Court name
Supreme Court of Zimbabwe
Case number
SC 47 of 2007
Civil Appeal 319 of 2005

Malimanjani v Central Africa Building Society (CABS) (19/05/01) (SC 47 of 2007, Civil Appeal 319 of 2005) [2007] ZWSC 47 (03 September 2007);

Law report citations
Media neutral citation
[2007] ZWSC 47
Coram
Ziyambi JA
Gwaunza JA
Garwe JA

REPORTABLE (45)


Judgment
No. SC 47/07


Civil
Appeal No. 319/05








PASSMORE
MALIMANJANI v





CENTRAL
AFRICA BUILDING SOCIETY (CABS)








SUPREME COURT OF
ZIMBABWE


ZIYAMBI  JA,
GWAUNZA  JA & GARWE  JA


HARARE, SEPTEMBER 3,
2007








L Mazonde,
for the appellant





H Zhou, for
the respondent






GWAUNZA  JA: At the hearing of this appeal, counsel for
the appellant conceded that he had no meaningful submissions
to make
on behalf of the appellant. Counsel for the respondent then moved
for the dismissal of the appeal with costs. This
Court thereupon
dismissed the appeal with costs and indicated that the reasons would
follow. These are they.







The facts of the matter are as follows. The appellant was
employed as a bank teller by the respondent. On 31 March 2003

he recorded a shortfall of $50 000.00 and made a report to his
superiors. A few days later, the appellant reimbursed the
sum of
$50 000.00. He, however, lied to his superiors that he had
recovered the money from a client whom he had overpaid.
In reality
he had paid the money from his own resources.







The appellant was subsequently charged with the misconduct of
“unsatisfactory work performance”, was found guilty and dismissed

from his employment. His successive appeals to the Local Joint
Committee, the Negotiating Committee and the Labour Court were

unsuccessful. He has now appealed to this Court.







The court a quo found that the appellant, having acted
dishonestly, had performed his duties in an unsatisfactory manner and
was therefore properly
dismissed. The court a quo noted
as follows at p 4 of its cyclostyled judgment (Judgment No.
LC/H/104/2005):






“He (the appellant) acted dishonestly. He performed his duties in
an unsatisfactory manner in that he sought to mislead the
employer as
to how he had incurred the shortfall and further as to how he had
recovered the shortfall. Performing your duties
in a dishonest
manner is clearly unsatisfactory work performance.”







The appellant takes issue with the decision of the court a quo
on a number of grounds.







Firstly, the appellant seeks to argue that the court a quo
erred in holding that by lying about the source of the refund, he had
committed an act of dishonesty as contemplated by s 5
to PART IV
Offences of the respondent’s Code of Conduct (“the Code”). He
contends that under the Code dishonesty and
unsatisfactory work
performance are listed separately and, by definition, did not cover
the type of conduct that led to misconduct
charges being preferred
against him.







I do not find any merit in these contentions. The appellant does
not deny that he lied, firstly by saying that the shortfall
was
occasioned by an overpayment made to a client, and secondly by
stating that the same client had provided the refund. These
are by
any definition serious offences. As correctly contended for the
respondent, in a financial institution, such as the respondent,

integrity and honesty are fundamental attributes forming an integral
part of the employee’s performance of his work.







The respondent’s Code makes it clear that such conduct as
unsatisfactory performance of work and dishonesty are dismissible

offences. Details of conduct that would constitute such offences
must be viewed in the light of being examples. They could
not
possibly have been meant to be exhaustive. Viewing them as
exhaustive would result in the ridiculous situation where someone
who
commits an offence that in the ordinary sense would constitute the
conduct in question, e.g. dishonesty, would walk free simply
because
the specific offence was not listed as an offence. That could not
have been the intention of the drafters of the Code,
who, in general,
are not schooled in the law.







The conduct with which the appellant was charged constituted
dishonesty and unsatisfactory performance of his work, if the
ordinary
meaning of those words is to be applied. The court a quo
was alive to this interpretation and noted as follows at p 3 of
its cyclostyled judgment:






“The Labour Court is a court of equity concerned, not with the
formalities and technicalities of the legal profession, but with

achieving just and equitable resolution of disputes between the
parties.”







Earlier on, the learned President of the Labour Court had observed,
again correctly, as follows at p 3 of its cyclostyled
judgment:






“The Supreme Court has stated in Coh Coh Enterprises v
Mativenga and Anor
SC 30/2001 that one cannot strictly
interpret the provisions of the Code or restrict it to what the lay
persons stated.
It would not be in the interest of justice to find
that an admitted act of dishonesty is not covered in the Code because
the drafters
shoddily drafted the offences.”







These passages being apposite to the circumstances of this case, I am
satisfied the appellant was properly charged, “convicted”
and
dismissed from his employment.







Secondly, the appellant takes issue with the court a quo’s
finding that the penalty of dismissal was properly imposed. He
contends that the court a quo erred in not considering
the imposition of other alternative forms of punishment besides
dismissal.







The issue of what punishment to impose after an employee is found
guilty of an act of misconduct is clearly one of discretion.
The
respondent’s Code emphasises this in para 3.4 of its Part I,
which reads as follows:






“3.4 The penalties to be imposed for each offence are specified in
Part IV and Part V. Part V applies to the
Private
Security Sector only. However, an employer may apply a lesser
penalty at his discretion.” (my emphasis)







It is trite that an appeal court does not interfere with the
exercise of discretion by a lower tribunal unless it is shown that

the discretion was improperly exercised. As contended for the
respondent, the penalty imposed must show a serious misdirection
to
justify interference by the appeal court. The misconduct with which
the appellant was charged attracts the penalty of dismissal.
There
is nothing in the manner in which the proceedings were conducted, and
the evidence against him considered, to suggest any
misdirection on
the part of the employer.







The court a quo was therefore correct in upholding the
decision to dismiss the appellant from his employment.







In the light of the foregoing, we were satisfied the appeal had no
merit, hence we dismissed it with costs.











ZIYAMBI  JA: I agree











GARWE  JA: I agree











Mbidzo, Muchadehama & Makoni, appellant's legal
practitioners



Gill, Godlonton & Gerrans, respondent's legal
practitioners