Court name
Supreme Court of Zimbabwe
Case number
SC 82 of 2004
Civil Appeal 183 of 2003

Hubert Davies & Company (Pvt) Ltd. v Mudzamiri (83/03) (SC 82 of 2004, Civil Appeal 183 of 2003) [2004] ZWSC 82 (29 September 2004);

Law report citations
Media neutral citation
[2004] ZWSC 82













DISTRIBUTABLE
(63)


Judgment
No. SC 82/04


Civil
Appeal No. 183/03








HUBERT
DAVIES & COMPANY (PRIVATE) LIMITED





v
OSCAR MUDZAMIRI








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & GWAUNZA JA


HARARE,
JULY 15 & SEPTEMBER 30, 2004








T
Biti
, for the
appellant





No
appearance for the respondent






GWAUNZA JA: The respondent
did not appear to argue his case, despite having filed heads of
argument. After satisfying ourselves
that he had been duly served
with a notice of hearing, we proceeded to hear argument from the
appellant’s counsel, Mr 
Biti.





The
appellant charged the respondent with, and found him guilty of,
violating para 6:7 of its Code of Conduct, which reads
as
follows:






“Dishonesty and other
Related Offences





Knowingly
acting to the detriment of the company in respect of purchases or
sales for either personal or other’s gain.”





As
the offence carried the penalty of dismissal, the respondent was duly
dismissed from the appellant’s employ. The respondent’s
appeals, first to the appellant’s disciplinary committee and then
to its chief executive officer, were unsuccessful. He thereafter
appealed to the then Labour Relations Tribunal (“the Tribunal”),
which upheld the appeal and ordered the appellant to either
reinstate
the respondent without loss of benefits, or pay him damages.





The
appellant now appeals against this decision.






The
background to the dispute is as follows.






The appellant, whose business
includes trading in ERF vehicles and related spare parts,
commissioned some undercover investigations
into the suspected theft
of such spare parts from its workshops. Acting on information from
the investigator’s report, the appellant
involved the C.I.D. in
further investigations, pointing to the respondent as the suspect.
The C.I.D.’s involvement culminated
in the arrest of the respondent
on suspicion of theft. This followed a search of the respondent’s
vehicle by a C.I.D. official,
who had approached the respondent and
demanded to search the car. The search yielded, from the boot of
the respondent’s vehicle,
a number of spare parts later identified
by the appellant’s representative as ERF parts. It has not been
disputed by the respondent
that the appellant is the exclusive
franchise holder of ERF in Zimbabwe.






The respondent recorded a warned
and cautioned statement, in which he stated, in part:





“I
have understood the caution and nature of the inquiry and I do not
admit to (the) charge because I was holding the bearings on behalf
of
Muwani who wanted to sell them to one by the name Mutasa.”






The respondent also explained
that he had had the spare parts for the last four days pending their
delivery to Muwani either at his
workplace or at his home. The said
Muwani later produced receipts suggesting that he had bought the
spare parts in question.
As this left the police with no proof that
the respondent had stolen the parts from the appellant’s workshop,
the charges against
him were dropped.






The appellant accepted the
weakness in the case of theft against the respondent, but was of the
view that there was sufficient evidence
to prove that the respondent
had violated para 6:7 of its Code of Conduct, hence the
preferring of charges, in terms of that
paragraph, against the
respondent.






The
report on the disciplinary committee hearing held on 21 May
1999, in my view, gives a good summary of the appellant’s case
against the respondent. Paragraph E of that report reads as
follows:





“The
Committee then discussed all the matters presented and the following
is a summary of the relevant issues –






(1) Mr Mudzamiri was in
possession of parts used by E.R.F. trucks.





(2) Mr Mudzamiri
knew these spares were for sale and the person to whom they were to
be sold.





(3) Mr Mudzamiri
denied the above to the Committee.





(4) Mr Mudzamiri
acknowledged that he would receive payment for his assistance in
handling the spare parts.






(5) Mr Mudzamiri would not
explain his full involvement regarding possession of the parts for
such a long period and there (
sic)
eventual destination.





The
above facts led the Committee to confirm that Mr Mudzamiri was
knowingly assisting in the sale of E.R.F. parts for personal
gain to
the detriment of the Company for which he works.”






It is argued on behalf of the
appellant that the court
a quo
misinterpreted para 6:7 of the appellant’s Code of Conduct,
which the respondent was alleged to have violated, and therefore
reached the wrong conclusion.






In my view, this contention not
only has merit, it also raises a point of law. In terms of s 92(c)
of the Labour Relations
Act [
Chapter 28:01],
an appeal to this Court from the Labour Relations Tribunal must be on
a point of law. The appeal is therefore properly before
this Court.






It is evident from its judgment
that the Tribunal’s interpretation of para 6:7 of the
appellant’s Code of Conduct was that
the offence was not proved
unless the accused, in this case the respondent, was found to have
purchased or sold the parts in question,
or attempted to do so. The
observations of the court
a quo
on p 4 of its judgment are illustrative of this point:






“Thirdly,
the offence here is that of either purchasing ‘or selling’,
neither of which the appellant (the respondent
in
casu
) did.





Fourthly,
the respondent concluded that because the appellant possessed the
said spare parts, he intended to sell them.”





And
later on the same page:





“Further,
to infer intention to sell the parts on the part of the appellant
simply because he possessed them is farfetched under the
circumstances where another person claims ownership of the same
property.”






Contrary to the Tribunal’s
observations, the report of the disciplinary committee hearing,
referred to earlier in this judgment,
makes it clear that the
attitude of the appellant was that the respondent had knowingly
assisted
in the sale of ERF parts for personal gain, to the detriment of the
company he worked for.






Mr Biti,
who appeared for the appellant, in my view correctly submitted that
the essential requirement of the charge preferred against the
respondent was one of conflict of interest, that is, knowingly
engaging in competition with the employer, directly or indirectly.

For the court a quo
to suggest that the offence was concerned with the sale of the parts
in question is clearly to misinterpret not only the provision
in
question, but also the facts presented as proof of the commission of
the offence.






The evidence before the court
a quo
shows that the appellant fully appreciated what the essential
elements of the offence were. The respondent worked for a company
dealing in ERF spare parts; he was found with a number of such spare
parts in his vehicle; and even though there was no evidence
that he
himself intended to sell the parts, he was fully aware that the
alleged owner of the parts, Mr Muwani, intended to sell
them to
a Mr Mutasa. Further, for his role as a “middleman” for
Mr Muwani, the respondent was to receive a monetary
consideration. Clearly, he was engaging in activities similar to,
and effectively competing with, those of the company he worked
for.
Such activities “involved purchases and sales” for both his
personal gain and that of Mr Muwani. The offence under
para 6:7 does not require, only, that the accused be directly
engaged in the sale or purchase of the parts in question. It
is
sufficient that by his conduct he facilitated such activities.







I am satisfied, in the light of
the foregoing, that the respondent was properly charged with and
convicted of the offence in question.
His dismissal in the face of
such conviction cannot be faulted.






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






1. The appeal be and is allowed
with costs.







2. The order of the Labour
Relations Tribunal (now the Labour Court) is set aside and
substituted with –


“The
appeal be and is dismissed with costs”.















CHIDYAUSIKU  CJ:
I agree.















ZIYAMBI  JA:
I agree.















Honey & Blanckenberg,
appellant's legal practitioners