Court name
Supreme Court of Zimbabwe
Case number
SC 4 of 2007
Civil Appeal 261 of 2005

Circle Tracking v Mahachi (61/05) (SC 4 of 2007, Civil Appeal 261 of 2005) [2007] ZWSC 4 (21 March 2007);

Law report citations
Media neutral citation
[2007] ZWSC 4


DISTRIBUTABLE
ZLR (7)

















Judgment
No. SC 4/07


Civil
Appeal No. 261/05









CIRCLE
TRACKING v MIKA MAHACHI








SUPREME
COURT OF ZIMBABWE


MALABA
JA, GWAUNZA JA & GARWE JA


HARARE,
FEBRUARY, 13 & MARCH 22, 2007








S
Machiridza
,
for the appellant





No
appearance for the respondent








GARWE JA: At
the conclusion of the appeal from a decision of the grievance and
disciplinary committe, the Labour Court upheld the
appeal and ordered
that the appellant re-instate the respondent with no loss of salary
or benefits. It is against that decision
that the appellant has
appealed to this Court.





The
facts of this case are these. At the relevant time the respondent
was employed by the appellant as a driver. It appears
to be common
cause that there was a standing instruction that drivers were not
allowed to carry unauthorised passengers. It further
appears from
the record that this instruction was not being complied with and for
that reason a Mr Huni (the security officer) and
Mr Taberekerwa (the
transport controller) left Harare for the Eastern Highlands to check
on company vehicles travelling to and from
that area. This was on 7
October 1999. It is not in dispute that Mr Huni and Mr Taberekerwa
met the respondent, as well as another
driver by the name Mukorera.
What happened thereafter was in dispute during the disciplinary
proceedings that followed. Mr Huni
and Mr Taberekerwa told the
disciplinary hearing that they had seen the respondent carrying
unauthorised passengers and luggage.
The respondent on the other
hand denied this completely.






At the hearing the respondent
was charged with:





“contravening
s 5(l) Part V 2 and s 5(p) of the Circle Cement Code of Conduct (“the
Code”): In that on 7 October you were caught
carrying passengers
and goods …”.








The
respondent was found guilty of “contravening s 5(1) Part VI of the
Code i.e. corruption”. He was consequently dismissed
from the
employ of the appellant.





The
respondent thereafter appealed to the Labour Court against his
dismissal. The Labour Court upheld the appeal.






The judgment
of the Labour Court is attacked by the appellant on three grounds.
The first is that contrary to the finding of the
court
a
quo

the respondent was correctly charged in terms of the Code. The
second is that the conduct of the respondent was corrupt and
therefore
the disciplinary board correctly found him to be guilty of
corruption. The third is that the court
a
quo

did not fully appreciate the question of
onus
and that such
onus
was on the appellant, dischargeable on a balance of probabilities.






The
first and second issues raised are interlinked and will be dealt with
together. The question is whether the respondent was correctly
charged and therefore correctly found guilty of misconduct. The
allegation in the charge that was preferred against the respondent
was that he had carried unauthorised passengers and goods in
contravention of s 5 Part V 2 and s 5(p) of the Code. He was
eventually
found guilty of contravening s 5(l) Part VI of the Code.





On
a careful analysis of the record it is apparent that the respondent
appeared before the disciplinary committee facing two alternative
charges arising from the same set of facts. In this regard I would
agree with the appellant’s submission that the appellant was
not
facing two distinct offences.






The gravamen
of the offence was carrying passengers and goods without authority.
That is the offence that the respondent was facing
before the
disciplinary committee. Whether the carrying of passengers in these
circumstances contravened s 5 (1) or 5(p) of the
Code was the second
rung of the inquiry. This is the issue the court
a
quo

was obliged to determine. It was never suggested that carrying
unauthorised passengers was in itself a specified offence. In
the
end the disciplinary committee found the respondent guilty of
contravening s 5(l) i.e. corruption. The issue is whether the
conviction on an allegation of corruption is proper.






The
word corruption is defined in the Concise Oxford Dictionary as:





“decomposition;
moral deterioration; use of corrupt practices (bribery, etc);
perversion (of language, text, etc.) from its original
state;
deformation … ”








Corruption
is not a common law offence. The Prevention of Corruption Act has,
however, made provision for certain specific acts
and made them
criminal.





