Court name
Supreme Court of Zimbabwe
Case number
SC 72 of 2004
Civil Appeal 223 of 2002

Stuttafords Removals (Pvt) Ltd. v Chibanda (23/02) (SC 72 of 2004, Civil Appeal 223 of 2002) [2004] ZWSC 72 (26 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 72













DISTRIBUTABLE
(58)


Judgment
No. SC 72/04


Civil
Appeal No. 223/02








STUTTAFORDS
REMOVALS (PRIVATE) LIMITED





v
DARLINGTON       CHIBANDA








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, MALABA JA & GWAUNZA JA


HARARE,
MAY 20 & SEPTEMBER 27, 2004








Ms
B Mtetwa
, for the
appellant





The
respondent in person





GWAUNZA
JA: This is an appeal against a judgment of the then Labour
Relations Tribunal (“the Tribunal”), in terms of which
the
appellant was ordered to either reinstate the respondent to his
former employment without loss of benefits or pay him damages.






It is common cause that the
respondent was employed by the appellant as a stacker. On 16 April
1997 he, together with others,
was assigned to load certain household
goods belonging to a customer onto a trailer for delivery the next
morning. It was a standing
policy of the appellant that loaded
trailers should be locked for security purposes. Since the trailer
in question had no keys
attached to it, the respondent used a piece
of wire to secure its doors and left for home. The following
morning it was discovered
that the piece of wire had been loosened
and a 24” television set, which had been one of the items loaded
onto the trailer, removed.






As a result, charges of gross
negligence in not locking the trailer, resulting in a “substantial
loss” to the company, and wilful
disobedience of a lawful order to
lock the trailer were brought against the respondent. As these were
considered dismissable offences,
the respondent was dismissed from
his employment after being found guilty thereof. His appeal against
the dismissal to the appellant’s
managing director was
unsuccessful. He thereafter successfully appealed to the Tribunal,
a circumstance that led to the appellant
appealing against the
Tribunal’s decision.






In
its grounds of appeal the appellant alleges misdirection on the part
of the Tribunal, in particular that –






(i) it erred on the standard of
proof it used in the assessment of the evidence and facts;







(ii) its findings on the facts
were so grossly unreasonable and such a serious misdirection as to
amount to a misdirection in law;
and







(iii) it failed to properly take
into account the fact that the respondent owed the appellant and its
customers a high duty of care
in ensuring the safety of goods
entrusted to the appellant’s care.






As the appellant’s grounds of
appeal clearly raise points of law, I am satisfied that the appeal is
properly before this Court.






It was argued on behalf of the
appellant that, contrary to the Tribunal’s findings, the absence of
keys with which to secure the
trailer in question was never in
dispute. Rather, what was at issue was whether the respondent had
taken the necessary steps to
obtain the keys from the relevant
officials. It was the appellant’s case that the respondent, upon
realising that he did not
have the keys to lock the trailer, failed
to inform the operations manager, a certain Mr Ngarande. This
was especially so
since, on the evidence placed before the court
a quo
and as confirmed by the respondent himself, Mr Ngarande was
present on the appellant’s premises during the loading of the
trailer.






It was not in dispute that keys
to the trailers were not kept on them because they invariably
disappeared. Nor was it in dispute
that, as a matter of practice,
employees responsible for different trailers bought keys to them, at
their own expense, and claimed
refunds from the employer. (The
respondent himself testified that he had in fact personally bought
such keys in the past). They
would then keep the keys whenever the
trailer was not in use. In addition to this practice, it was
accepted that keys could be
provided, upon request, by the operations
manager.






It is clear from the evidence
before the court
a quo
that the provision by the appellant of keys for its trailers was not
effected through the simple act of attaching such keys to the
trailers and leaving them there. Rather, it was incumbent upon the
persons responsible for the different trailers to either buy
the keys
at their own expense or request for them from management. “Locking”
the trailers, therefore, in the understanding
of both stackers and
management, included the acquisition of such keys from management
through the standard channels.






