Court name
Supreme Court of Zimbabwe
Case number
SC 114 of 2004
Civil Appeal 107 of 2004

Sapes Trust (Pvt) Ltd. v Mangena (07/04) (SC 114 of 2004, Civil Appeal 107 of 2004) [2005] ZWSC 114 (12 January 2005);

Law report citations
Media neutral citation
[2005] ZWSC 114


DISTRIBUTABLE (86)



Judgment No. SC 114/04


Civil
Appeal No. 107/04









SAPES
TRUST (PRIVATE) LIMITED v DORCAS MANGENA








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA JA


HARARE,
OCTOBER 26, 2004 & JANUARY 13, 2005





S
Njerere
, for the appellant





No
appearance for the respondent







SANDURA JA: This is an appeal against a judgment of the Labour
Court which dismissed with costs the appellant’s appeal to
that
court against the decision of the senior labour relations officer who
had ordered the appellant to reinstate the respondent
without loss of
salary and benefits, or pay her damages in lieu of reinstatement.





The
factual background is as follows. The respondent (“Mangena”)
was employed by the appellant (“the Trust”) as a secretary
with
effect from 12 May 1998. A year later, on 12 May 1999,
she was suspended without pay and other benefits in terms
of
s 3(1)(a) of the Labour Relations (General Conditions of
Employment) (Termination of Employment) Regulations, 1985, published
in Statutory Instrument 371 of 1985 (“the Regulations”), pending
the authorization of her dismissal by a labour relations officer.





The
letter of suspension, which was written by one of the directors of
the Trust, in relevant part, reads as follows:







“… I hereby suspend you … without pay and benefits, in terms of
the above Statutory Instrument, 371/85. The charge against
you is
your conduct, which is inconsistent with the fulfilment of the
express and implied terms of your contract (section 3(1)(a)
of
Statutory Instrument 371/85). More fully –





On the
afternoon of Friday April 16, 1999 you received $15 200 meant
for Daily Subsistence Allowances for conference delegates.
You
should have either handed over the money to the Administrator,
Miss Chiriga, or made arrangements with the finance office
to
keep the money in the safe. Instead you took the money home for
four days over the long weekend until Tuesday, April 20.





Mrs Zambuko,
the officer responsible for disbursing the funds, then asked you to
hand over the $15 200 so that she could
start giving
participants their allowances. You both counted the money and there
was only $8 000, instead of $15 200.
Mrs Zambuko
declined to accept the money until you had the full amount, which you
promised to do that same day. Of the missing
$7 200 you stated
that you loaned $3 000 of the organisation’s money to
Vista Mbewe, Mrs Kazembe’s secretary.
I need not stress
the fact that this was unauthorized and gross misuse of the
organisation’s funds.





You then
reported that on Wednesday morning, April 21, you were carrying
the money in your handbag when a thief snatched your
bag. You had
all the opportunity to hand the money over to a senior officer the
previous day, yet you continued to neglect your
responsibility to
ensure the safety of the money. Clearly you had been unable to make
up the loss of the missing $7 200, which
was the precondition
for Mrs Zambuko to take over responsibility for the money.





The
organization had to take emergency measures to get more funds for
participants, and this caused a delay that embarrassed participants
and put our organization into disrepute.





In
addition, $3 000 was entrusted to you for the purchase of
cell-phone charge cards. Instead of purchasing the cards urgently
as requested, you deposited the money into your personal account.
No employee is permitted under any circumstances to deposit the
organisation’s funds into a personal account …”.






The
Trust forthwith applied to a labour relations officer for the
authority to dismiss Mangena. That application was subsequently
heard in July 1999 and was dismissed on 16 August 1999. The
labour relations officer ordered the Trust to reinstate Mangena
without loss of salary and other benefits, or pay her damages in lieu
of reinstatement.





Thereafter,
acting upon a request by the Trust, the labour relations officer
referred the matter to a senior labour relations officer
who
subsequently confirmed the determination made by the labour relations
officer.





The
Trust then appealed to the Labour Relations Tribunal (now the Labour
Court). That appeal was heard by the Labour Court on
12 May
2003 and on 1 September 2003 it was dismissed with costs.
Aggrieved by that decision, the Trust appealed to this
Court.





The
issue for consideration in this appeal is whether the Labour Court
correctly concluded that Mangena had not committed any act
of
misconduct in terms of s 3(1)(a) of the Regulations, i.e. any
act, conduct or omission inconsistent with the fulfilment of
the
express or implied conditions of her contract of employment.





