Court name
Supreme Court of Zimbabwe
Case number
SC 61 of 2004
Civil Appeal 422 of 2002

Zimbabwe Banking Corporation Ltd. v Ndlovu (22/02) (SC 61 of 2004, Civil Appeal 422 of 2002) [2004] ZWSC 61 (22 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 61


















DISTRIBUTABLE
(59)


Judgment
No. SC 61/04


Civil
Appeal No. 422/02








ZIMBABWE
BANKING CORPORATION LIMITED v THANDO NDLOVU








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA


HARARE,
MARCH 1 & SEPTEMBER 23­, 2004








R
Y Phillips
, for the
appellant





A
M Gijima
, for the
respondent





MALABA
JA: This is an appeal against a judgment of the Labour Relations
Tribunal (now the Labour Court) (“the Tribunal”)
dated 8 November
2002, in terms of which an appeal from a decision of the Appeals
Board of the National Employment Council for
the Banking Sector (“the
appeals board”) setting aside the decision by the appellant’s
Grievance and Disciplinary Committee
(“the committee”) finding
the respondent guilty of misconduct and dismissing him from
employment was dismissed with costs.





The
respondent was employed by the appellant (“Zimbank”) as an
investigations officer based at its Jason Moyo Street Branch
in
Bulawayo. On 14 October 1999 he was charged before a hearing
officer with four counts of committing category D offences
under
the Code of Conduct contained in Statutory Instrument 273/00. Three
of the offences involved fraud, it being alleged that
he facilitated
the opening of fictitious accounts at Zimbank’s Branches in
Bulawayo and Masvingo with the intention of defrauding
Zimbank and
had stolen cheques deposited into these accounts, from which funds
were then fraudulently withdrawn with his knowledge
and
participation. The fourth count charged that he was absent from
work for five days or more without authority or reasonable
cause.
The hearing officer found that he had committed the acts of
misconduct as charged and imposed the penalty of dismissal.





The
respondent appealed to the committee, which dismissed the appeal on
2 December 1999.





On
13 December 1999 the respondent appealed to the appeals board.
On 7 February 2000 the appeals board set aside the
decision of
the committee dismissing the respondent from employment and ordered
his reinstatement.





The
appeal by Zimbank to the Tribunal on 18 February 2000 against
the decision of the appeals board was unsuccessful.





On
appeal Zimbank confined its argument to count three only and sought
to show that, on the evidence adduced against the respondent
on that
count, the Tribunal’s decision that he was not guilty as charged
and liable to dismissal was grossly unreasonable. The
appeal
therefore succeeds or fails upon the consideration of the correctness
or otherwise of the decision of the Tribunal on the
evidence led
against the respondent on count three only.





It
was common cause before the various bodies which heard the case
against the respondent that the fraud which gave rise to the
allegation of misconduct being levelled against him was committed
against Zimbank’s Branch in Masvingo. An account was opened
there
on 23 February 1999 under the name Phillip Tadzimirwa by a
person who did not answer to this name. A blank cheque
was stolen
from At The Ready Wholesalers (Private) Limited trading as Power
Sales (”Power Sales”) and purported to have been
drawn for a sum
of $614 921.68 in favour of Phillip Tadzimirwa before being
deposited into the fraudulent account on 25 February
1999.
Withdrawals of amounts of $250 000.00 and $300 000.00 were
made from this account on 6 and 10 March 1999 respectively.
The
question for determination was whether or not the evidence adduced
proved on a balance of probability that the respondent facilitated
the commission of the fraud on his employer.





The
evidence, on the consideration of which the different bodies
determined the question of the respondent’s involvement in the
fraud differently, was in the form of two affidavits deposed to by
two men who claimed to have been involved in the commission of
the
fraud.





The
first affidavit was sworn to by Taurayi Makadzange
(“Makadzange”). He is a former employee of Zimbank who was
dismissed
from employment on allegations of fraud committed against
Zimbank. He said the respondent, who had investigated allegations
of
fraud which led to his dismissal from employment, approached him
and offered to ensure that the pending case against him was dropped
provided he agreed to take part in the execution of a plan to defraud
Zimbank by opening a fictitious account at its Branch in Masvingo
and
have stolen cheques deposited into the account and money withdrawn
therefrom. He agreed.





On
23 February 1999 Makadzange went to Masvingo and opened the
account in the name of Phillip Tadzimirwa. A blank cheque
was
stolen from Power Sales in Belmont by the respondent’s
brother-in-law’s wife and handed to the respondent.





