Court name
Supreme Court of Zimbabwe
Case number
SC 43 of 2005
Civil Appeal 303 of 2002

Zimbabwe Electricity Supply Authority v Mare (03/02) (SC 43 of 2005, Civil Appeal 303 of 2002) [2005] ZWSC 43 (02 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 43


REPORTABLE (36)




















Judgment No
SC 43/05


Civil Appeal No 303/02

















ZIMBABWE
ELECTRICITY SUPPLY AUTHORITY v MOSES MARE











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
ZIYAMBI JA & GWAUNZA JA


HARARE JUNE 6 &
OCTOBER 3, 2005








L. Mazonde, for
the appellant





No appearance for
the respondent









CHIDYAUSIKU CJ: The respondent in this matter, an employee of
the appellant, was charged with four counts of misconduct.
He was
charged with contravening the following sections of the Code of
Conduct: s 7(e)(viii), conducting oneself or behaving in
a manner
which brings or is likely to bring the name of the Authority into
disrepute; s 7(e)(vi), hindering or obstructing any employee
from
performing his duties; s 7(j)(i), taking and converting or
attempting to take and convert to his own private use property or
money belonging to the Authority or in its lawful possession; and,
s7(j)(iii), making any false claims or returns e.g. for travel
and
subsistence allowance.





The Disciplinary
Committee which tried the respondent in the first instance found the
respondent guilty on three of the four counts.
They found him
guilty of conducting himself or behaving in a manner which brings or
is likely to bring the name of the Authority
into disrepute; of
hindering or obstructing any employee in the performing of his
duties, and of making false claims or returns.






Upon being found guilty of the above charges of misconduct the
respondent was dismissed from employment. The respondent appealed
against the determination of the Disciplinary Committee to the
Appeals Committee in terms of the Code of Conduct. The Appeals
Committee
dismissed the appeal.





The respondent appealed
to the then Labour Tribunal, now the Labour Court. I shall refer to
the Tribunal as the Labour Court hereinafter.
The Labour Court
allowed the appeal and reversed the determination of both the Appeals
Committee and the Disciplinary Committee.
The Labour Court ordered
the reinstatement of the respondent without loss of salary and
benefits.





The appellant was
dissatisfied with this outcome and now appeals to this Court.






COUNT ONE



The respondent was found guilty by both the Disciplinary Committee
and the Appeals Committee of contravening s 7(e)(vi) of the Code
of
Conduct, that is, of hindering or obstructing any employee from
performing his duties.






Factual findings of both the Disciplinary and the Appeals Committee,
which findings were not challenged on appeal, are that on 2
November
1994 and at Masvingo depot the respondent intercepted and forcibly
took from Mr Samangure, (“Samangure”) a ZESA employee,
a report
that Samangure was preparing regarding certain misconduct proceedings
involving two ZESA employees, Messrs Chakauya and
Makoni (“Chakauya
and Makoni”). Samangure was preparing the confiscated report for
submission to the Masvingo Senior Depot
Foreman who required it for
use as evidence at a Disciplinary Hearing into the alleged misconduct
of Chakauya and Makoni.





Both the Disciplinary
and the Appeals Committee concluded that the taking of the report by
the respondent was unauthorized and involved
harassment to fellow
ZESA employees, namely, Samangure and Shoshore. The Disciplinary
Committee found as a fact that the respondent
had forcibly and
against the will of Samangure taken the report from him. It was
also common cause that an altercation ensued as
a result of the
respondent’s conduct. That conclusion on the evidence led before
the Disciplinary Committee cannot be faulted
and was never
challenged.





The learned President
of the Labour Court allowed the appeal on this count upon the
following basis:-






“In the present case when the appellant intervened during the
course of some investigations he had been requested to do so. He
was not hindering the normal production processes as such. He was
discharging his duties as a representative of the workers and
therefore not subject to the control of his employer. He was not
acting in his capacity as an employee as he was defending a worker’s
rights.”









It is common cause that the respondent is a member of the Workers’
Committee and that he intervened in this matter at the request
of the
employee who was under investigation for misconduct. In my view
members of the Workers’ Committee are not a law unto themselves.

There is no legal basis for a member of the Workers’ Committee to
simply, through the use of force, seize a report from a fellow
employee in the above circumstances. I accept that a member of the
Workers’ Committee has a duty to defend workers’ rights.
In
defending the rights of the workers a member of the Workers’
Committee is enjoined to observe due process. It is lawful
for the
employer to investigate any alleged misconduct of its employees and
after such investigation to institute disciplinary proceedings.

That is due process. It was not lawful for the respondent or any
member of the Workers’ Committee to forcefully obstruct the
lawful
investigation into an employee’s misconduct. The investigation
should have been allowed to proceed without obstruction.
It was
open to the respondent to defend the worker charged with misconduct
at the Disciplinary Hearing.





The President of the
Labour Court clearly misdirected herself in concluding that because
the respondent was a member of the Workers’
Committee he was
entitled to take the law into his hands and obstruct the
investigations that were being conducted by the employer.
All these
events happened at the work place, in the course of employment and
accordingly there is no basis for concluding, as the
learned
President of the Labour Court did, that these events occurred outside
the scope and course of employment.





