
Media neutral citation
[2003] ZWSC 26
















Judgment
No. SC 26/03


Civil
Appeal No. 254/02








GAUNTLET
SECURITY SERVICES (PRIVATE) LIMITED





v
GEORGE MUBAIWA








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
MALABA JA & GWAUNZA JA


HARARE,
JULY 10 & OCTOBER16, 2003








J
B Colegrave
,
for the appellant





The
respondent in person





GWAUNZA JA:
This is an appeal against the judgment of the Labour Relations
Tribunal (“the Tribunal”), in terms of which the
appellant was
ordered to reinstate the respondent to his job, with no loss of
salary and benefits, with effect from the date of his
suspension.
In the event that reinstatement was no longer possible, the appellant
was ordered by the Tribunal to pay the respondent
damages in lieu of
reinstatement. The quantum of the damages was either to be agreed
between the parties or, in the case of disagreement
over the issue,
determined by the Tribunal.





The
background to the dispute is as follows. The respondent was
employed as a security guard by the appellant. On the night
of
30 April 1998 the respondent was on guard duties at No. 32 James
Martin Road in Southerton. An “in-house”
guard, by the name of
Mutamiri, was also on duty guarding the same premises. Mutamiri
alleged he had observed the respondent trying
to fish out clothing
material through the window of the factory that he was guarding. He
was using a piece of wire which, when
confronted by Mutamiri, he is
alleged to have indicated he had thrown into the tall grass.
Mutamiri alleged that the respondent
confessed to an attempt to steal
the material and asked for forgiveness. The respondent is said to
have repeated the same confession
to Mutamiri and another guard
called Tinarwo, a Commando security guard, who had been called by
Mutamiri. Later, when a certain
lance corporal for the appellant
company, referred to only as John, came to the premises on one of his
rounds, he was briefed by
Mutamiri about the incident. Both
Mutamiri and Lance Corporal John alleged the respondent had admitted
trying to steal the material
and asked for forgiveness. Lance
Corporal John wrote a report on the incident, and invited the
respondent to sign it. The respondent
refused to do so.





The
matter was duly reported to the authorities within the appellant
company. The respondent received, but refused to sign, a
notification
of suspension pending investigations. A disciplinary
hearing was thereafter held, at which the respondent denied trying to
fish
out the material or confessing to this effect before Mutamiri,
the Commando security guard or Lance Corporal John. Only the latter
gave evidence, Mutamiri and the Commando security guard not having
been called. The disciplinary committee went to the factory
premises in question for an inspection
in
loco
and concluded it
was quite possible for one to fish material out of the window in the
manner alleged. They accepted the evidence
of Lance Corporal John
against that of the respondent and found him guilty, a finding that
carried the penalty of dismissal.





The
respondent refused to sign the dismissal form and appealed to the
local joint committee of the National Employment Council for
the
Commercial Sector (“NECCS”). The appeal was upheld, it being
the finding of the joint committee that the appellant
in
casu
had failed to
prove its case against the respondent. The appellant was ordered to
reinstate the respondent.





The appellant
then appealed against this decision, and the appeal was heard before
the Negotiating Committee of the NECCS. The Negotiating
Committee
dismissed the appeal, it being noted on its behalf:





“From
the evidence above, the negotiating committee noted that it was Lance
Corporal John’s word against that of the respondent.
There is no
other evidence to support what Lance Corporal John has outlined. In
the absence of supporting evidence from Mutamiri
and Tinarwo, the
employee is given the benefit of the doubt.”





It is against
this decision that the appellant appealed to the Tribunal.





The chairman
of the Tribunal, Mr Bhunu, was satisfied the negotiating
committee had properly not placed any weight on Lance
Corporal John’s
evidence because it was both uncorroborated and, to a large extent,
hearsay. He also found it did not help the
appellant’s case that
no attempt had been made by Mutamiri or Lance Corporal John to find
the piece of wire the respondent had
allegedly thrown into the tall
grass after unsuccessfully trying to fish out material through the
window. He dismissed the appeal,
after noting at p 2 of the
judgment:





“That
being the case, the negotiating committee was correct in according
the respondent the benefit of the doubt.”





The
appellant’s original grounds of appeal made no reference to the
appeal being on a point of law as was required by s 92(2)
of the
Labour Relations Act, which was then applicable. The appellant then
successfully applied for leave to amend the original
grounds of
appeal to include a new ground reading as follows:





“The
learned chairman of the Labour Relations Tribunal erred in law in
holding that the appellant was required to prove its case for
the
dismissal of the respondent beyond reasonable doubt, rather than upon
a balance of probabilities.”