On
5 March 1999 the respondent’s brother-in-law, one Peter Dowa
(“Dowa”), advised Makadzange that the respondent
was already in
Masvingo and wanted them to go there. They travelled to Masvingo
the same day and spent the night with Dowa’s
relatives. The
respondent was booked in at the Flamboyant Hotel. In the
morning of 6 March 1999 they met the respondent
at Edgars Store
and proceeded to Zimbank’s Branch in Masvingo. On arrival, the
respondent went into the banking hall to
check whether everything was
in order. He came back and instructed him to withdraw a sum of
$250 000.00 from the account they
had opened. As he went into
the banking hall, the respondent went to an office where withdrawals
were authorised to ensure that
authorisation was given. He withdrew
the sum of $250 000.00, of which he was given $50 000.00 whilst
the balance was shared
equally between Dowa and the respondent.





At
about 4 am on 10 March 2000 Dowa woke Makadzange up, saying
the respondent wanted them to go to Masvingo. They drove
in the
respondent’s car and arrived in Masvingo at about 8 am. They
later met the respondent and proceeded to Zimbank.
He withdrew the
sum of $300 000.00 from the account after the respondent had
made sure that all was well and authorisation
of the withdrawal was
given. He said he received $20 000.00, whilst the balance was
taken by Dowa with the consent of the
respondent.





In
his affidavit Dowa said the respondent wrote the amount of
$614 921.68 on the blank cheque stolen from Power Sales. He
said the respondent had a photocopy of signature cards for Power
Sales which he said he took from Zimbank.





When
confronted with the allegation that he was involved in the fraud on
the Zimbank Branch in Masvingo, the respondent denied having
been in
Masvingo on 6 and 10 March 1999. On 1 October 1999 he sent a
memorandum to the head of corporate services division
of Zimbank,
attacking allegations made against him by the officer who had
investigated his case, Mr Goto (“Goto”). On
the allegation
that he was in Masvingo on the days the withdrawals from the
fraudulent account were made, i.e. 6 and 10 March 1999,
the
respondent said:






“The
absence of evidence that Thando Ndlovu was in Masvingo on the
days the withdrawals were made complicates Mr Goto’s
assertions in his report and proves that he is the designer of a
movie style ‘Link to Crime by Design’ for the sole purpose of
making his name a
household





In
his report dated 9 September 1999, which the respondent was
attacking, Goto, a senior investigating officer in Zimbank’s
Legal
and Investigations Department, had disclosed the fact that he was
relying on information contained in the affidavit deposed
to by
Makadzange. In his defence to the charge before the hearing officer
on 14 October 1999 the respondent said he did not
go to Masvingo
on the mentioned dates.





It
was after Goto produced copies of hotel bills and a written
confirmation from Zimbank’s Masvingo Branch manager that the
respondent
had booked in at the Flamboyant Hotel on 6 and 10
March 1999 and visited Zimbank’s Branch in Masvingo that the
respondent
admitted that he was in Masvingo on the relevant dates.
He now said he was on official business to investigate a fraud
allegedly
perpetrated against the Reformed Church of Zimbabwe which
had an account with the Masvingo Branch of Zimbank. Senior members
of
the Reformed Church denied that any fraud had been committed
against the Church. They said no-one had asked the respondent to
investigate
its business transactions with Zimbank. The Masvingo
Branch manager said the respondent had come to Masvingo uninvited.





On
this evidence the hearing officer and the committee found the
respondent guilty as charged; whilst the appeals board and the
Tribunal thought otherwise.





The
appeals board took the view that the evidence was “almost
completely circumstantial. The evidence against the respondent
was
not “very strong”. It said the committee and the hearing
officer should not have relied on affidavit evidence from people
of
“dubious character”. They should have insisted on hearing oral
evidence from the three witnesses so that the respondent
could
cross-examine them.






There was no analysis of the
evidence placed before the disciplinary bodies. The case against
the respondent was dismissed on evidence
which the employer did not
adduce. The employer was accused of having failed to prove the case
against the respondent beyond a
reasonable doubt.





The
Tribunal said:





“It
is, however, common cause that the two accomplices were men of
questionable integrity. Counsel for the appellant (now the
respondent) made the valid observation in his written submissions
that the two affidavits relied upon by the appellant were:





‘… sworn
by persons of dubious probity and in those circumstances there is
perhaps an argument that they ought not to be accepted at
face value
and without corroboration.’





The
only corroboration which the appellant’s representative could point
at was to the effect that when one fraud was perpetrated
in Masvingo
the respondent had been booked (in) at a hotel but when questioned he
denied having been in Masvingo at the material
time.





While
it may be true that the respondent may have lied about his
whereabouts at the time, the lie cannot be evidence of the fact
that
while he was in Masvingo he was facilitating the commission of the
fraud. …





The
two suspect witnesses were not called to testify against the
respondent. Their evidence remains raw and untested by
cross-examination.
No reliance can be placed on their affidavits
because being accomplices of dubious character they had every reason
to misrepresent
facts and to colour their evidence.