Mangena
was charged with three acts of misconduct. Firstly, it was alleged
that on Friday, 16 April 1999 she received from
the Trust the
sum of $15 200 and took it home, instead of handing it over to
the Administrator, a Miss Chiriga (“Chiriga”),
or making
arrangements with the finance office to keep the money in the safe.
The money was meant to cover the daily subsistence
allowances payable
to the delegates who were attending a conference.





Secondly,
it was alleged that Mangena had advanced a loan of $3 000 to a
Ms Vista Mbewe (“Mbewe”), using the money
she had received
from the Trust, without the authority of the Trust.





And
thirdly, it was alleged that Mangena had received the sum of $3 000
from the Trust for the purpose of purchasing cellphone
cards, and
that instead of using the money for that purpose she deposited it in
her bank account.





After
hearing the parties and their witnesses, the labour relations officer
found that the Trust had failed to prove its allegations
in respect
of the second and third counts.





However,
in respect of the first count the labour relations officer found
that, although the allegations had been admitted by Mangena,
there
was nothing wrong with her conduct because on a previous occasion she
had kept a large sum of money belonging to the Trust
at her home for
three or four days and no objection had been raised against that
conduct.





That
reasoning was accepted by the Labour Court. In my view, the Labour
Court seriously misdirected itself. I say so because
it completely
overlooked vital evidence given before the labour relations officer
by Mrs Maruza (“Maruza”), the secretary
in the finance
department, who handed the sum of $15 200 to Mangena on the day
in question. Her evidence was that when she
gave the money to
Mangena she asked her to take it to Chiriga. Mangena, therefore,
knew that the money was to be handed over to
Chiriga.





Instead
of taking the money to Chiriga, Mangena took it home. On the
following day, Saturday 17 April 1999, she reported
for duty and
saw Chiriga but did not give her the money.





As
Monday was a holiday, she next reported for duty on Tuesday, 20 April
1999, but did not hand over the money to Chiriga.
However, when on
that day Mrs Zambuko (“Zambuko”), the officer responsible
for disbursing the allowances to the delegates,
asked Mangena to hand
over to her the money, Mangena did not have the full amount. She
had $8 000 only, and gave no satisfactory
explanation for the
shortfall of $7 200.





Consequently,
Zambuko indicated that she could only accept the full sum of $15 200,
and did not, therefore, take the $8 000.
Although Mangena
undertook to raise the shortfall on that day and then hand over the
full amount to Zambuko, she did not do so.





On the
following day, Wednesday 21 April 1999, when Mangena reported
for duty, she alleged that on her way to work on that
day a thief had
snatched her handbag and stolen all the money.





In my
view, there can be no doubt that by overlooking Maruza’s evidence
the Labour Court committed a serious misdirection on the
facts which
amounts to a misdirection in law. Accordingly, this Court has the
jurisdiction to hear this appeal.





As
EBRAHIM  JA said in National Foods Ltd v Stewart Magadza
SC-105-95 (not reported), at p 4 of the cyclostyled judgment:







“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, that 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.”






I entirely
agree with those comments.





In the
present case, Mangena knew that she was required to hand over the
money to Chiriga but did not do so on 16, 17, 20 and 21
April 1999.
She gave no satisfactory explanation for her failure to do what she
was required to do by the Trust. The fact that
on a previous
occasion she had taken some money belonging to the Trust to her home
and kept it there for three or four days is irrelevant
because the
full facts of what happened on that occasion are not part of the
record before this Court.





In my
view, there can be no doubt that Mangena’s conduct in taking the
money home and keeping it there for four or five days,
instead of
handing it over to Chiriga at the first available opportunity, is
conduct inconsistent with the fulfilment of the express
or implied
conditions of her contract of employment.





The
Labour Court should, therefore, have allowed the appeal by the Trust
and set aside the determinations made by the labour relations
officer
and the senior labour relations officer.





Finally,
as far as costs are concerned, I cannot see any reason why they
should not be awarded to the Trust.





In the
circumstances, the following order is made –







1. The appeal is allowed with costs.







2. The order of the court a quo is set aside and the
following is substituted -





“The determinations made by the labour relations officer and the
senior labour relations officer are set aside with costs, and
Sapes Trust (Private) Limited is authorized to dismiss
Dorcas Mangena with effect from 12 May 1999”.






ZIYAMBI
JA: I agree.





GWAUNZA
JA: I agree.





Honey &
Blanckenberg
, appellant's legal practitioners


Manase
& Manase
, respondent's legal practitioners