Mr Colegrave,
who appeared for the appellant, sought to persuade the Court that the
use of the phrase “reasonable doubt” by the chairman of
the
Tribunal was influenced by the fact that however the original charge
against the respondent was framed, the latter was, in effect,
dismissed because of an attempted theft. That being the case,
Mr 
Colegrave
contended, it could very well be that the chairman considered the
“court
a quo”
(
sic)
was correct in dealing with the case upon the basis of proof beyond
reasonable doubt.






I have searched in vain for any
indication in the judgment of Mr Bhunu that he at any time held
that the appellant was required
to prove its case beyond “reasonable
doubt”. The only reference to reasonable doubt in that judgment
is found in the notation
cited above, where Mr Bhunu expressed
agreement with the negotiating committee’s decision to give the
respondent the benefit
of the doubt. There is, in my view, nothing
to suggest that the word “doubt” was used in the context of, or
to denote, the
burden of proof that the appellant, as the
respondent’s employer, bore.






While the chairman of the
Tribunal might have at the back of his mind kept the thought that the
case before him, being a civil matter,
had to be proved on a balance
of probabilities, he did not make any reference to this burden having
been discharged. Certainly,
he did not hold that the appellant was
required to prove its case beyond a reasonable doubt.






I
find, in the result, that there is no basis for the allegation that
the chairman of the Tribunal held that the appellant was required
to
prove its case beyond a reasonable doubt.






The
appellant cited two other grounds of appeal. It has, however, not
been asserted in relation to these grounds that they were
on a point
of law. That it was not intended to make that averment is in effect
suggested by the appellant’s application to introduce
the new
ground – now discredited – pertaining to the burden of proof that
the appellant bore.






It is trite that appeals
against decisions of the Tribunal can only be on questions of law.
This Court, in a long range of decisions
(see, for instance,
Muzuva
v United Bottlers (Pvt) Ltd

1994 (1) ZLR 217;
Hama
v National Railways of Zimbabwe

1996 (1) ZLR 664 (S);
Mpumela
v Berger Paints (Pvt) Ltd

1999 (2) ZLR 146 (S)), has set down the general test to be applied in
determining whether the point appealed against is one of fact
or law.
Some findings of the Tribunal are clearly points of law. Others,
which ordinarily would have been points of fact, become
points of law
by virtue of being so outrageous in their defiance of logic as to
amount to a serious misdirection. This point was
emphasised by
EBRAHIM  JA in
National
Foods Ltd v Mugadza

SC-105-95, when he commented:






“It
is true that this Court only has jurisdiction to hear an appeal from
the Tribunal on a point of law. But clearly if there is
a serious
misdirection on the facts it amounts to a misdirection in law. The
giving of reasons that are bad in law constitutes
a failure to hear
and determine according to law.”






An
allegation of this nature has not been made in relation to the
appellant’s other grounds of appeal. Even had it been so made,
I
have little doubt the appellant would have had considerable
difficulty in proving it.






In the first ground of appeal,
the appellant alleges misdirection on the part of the Tribunal, in
that the chairman made a final ruling
on the matter without first
affording the appellant the opportunity of calling Mutamiri and the
Commando security guard. The appellant
brought charges against the
respondent. The burden of gathering enough evidence to prove the
case against the respondent clearly
lay with the appellant. By not
securing the evidence of Mutamiri and the Commando security guard,
the appellant ran the risk of
not being able to place evidence that
was crucial to its case before, firstly, the negotiating committee
and, thereafter, the Tribunal.
A finding based on the clearly
insufficient facts and evidence placed before the court
a quo,
that the respondent should be given the benefit of the doubt, in my
view, does not amount to a misdirection.







The appellant claims, lastly,
that the chairman of the Tribunal erred in finding it improbable that
Mutamiri and Lance Corporal John
would have failed to arrest the
respondent and report the matter to the police if the respondent had
indeed been caught red-handed
and admitted his guilt. This was
clearly a finding based on facts. Arresting a thief caught
virtually red-handed is a normal
consequence of detection. I do not
consider the finding to be so outrageous or so irrational as to
amount to any misdirection.
It cannot, in my view, be said of that
finding that “no sensible person who had applied his mind to the
question to be decided”
would have arrived at it. (
Bitcon
v Rosenberg
1936 AD
380 at 397).






In
the light of the foregoing, I find that the appellant has failed to
show that the appeal was on any points of law. Such an appeal
must
therefore fail.





It
is, in the premises, ordered as follows –






“The
appeal is dismissed with costs.”












SANDURA  JA:
I agree.











MALABA
JA: I agree.












Coghlan, Welsh & Guest
appellant's legal practitioners