That
being the case, the appeals committee acted correctly in granting the
respondent the benefit of a reasonable doubt.”





The
first misdirection by the appeals board and the Tribunal is in the
view that the form in which evidence is presented, (whether
affidavit
or
viva voce)
and its character (circumstantial or direct) determines whether it is
of any probative value. The thinking was that because the
evidence
against the respondent was presented in affidavit form and
circumstantial in character, it could not be relied upon as proof
of
the respondent’s guilt.





Needless
to say, that thinking was wrong. It is the cogency of the evidence
that matters and not the form in which it is presented.
Evidence in
affidavit form is evidence on oath. It can be relied upon –
Smith
Chatara v ZESA

SC-83-01.





The
question was not whether or not the evidence should have been
presented
viva voce,
but whether or not in the form it was presented the evidence was
adductive of facts probative of the fact in issue, that is to say,
the involvement of the respondent in the commission of the fraud
against Zimbank.





The
evidence related to facts which established that the respondent was
involved in the commission of the fraud. The affidavits
disclosed
that he conceived the idea of the fraudulent plan and instructed
Makadzange to go to Masvingo and open the fictitious account.
He
was said to have obtained the stolen blank cheque which he endorsed
with the amount to be deposited into the account. The
fact that the
stolen cheque so endorsed was successfully deposited at the Fife
Street Branch of Zimbank in Bulawayo and went through
the clearance
system was common cause.





On
the two days when the withdrawals from the fictitious account were
made, the respondent was not just in Masvingo but at Zimbank’s
Branch there. In fact, this was not circumstantial but direct
evidence incriminating the respondent in the commission of the fraud.
Direct evidence of a fact is the assertion by a person who claims
to have perceived it with his own senses. The evidence was
that the
respondent was in Masvingo and at Zimbank’s Branch in furtherance
of a common purpose to fraudulently withdraw the sums
of money that
were in fact withdrawn from the fictitious account he had had opened.





The
facts of the respondent’s presence in Masvingo and at Zimbank’s
Branch on the two crucial days when the withdrawals from
the
fictitious account were made, as averred in the affidavit deposed to
by Makadzange, became common cause when the respondent admitted
them.
The admission of these facts came after the defence of complete
denial had been proffered, forcing the employer to produce
hotel
bills and a statement from Zimbank’s Masvingo Branch manager to
show that the respondent had booked himself into the Flamboyant
Hotel
and was at Zimbank’s Masvingo Branch on the two days when he was
alleged to have taken part in the fraudulent withdrawal
of the money
from the fictitious account.





The
only issue for determination was whether or not the respondent was in
Masvingo and at Zimbank’s Masvingo Branch in the course
of his
employment or in furtherance of a common purpose to defraud Zimbank.





Consideration
of that question brings us to the second misdirection by the
Tribunal. The learned chairman of the Tribunal held
that the denial
by the respondent that he was in Masvingo at the time he was alleged
to have been facilitating the fraudulent withdrawals
from the
fictitious account could not be evidence of the “fact that while he
was in Masvingo he was facilitating the commission
of the fraud”.
The learned chairman overlooked the fact that the denial constituted
the defence the respondent proffered to the
charge. He was not
denying the fact that he was in Masvingo only but the whole
allegation that he was there for the purpose of
committing the fraud
on Zimbank.





The
respondent was aware of the fact that the allegations against him
were being made on the basis of the affidavit deposed to by
Makadzange to the effect that the respondent was in Masvingo and at
Zimbank’s Branch on 6 and 10 March 1999 for the purpose of
committing the fraud. He was entitled to admit the fact that he was
in Masvingo and at Zimbank’s Branch on the dates mentioned
in the
affidavit but avoid the inference of the fact that he was there for
the purpose of committing the fraud. That defence was
open to him.
Instead, he adopted the defence of complete denial, placing the
onus
on the employer to prove the allegations.





The
proof produced by the employer was corroborative of the evidence of
the fact that the respondent was in Masvingo and at Zimbank’s
Branch with the intention of committing the fraud. Once he admitted
the fact that he was in Masvingo and at Zimbank’s Branch
his
defence of complete denial crumbled, raising the level of the
credibility of the affidavit evidence. He must have known that
the
fact of his having been in Masvingo and at Zimbank’s Branch on the
dates mentioned derived relevance from being probative of
the fact in
issue, that is to say, his involvement in the fraud.





