Court name
Supreme Court of Zimbabwe
Case number
SC 27 of 2005
Civil Appeal 76 of 2004

Marine Centre (Pvt) Ltd. v Chakwizira (76/04) (SC 27 of 2005, Civil Appeal 76 of 2004) [2005] ZWSC 27 (17 July 2005);

Law report citations
Media neutral citation
[2005] ZWSC 27



4


SC
27/05


















DISTRIBUTABLE
(21)


Judgment
No. SC.27/05


Civil
Appeal No. 76/04








MARINE
CENTRE (PRIVATE) LIMITED





v
0’BRIAN CHAKWIZIRA








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, CHEDA JA & GWAUNZA JA


HARARE,
MAY 17 & JULY 18, 2005





N
Madya
, for the appellant





The
respondent in person






CHEDA JA: The appellant was
the employer of O’Brian, the respondent, and his workmate,
Brian Dhende, (“the two workmates”).
Their duties involved
making seat covers and using glue. On 11 October 2000 the two
workmates remained at their workplace,
doing overtime. It seems
that the overtime was authorised. At about 1800 hours a
security guard came on duty and spoke to
them briefly, then continued
with his patrol of the premises. The two told him they would finish
work at 2030 hours. Later
that evening the respondent returned
to the guard hut.





The
security guard’s report of what happened that evening reads as
follows:






“4. I then proceeded in
patrolling around the premises. In the workshop there were two
workers, namely Brian and O’Brian. I approached
them in the
workshop where they were sewing some seat covers. I asked them what
time they were going to finish their overtime.







5. O’Brian responded saying
they were knocking off at 2030 hours. I then left them in the
workshop and continued with my
patrols.







6. At 2030 hours I
discovered that the two employees were still working. I did not ask
them why they were still working…







7. I thought they were going to
clock their cards when they were through with their overtime.







8. At approximately 2137 hours
I was patrolling at the Boat Section. O’Brian approached me
saying that they were about to
finish. O’Brian went to the guard
hut.







9. I then followed him behind the
guard hut. I instructed him that he was supposed to be searched,
which I did and he proceeded
to the changing room.







10. On return from the changing
room he brought an empty 5-litre container. I did not ask him about
the container and he proceeded
into the workshop where they were
working.







11. I saw Brian coming from the
East-Southern corner. At that moment O’Brian switched off the
lights at the section where they
were working.







12. Brian came straight to the
guard hut and was carrying a small bag with some stripes colours blue
and white (
sic).
The bag was empty as I searched him.







13. He went into the changing
room, and on his return he had nothing except the empty bag. He
went straight into the workshop.







14. O’Brian and Brian closed
and locked all doors and proceeded to the Main Gate. I searched
them and opened the gate for them.







15. They went along Bessemer
Road, turned right into Edison Crescent. I then suspected
these two. I went straight to the
direction where Brian had come
from. I discovered the 5-litre container brought by O’Brian from
the changing room was in the
drain, some rubbers and seat covers.







16. I took these items and
discovered that the container was filled with glue, one roller seat
cover and two windscreen rubbers.







17. I was observing whilst inside
the premises at the point of (the) scene. I heard a voice saying
‘The items are missing’ and
the people continued walking along
Kelvin Road South.







18. I then took the items to the
guard hut for safekeeping. Later my area Corporal visited me and I
gave him the report and he later
advised our Control Room about the
incident. …”









In
his evidence to the labour relations officer the security guard said
he heard the two saying the items are missing. This evidence
was
not challenged in cross examination.









Faced
with this report, the appellant had the two workmates arrested.







Although the magistrate's court
acquitted them, the appellant charged them with misconduct and found
them guilty. They were suspended
from employment and permission was
sought from a labour relations officer to dismiss them. The labour
relations officer granted
permission for their dismissal. The two
workmates then appealed to a senior labour relations officer, who
dismissed their appeal.







The respondent appealed to the
Labour Relations Tribunal (“the Tribunal”). The Tribunal upheld
his appeal and ordered that
he be reinstated. The appellant has now
appealed to this Court against the decision of the Tribunal.







In upholding the appeal, the
Tribunal said in its judgment that the security guard was rather rash
in removing the property from
the drain before the suspects got to
the property. It also said that the security guard did not identify
the voice of the speaker
who said: “The items are missing”, and
could not say that the voice he heard belonged to the respondent.
It said anyone could
have been walking along the road at the material
time, and so the respondent was not properly identified as the person
who had deposited
the property in the drain.







However, it must have been
obvious that the persons had some connection with the things they
said were missing from the drain.
The security guard had earlier
seen O’Brian carrying the empty five-litre container. This
container was later found in the drain
after O’Brian had previously
passed the security guard without it. There were with it some
rubbers as well as seat covers.
The two workmates had remained
sewing seat covers.







In view of this positive
identification of O’Brian with the empty container, and the same
container being in the drain with glue,
I cannot agree that the
security guard was wrong when he concluded that it was the two
workmates who stole and hid those items in
the drain. Even on a
balance of probabilities it is safe to conclude that they are the
persons who stole the property.







This is supported by the fact
that once the two workmates left the factory the security guard heard
the two saying: “The items
are missing”. According to his
evidence at the hearing this was after the security guard had taken
the items.







I am satisfied that this
detailed report of the security guard establishes that the respondent
and his workmate are the people responsible
for the theft of the
items found in the drain.







The security guard also said he
went straight to the direction where Brian had come from and that is
where he discovered the five-litre
container.







The above evidence is sufficient
to support the conclusion that they are the ones who stole the above
items.






In conclusion, the appeal
succeeds. The decision of the Tribunal is set aside and the
decision of the senior labour relations
officer is reinstated. The
respondent is to pay the costs.











SANDURA JA: I agree.











GWAUNZA JA: I agree.









Wintertons,
appellant's legal practitioners