COUNTS TWO AND
THREE


It is convenient to
deal with these two counts as one as the factual basis relating to
these counts is essentially the same. The
facts of counts two and
three are that the respondent submitted two claims, one to NEC and
the other to the ZESA Pension Fund, for
travel and subsistence in
respect of the same journey and same period. It is alleged that
such conduct is dishonest and contravenes
s 7(j)(iii) of the Code of
Conduct which proscribes the making of false claims. It is further
alleged that by conducting himself
in that manner the respondent
brought into disrepute the name and image of the appellant contrary
to the provisions of s 7(e)(viii)
of the Code of Conduct which
proscribes such conduct.






The respondent, by virtue of his employment with ZESA, is a member of
the ZESA National Employment Council (“NEC”) and a trustee
of the
ZESA Pension Fund. The respondent traveled from Masvingo to Harare
to attend a meeting of NEC and a Christmas party of the
ZESA Pension
Fund. The appellant contends that the respondent brought the name
of ZESA into disrepute or tarnished ZESA’s image
by making double
and false claims for travel and subsistence allowance from both NEC
and the Pension Fund in respect of the same
period, namely 8 and 9
December 1994. The two claims for travel and subsistence allowance,
one of which was submitted to NEC and
the other to the Pension Fund,
clearly show that the respondent claimed from both NEC and the
Pension Fund breakfast and lunch in
respect of 9 December 1994. The
same document also reveals that he claimed transport from both NEC
and the Pension Fund in respect
of a single journey to Harare.
There is no doubt that in respect of these expenses the respondent
claimed from both NEC and the
Pension Fund.






When asked to explain
why the respondent submitted the double claims to the two
organisations his response was that somebody had
forged or altered
the dates on the travel and subsistence claims so that he could get
into trouble. He claimed that somebody with
a hidden agenda had
endorsed or altered the date on the claim form from 8 December to 9
December to get him into trouble. When
asked to explain the double
claim in respect of the transport allowance his explanation was that
it was not a double claim because
after the meeting at NEC in the
late afternoon of 8 December he traveled to Masvingo in order to get
his invitation card to the Pension
Fund Christmas party due to be
held in Harare the following evening of 9 December. He stated that
he traveled overnight getting
to Masvingo in the morning and driving
back to Harare immediately in order to be in time for the party. In
short he was alleging
that he made two trips to Harare over the
period in question.





The respondent’s
explanations for the double claims were rejected by both the
Disciplinary Committee and the Appeals Committee
as false. The
rejection of the respondent’s explanations as false cannot be
faulted. That rejection was never challenged on
appeal. It is
quite clear from the travel and subsistence claim forms completed by
the respondent that he claimed transport from
both NEC and the
Pension Fund in respect of the same journey and that he claimed
breakfast and lunch from both NEC and the Pension
Fund in respect of
the same day, the 9 December 1994. The appellant contends that this
conduct of the respondent was dishonest.
The respondent no doubt
appreciated that his conduct was dishonest. This is the only
possible reason why he offered a false explanation
for his conduct.
If the respondent thought that his conduct was in order there would
have been no need for the false explanation.
He would have simply
said that he was entitled to two transport allowances as well as the
two breakfasts and lunches for the 9th December 1994.





I have no doubt in my
mind that the respondent was not entitled to the two transport
allowances, two breakfasts and two lunches
in respect of the 9th
December 1994. The respondent must have appreciated that he was not
entitled to make the double claims and in making the double
claims he
was acting dishonestly. He compounded his transgression by offering
false explanations for such conduct.





The conduct of the
respondent was fraudulent and certainly amounts to a contravention of
the above sections of the Code of Conduct.





The learned President
of the Labour Court misdirected herself in her approach to this
issue. In this regard this is what she had
to say:-






“If indeed the respondent established that at no time did the
appellant handle its money then charging the appellant with
dishonesty
of any form is in my view improper. Had the appellant
been dishonest to both ZEEWU and the Pension Fund the position would
have
been different. To appellant’s credit not only is there
proof that the claims he lodged were properly checked and honoured by
the relevant authorities but at p 37 of the record ZEEWU wrote to
ZESA pleading for clemency on behalf of the appellant.”









Clearly the learned President of the Labour Court failed to
appreciate the gravamen of the charge against the respondent. The
respondent was being charged for dishonest and fraudulent conduct.
The conduct of the respondent was clearly dishonest and fraudulent.

The respondent never disclosed to the two parties that he was
claiming from both transport allowance in respect of the same
journey.
He never disclosed to the two parties that he was claiming
breakfast and lunch from them in respect of the same day. Had he
made
such disclosure there would be no basis for alleging that he was
dishonest. The contention by the respondent that the appellant
had
no locus standi to complain about the double claims has no
substance. The record shows that ZESA is a major contributor to the
ZESA Pension Fund
and has a substantial interest in NEC. On the
facts of this case, who was the victim of the respondent’s
dishonesty is a matter
of little consequence. His conduct was
dishonest and fraudulent and ZESA was entitled to charge him with
misconduct.





A reading of the
proceedings against the respondent before the Disciplinary and
Appeals Committees clearly shows that the evidence
was properly
assessed and the law properly applied to the facts and the right
conclusion reached. There was no basis for interference
by the
Labour Court.





In the result the
appeal is allowed, the order of the Labour Court is set aside, and
the determination of the Appeals Committee
is reinstated. The costs
follow the result and the respondent is ordered to pay the costs.















ZIYAMBI JA: I
agree.











GWAUNZA JA: I
agree.















Muzangaza Mandaza &
Tomana
, appellant's legal practitioners