Against this background, the
absence of keys from the trailer in question cannot be said to have
been an unusual circumstance.
Hence the charge by the appellant
that, having realised that the trailer had no keys, the respondent
was negligent in not taking
all steps necessary to secure keys with
which to lock the trailer.






The
consequence of the respondent’s actions, or rather omissions, was
that, contrary to standing company policy, the trailer was
left
unlocked. As a result, some person unknown had, with apparent ease,
loosened the piece of wire used in an attempt to secure
the trailer,
removed and made off with the television set.






In my view, the evidence before
the Court makes it clear that providing keys to trailers by the
appellant, and the locking of such
trailers by those responsible,
went beyond what the literal meaning of those terms would suggest.
The appellant charges in this
respect that the Tribunal had erred in
accepting, in the literal sense, that the respondent could not lock
the trailer because the
appellant had not provided the keys.
Further, that because the operations manager could not be located,
the respondent had done
all he could do in informing his supervisor
of the absence of the keys, and leaving after using a piece of wire
to secure the trailer.





There
is, in my view, merit in the appellant’s contention. Firstly, the
Tribunal clearly misinterpreted the facts before it
pointing to the
real meaning of “providing keys” and the “locking of trailers”.






Secondly, the court a quo
seems not to have appreciated the fact, established by the evidence,
that, while the supervisor the respondent informed about the
absence
of the keys did not have it in his power to provide such keys, the
operations manager, Mr Ngarande, was in a position
to do so.
Indeed, such supervisor, a Mr Ngarira, the respondent and one of
the respondent’s witnesses, Mr Padera, all
testified that
Messrs Ngarira and Padera had looked for Mr Ngarande to no
avail, although all acknowledged he was on the premises.






The respondent personally did not
search for Mr Ngarande. Therefore, the respondent’s report
to the supervisor, inasmuch
as he knew it would not yield the keys
required, was not the best course of action to take. It was
incumbent upon the respondent,
since he was aware that Mr Ngarande
was somewhere on the premises, to search for him until he found him.
Contact with Mr Ngarande
was crucial in the fulfilment of the
respondent’s mandate to lock the loaded trailer. The respondent
instead proceeded to use
a very crude and ineffective method to
secure the trailer, which was full of a customer’s valuable
property, and left for the night.






As correctly contended for the
appellant, the court
a quo
disregarded the argument that the appellant consistently advanced,
that the respondent, by virtue of his position as a workers’
committee member, should have appreciated, more than any other
worker, the importance of ensuring that a loaded trailer was properly
locked. The evidence before the Tribunal was that, as a member of
the workers’ committee, the respondent had been party to the
formulation of the standing policy that at no time was a loaded
trailer to be left unlocked. He therefore owed the appellant and
its customers a high duty of care. Indeed it can be said that the
respondent’s purchase of keys with which to secure trailers
assigned to him was driven by his appreciation of such duty of care.





Viewed
against the company’s standing instructions to lock all loaded
trailers, the high duty of care that he had towards the
appellant and
its customers, and the fact that he made no direct contact with
Mr Ngarande to request the necessary keys, there
can, in my
view, be no doubt that the respondent’s actions fell short of the
steps he could have reasonably taken to secure the
trailer in
question. Such actions also amounted to a disobedience of a lawful
order, as well as constituting gross negligence.
That being the
case, the misdirection alleged against the Tribunal by the appellant,
in relation to its findings on the facts placed
before it as well as
its failure to properly take into account the high duty of care that
the respondent bore in respect of the appellant,
becomes evident.





In
the light of this finding, I do not consider it necessary to consider
the merits of the appellant’s argument concerning the
standard of
proof used by the Tribunal in its assessment of the evidence and
facts before it.





The
appeal must accordingly succeed. It is in the result ordered as
follows –






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






2. The order of the Labour
Relations Tribunal is set aside and substituted with the following –







“The appeal be and is hereby
dismissed.”














CHIDYAUSIKU
CJ: I agree.














MALABA
JA: I agree.















Kantor & Immerman,
appellant's legal practitioners