That
brings us to the third misdirection committed by the Tribunal.
Instead of determining what had now become the issue, that
is to say,
the truthfulness of the respondent’s statement that he was in
Masvingo and at Zimbank’s Branch on official business
of
investigating the alleged fraud on the Reformed Church of Zimbabwe,
the learned chairman directed his energy at finding grounds
for
rejecting the affidavit evidence because it was given by “accomplices
of dubious character” with “every reason to misrepresent
facts
and to colour their evidence”. There was no analysis of the
evidence to decide whether it could safely be accepted as proof
of
the facts contained therein, notwithstanding the fact that it was
given by “accomplices of dubious character”.





It
is trite that evidence is not rejected simply because it is given by
an accomplice or a suspect witness. The correct approach
is to
examine the evidence and decide whether it is believable. If
necessary, corroborative evidence is then sought by the trier
of
facts to satisfy himself that the dangers of false incrimination
ordinarily associated with the evidence of an accomplice or suspect
witness are not present in the circumstances of the particular case.
It is not an application of this test to say that because
a person
is an “accomplice of dubious character” his evidence is therefore
not to be relied upon as proving the facts to which
it relates.





The
Tribunal should have found that the admission by the respondent of
facts which the accomplice had mentioned in the affidavit for
the
purpose of incriminating him in the commission of the fraud on
Zimbank corroborated the accomplice’s evidence. There was
therefore no need to say that the accomplice ought to have given oral
evidence and to have been cross-examined because the respondent
was
in effect incriminating himself. The question was whether he could
be believed when he said he was in Masvingo and at Zimbank’s
Branch, not for the furtherance of the common purpose of committing
the fraud, but to investigate the alleged fraud on the Reformed
Church of Zimbabwe.





The
officials of the Reformed Church denied that they had been victim of
a fraud which could have necessitated an investigation by
Zimbank.
They categorically denied that they had invited the respondent to
carry out any investigation into the financial affairs
of their
Church.





Zimbank’s
Masvingo Branch manager confirmed that the respondent came to the
Branch on 6 and 10 March 1999 uninvited. In other
words, he was not
on official business.





If
the respondent had been on official business, he would have compiled
a report for the benefit of his employer at the end of an
investigation he would have been directed to conduct. No such
report was prepared.





In
the report to the head of corporate services division of Zimbank, the
respondent was convinced that evidence that he was in Masvingo
on 6
and 10 March 1999 would not be known by Zimbank, making it impossible
to link him to the fraud. The respondent was a former
police
inspector and a crime investigation officer. In other words, he was
not an ordinary employee who would not have known what
evidence was
crucial to incriminate him in the fraud.





It
is clear from what the respondent said in the report to the head of
corporate services division on 1 October 1999 that he
hoped that
the evidence of his having been in Masvingo on the dates mentioned in
the affidavit of Makadzange would remain hidden
to the employer.
That is why he proffered a defence of complete denial. He denied
before the hearing officer on 14 October
1999 that he was in
Masvingo on the dates mentioned. There would have been no reason at
all for keeping information on his visit
to Masvingo a secret if he
had been there on the official business of his employer.





All
the facts, that is to say, the hope that the evidence of the
respondent’s visit to Masvingo would remain unknown to his
employer,
the denial by the Reformed Church officials that there was
an alleged fraud perpetrated on the Church to be investigated, and
that
he was at Zimbank’s Masvingo Branch on the dates in question
uninvited, showed that his statement that he was in Masvingo and at
Zimbank’s Branch on official business was false. The intentional
concealment of information about his movements in the ordinary
course
of his employment would in any case have been an act of dishonesty
inconsistent with the fulfilment of his contract of employment.
The
absence of official business to explain the purpose of the
respondent’s visit to Masvingo and Zimbank’s Branch and his
mendacity raised the credibility of the evidence of the accomplice.





The
last, but not the least, misdirection by the Tribunal was in the
determination of the standard of proof the evidence adduced by
Zimbank was required to meet. Reference to the evidence having to
be “very strong” and giving the “benefit of a reasonable
doubt”
to the respondent show that the standard of proof applied to the
evidence was one of reasonable doubt as opposed to a balance
of
probabilities. See
ZESA
v Dera
1998 (1) ZLR
500 (S) at 503E.





The
appraisal of all the evidence adduced leads to the conclusion that
the respondent’s involvement in the commission of the fraud
on his
employer was established on a balance of probabilities.





The
appeal therefore succeeds with costs. The decision of the Labour
Relations Tribunal is set aside and in its place substituted
the
following –





“It
is accordingly ordered that –






(1) That the appeal against the
decision of the Appeals Board succeeds with costs.







(2) That the determination by the
Appeals Board be and is hereby set aside and substituted with the
order that the appeal against
the decision of the Grievance and
Disciplinary Committee be and is hereby dismissed with costs.”











CHIDYAUSIKU
CJ: I agree.











CHEDA
JA: I agree.











Gill,
Godlonton & Gerrans
,
appellant's legal practitioners


Gutu
& Associates
,
respondent's legal practitioners