The term
corruption in the context of the Code must be given its ordinary
grammatical meaning and not be construed within the criminal
context.
Indeed some decisions of this Court have stressed that a Code of
Conduct should be interpreted in such a way as to give
effect to the
intention and spirit of the Code of Conduct. It is not the kind of
document that should be construed strictly and
each word given a
legal meaning..





In all the
circumstances I am satisfied that a driver who, without the authority
of his employer, carries passengers and goods in
return for a fee
would not only be acting contrary to his employer’s instructions
but would also be corrupt. The act of carrying
passengers without
the knowledge of the employer and exacting a benefit out of such a
transaction would amount to corruption for
purposes of the Code of
Conduct.





I would
consequently agree with the appellant that the respondent was
correctly charged. I would further agree with the submission
made
by the respondent that the ferrying of goods and passengers in these
circumstances would also be a contravention of s 5(p) of
the Code,
i.e. disobedience to a lawful order or instruction given by the
employer. Since the respondent could not be found guilty
of
contravening both sections, he was, in my view, correctly charged
with contravening s 5(1) of the Code. It is not correct, as
the
court
a quo
found, that the appellant was charged with one offence but was
dismissed for a different offence.





It appears
that in framing the charge against the respondent reference was made
initially to Part V2 and thereafter to Part V1.
In my view, the
respondent knew the particulars of the offence he was facing. The
failure to correctly cite the relevant part
of the Code applicable
was never made an issue. In my view, nothing turns on this.





On the
question of
onus
the Labour Court remarked that:





“What
emerges from the minutes is that the appellant was proving his
innocence instead of the respondent having to prove the appellant’s
guilt. It is settled that a person is innocent until proved guilty
and that he who alleges must prove.





Evidence
was led in court. There is evidence to show that something happened
at Christmas Pass. However, it is not clear what charge
the appellant
ought to have been facing. The appellant was charged with offence
(
sic)
but was dismissed for another offence. In
Standard
Chartered Bank v Matsika
1996(1)
ZLR 123 it was held that it would be incompetent for an employee to
be dismissed on the basis of a conviction on a charge
which he/she
was not originally charged with.





From the
various portions of the record which the court has referred to, it
would appear the respondent was not quite sure about whether
or not
the appellant had committed an offence. The charge was not clear …





I have
already commented on the propriety of the charge preferred against
the appellant. That the respondent was correctly charged
there can
be no doubt. The apparent confusion on the part of the learned
Labour Court President arose from her failure to appreciate
that the
particulars given, i.e. carrying unauthorised passengers, were
intended to prove the two alternative offences leveled against
the
respondent. These were not distinct charges. The particulars were
intended to complement the actual charge, i.e. of contravening
s 5 of
Part VI of the Code. It is also unclear how the learned President
arrived at the conclusion that the respondent in this
case had had to
prove his innocence instead of the appellant proving his guilt. The
record shows clearly that the appellant called
witnesses before the
respondent did so. It is not clear in what way the respondent was
asked to prove his innocence. The
onus
of proving the guilt of the respondent lay on the appellant. That
onus was
discharged. It is clear that the learned President failed to come
to a definite finding owing to the fact that she failed to
appreciate
that there was only one offence being preferred against the
respondent i.e. carrying unauthorised passengers in contravention
of
either para (i) or para (p) of s 5 of Part VI of the Code. The
learned President erroneously concluded that the respondent was
charged with one offence but was convicted of another. She failed
to make a definite conclusion on the facts owing to what she
perceived as impropriety in the charge preferred against the
respondent.





It is not
the position, as suggested by the respondent in his heads of
argument, that the learned President did not find sufficient
evidence
to formulate a factual finding that the respondent did carry
unauthorised passengers. It is clear the learned President
accepted
that “something had happened” but did not know what charge
applied thereto.





In all the
circumstances, I am satisfied that the decision of the Labour Court
was wrong and that it should be set aside.





In the
result, it is ordered as follows -





“1. The
appeal be and is hereby allowed with costs.






2. The decision of the Labour
Court is set aside and in its place the following is substituted:





The appeal is
dismissed with costs.”

















MALABA
JA: I agree.














GWAUNZA JA: I
agree.














Simbarashe
Machiridza
,
appellant’s legal practitioners


Matimba &
Muchengeti
,
respondent’s legal practitioners