Court name
Supreme Court of Zimbabwe
Case number
SC 83 of 2004
Civil Appeal 137 of 2003

Fawcett Security Operations (Pvt) Ltd. v Tsikayi (37/03) (SC 83 of 2004, Civil Appeal 137 of 2003) [2004] ZWSC 83 (04 October 2004);

Law report citations
Media neutral citation
[2004] ZWSC 83







DISTRIBUTABLE (68)











Judgment No
SC 83/04


Civil Appeal No 137/03

















FAWCETT
SECURITY OPERATIONS (PRIVATE) LIMITED v JOHN
TSIKAYI











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
ZIYAMBI JA & MALABA JA


HARARE SEPTEMBER 21 &
OCTOBER 5, 2004








A.M. Gijima, for
the appellant





The respondent in
person












CHIDYAUSIKU CJ: This is an appeal against the decision of the
Labour Relations Tribunal. The facts forming the background
of this
appeal are largely common cause.






The appellant is a security company and the respondent was employed
by it as a security guard. On 16 March 2000 the respondent
was
guarding an automated teller machine (ATM) belonging to a client,
Beverley Building Society. He was charged with unauthorized
absence
from the post and dismissed with effect from 14 April 2000.
Previously, on 18 October 1999 he had deserted his post and
was given
a final warning in terms of the employment code which was to expire
on 18 October 2000.





A Mr John Kandere
(Kandere) presided over the disciplinary hearing. According to the
record of the proceedings the respondent pleaded
guilty and was found
guilty. The record of the proceedings also bears the signature of
the respondent presumably to signify that
he accepted it as an
accurate record of the proceedings. Following this the respondent
was dismissed from employment. He then
appealed against the
dismissal to the Local Joint Committee of the National Employment
Council for the Commercial Sectors (“NECCS”).
The appeal was
successful. The Committee of the NECCS allowed the appeal on the
basis that the respondent had not been given
enough time to prepare
for his defence. This was despite the fact that the main ground of
the appeal to that Committee was that
he was being framed by one of
his superiors because he had refused to give him cannabis or
marijuana. This is the first time
that the respondent raised the
defence of trumped up charges. The appellant was ordered to
reinstate the respondent. The appellant
was aggrieved by this and
appealed to the NECCS itself. NECCS reversed the decision of the
joint committee and confirmed the dismissal
of the respondent. The
respondent then appealed to the then Labour Relations Tribunal (the
LRT) now the Labour Court. The LRT
allowed the appeal and ordered
reinstatement of the respondent. The appellant now appeals against
the decision of the LRT to reinstate
the respondent.





The Notice of Appeal
sets out four grounds of appeal, namely:-







  1. The LRT erred in not accepting the unquestionable admission of guilt
    by the appellant on the record of the proceedings and in the
    appellant’s own statement.



  2. The LRT erred in concluding that the appellant was not given
    sufficient time to prepare his defence.



  3. The LRT erred in concluding the unproved defence about cannabis
    which was never raised by the appellant until the Tribunal hearing.



  4. The LRT erred in concluding that the appellant was not given a
    chance to question the witness if he so wished.








In my view this appeal turns on the first ground. That is whether
or not the appellant freely admitted his guilt at the initial
hearing
before Kandere. The respondent maintains that he never made such an
admission and the signatures ascribed to him are forgeries.





I have no doubt in my
mind that the respondent initially admitted being absent from duty
but changed this stance once he realized
that the consequences of his
admission of guilt was dismissal from employment. He probably
expected, at the time of the admission
of guilt, that he would simply
be warned as had happened previously when he was charged and found
guilty of a similar offence.
I hold that view for the following
reasons.





At the disciplinary
hearing before Kandere the charge was put to the respondent and he
pleaded guilty, see p. 26 of the record.
After the alleged signing
the proceedings continued on a question and answer basis, that is,
with Kandere putting questions to the
respondent and the respondent
answering. The following is an excerpt of the record reflecting the
question and answer between the
presiding officer and the
respondent:-






“Q3. What happened when you were on duty on the day in question?







  1. I
    was found by the area N.C.O. on the other side of the road.








Q4. Do you know that it’s an offence to leave your post unattended?







  1. Yes
    Sir.








Q5. What does your duty note book say concerning general
responsibilities of a guard?






  1. Never
    leave your post until you are properly relieved.”











Again the respondent’s signature, which he denies, is found at the
conclusion of the question and answer session, see p. 28 of
the
record. Then there is a third document, p 25 of the record upon
which it is recorded that the respondent refused to sign the
document
which advised him of his suspension from employment. The three
documents, two bearing the alleged signature of the respondent,
and
the one on which it is recorded that he refused to sign bear the same
date. The inference is that they were made at the same
time. If
the two signatures were forged why forge signatures on the two and
record “refused to sign” on the one. It is common
cause that
proceedings before Kandere did take place. There was no reason
advanced as to why Kandere would forge the respondent’s
signature.
Indeed if he was so inclined then he would have forged the signature
on all the three documents and not on two only
and endorse “refused
to sign” on one. The probabilities are that the respondent
admitted his guilt but when he realized the
consequences of his
admission he changed his stance and refused to sign the third
document.





As I said the
respondent denies that the signatures on the documents showing
admission of guilt are his. There are two other signatures
at pp 23
and 30 which the respondent admits as his. These two signatures are
different from each other. This clearly shows that
the respondent
is a man of varied signatures. He does not have one consistent
signature which can be taken as his signature.





The learned member of
the Labour Relations Tribunal did not direct her mind to the issue of
whether or not the respondent had admitted
his guilt. She decided
the matter on the basis that the respondent had not been granted
adequate time to prepare his defence when
he appeared at the
disciplinary enquiry. With the greatest respect this is a serious
misdirection. If the respondent had been
framed as he now alleges
one does not need time to raise such a defence. One would raise
such a defence instantly and not on appeal
for the first time as
happened in this case. In any event the respondent himself never
asked for time to prepare his defence.
It would appear this defence
was raised by the Committee and by the learned member mero motu.
The respondent’s ground of appeal all along was that the charges
against him were fabricated. That defence in my view is fictitious.
It was not raised at the initial hearing. In her judgment the
learned member of the Labour Relations Tribunal does not indicate
whether she accepted this defence or not. Had she done so and given
reasons for doing so it might have been possible to follow
her
reasoning and conclusion. I certainly have no hesitation in
dismissing that defence as most improbable.





In the result I am
satisfied that the appeal, with costs ought to be, and is hereby,
allowed. The order of the Labour Relations
Tribunal is set aside
and the following order is substituted:-






“The dismissal of John Tsikayi is confirmed.”











ZIYAMBI JA: I agree









MALABA JA: I agree










Gill, Godlonton & Gerrans, appellant's legal practitioners