PATEL J: The
plaintiff herein claims the sum of US$150,000 as damages for malicious
misconduct allegations brought against him by the defendant in April 2008. The
defendant denies any malice or illegality on its part.
Consequently,
the principal issue for determination in this case is whether or not the misconduct
allegations and proceedings brought against the plaintiff were motivated by
malice, prejudice and without legal basis. The second issue is whether or not
the plaintiff suffered any damages and, if so, the quantum thereof.
Evidence for the Plaintiff
Luke Jim Davies, the plaintiff,
testified as follows. He joined the defendant company in June 2006 as its
Procurement Manager and was promoted to the post of Administration Manager in
August 2007. Throughout 2007 he received good performance appraisals from his
superiors and his performance reviews contained no allegations of misconduct.
Again, an independent external group audit was conducted from June to August
2007 and an internal audit followed from November to December 2007. Neither of
these audits implicated the plaintiff as regards his work-related activities in
2007.
From March 2008, he reported to Mr. Vambe,
the Acting Chief Finance Officer. At that time, a secret investigation was
carried out into his department by the internal audit unit. This was instigated
by Mr. Chigogwana, the Managing Director, and Ms. Nyamupachitu, the Chief Human
Resources Officer, both of whom saw the plaintiff as an obstacle to their
self-serving fraudulent activities. The plaintiff was not consulted during the
investigation and neither he nor his staff participated in the process.
In April 2008, he was served with an
Administration Department Investigations Report focusing on the performance of
his duties in 2007 [Exhibit 1]. The findings contained in the Report were false
and unfounded. Vambe handed the Report to the plaintiff and asked him to
respond. He did so in detail as regards the six charges levelled against him
[Exhibits 2 and 2A-2F]. Later that month, despite his detailed responses which
showed that there was no good cause for disciplinary proceedings, he was served
with a notice to attend a hearing to answer charges of misconduct [Exhibit 3].
The hearing was conducted at the end of
April and the minutes of that hearing were produced in early May [Exhibit 4]. Later
in May, he received the determination of the Hearing Officer [Exhibit 5]. He
was found guilty on one out of the six charges and sentenced to a severe
written warning valid for 6 months. He then appealed against that finding
through his lawyers at the end of May [Exhibit 6]. The appeal was conducted in
mid-June and minuted the next day [Exhibit 7]. The determination of the Appeals
Officer, which was received a few days later, upheld the original finding of
guilt as well the penalty imposed [Exhibit 8].
Thereafter, the plaintiff appealed to the
Labour Office and the matter was referred to compulsory arbitration. The
arbitration hearing was held in October and the arbitral award was handed down
in November 2008 [Exhibit 9]. The arbitrator set aside the finding of guilt and
ordered the cancellation of the written warning.
According to the plaintiff, Ms.
Nyamupachitu's malice was evident from two letters that she wrote in November
2007 confirming his appointment to the post of Administration Manager [Exhibits
10A & 10B]. She was malicious because his promotion diluted her position in
the Human Resources Department, as appears from the organogram attached to
Exhibit 10B. She also benefited from the unprocedural purchase of her company
car by having it under-priced. Together with Chigogwana, she orchestrated the
allegations against the plaintiff. Chigogwana himself engaged in various
corrupt and fraudulent activities involving the over-priced procurement of
computer equipment and luxury cars for the defendant company. Following several
independent audits, he was dismissed from the company in 2009.
In November 2008, the defendant unilaterally
terminated the plaintiff's employment, contrary to his wishes [Exhibits 11A
& 11B]. The estimated equivalent of his earnings at that time was circa US$3,000 per month, including
salary and various executive allowances. Thereafter, the defendant has declined
to issue a certificate of service, thereby preventing him from access to other
jobs through employment agencies. Such certificate is essential as a rule for
employment in the financial sector.
The plaintiff is qualified as a Chartered
Buyer, through the United Kingdom Chartered Institute of Purchase and Supply,
and holds an MSc degree in strategic management from the University of Derby.
He also holds various board positions, including Finance Deacon of the Celebration Church and Chairman of the Zimbabwe
Chartered Institute of Purchase and Supply from 2006 to 2008. Although the
allegations against him were not publicised outside the defendant company, they
not only undermined his position within the company but also penetrated and
prejudiced his public life through word-of-mouth. The allegations were also
discussed at the AGM of the Zimbabwe Chartered Institute of Purchase and Supply
in November 2008. Consequently, he lost his re-election to the chairmanship of
that body and also had to defend himself before the United Kingdom Institute.
The plaintiff claims damages for malicious
prosecution by the defendant company acting through its functionaries, namely,
Nyamupachitu and Chigogwana, resulting in psychological distress to himself and
his family. Furthermore, because of the damage to his reputation in the
financial sector, he has been unemployed since November 2008.
Under cross-examination, the plaintiff
admitted that he received his full pay and benefits throughout the disciplinary
proceedings. He also conceded that he did not raise the question of malice
before the Hearing Officer and the Appeals Officer, nor did he object to Chigogwana
chairing the appeal proceedings. This was despite the fact that he was legally
represented at both hearings. He further accepted that his acquittal by the
arbitrator was based on certain procedural weaknesses in the internal
disciplinary proceedings.
Evidence for the Defendant
Prisca Nyamupachitu has been employed
by the defendant as its Chief Human Resources Officer since September 2003. She
holds two diplomas in education and training management as well as a BSc degree
in sociology from the University
of Zimbabwe and an MBA
degree from the Zimbabwe Open University. Her evidence was as follows.
She
was involved in hiring the plaintiff in 2006 and has worked with him until
2008. She did not encounter any problems in her working relationship with the
plaintiff at any time. The plaintiff was promoted to the post of Administration
Manager with two other managers, the Fleet Manager and the Procurement Manager,
becoming his subordinates. Before that, these two managers reported to the
Chief Operating Officer and not to the witness as claimed by the plaintiff.
The
witness wrote Exhibit 10A, citing the 1st of September 2007 as the
effective date of the plaintiff's promotion, that being the date initially
fixed by the Chief Finance Officer, Mr. Chimbera. She then received an
instruction from Chimbera that the plaintiff's promotion date was to be the 1st
of August 2007. Consequently, she wrote Exhibit 10B superseding Exhibit 10A,
simply revising that date in accordance with Chimbera's instruction.
As
regards disciplinary proceedings generally, the initial investigation is
carried out by Internal Audit, Security and Investigations or the relevant head
of department, depending on the nature of the allegations concerned. The matter
is then referred to Human Resources and, if there are reasonable grounds for
instituting disciplinary proceedings, that department appoints a Hearing
Officer with the requisite disciplinary training to hear the matter.
Exhibit
1 resulted from a Reserve Bank of Zimbabwe (RBZ) audit of the defendant from
April to June 2007. The RBZ issued a corrective order in November 2007,
ordering the removal of certain staff and requiring the tightening of control
systems in all departments. This called for an audit of all departments within
the defendant company, including the plaintiff's department.
The
Administration Department was initially audited in November 2007. This was
followed up by another audit resulting in Exhibit 1. It was not necessary for
the internal auditors to advise or consult the plaintiff in these
investigations. Thereafter, he was duly called upon to respond to the issues
raised in Exhibit 1.
Following
the plaintiff's responses, the Acting Chief Finance Officer, Mr. Vambe, felt
that the plaintiff had not satisfactorily addressed certain issues and that
there were reasonable grounds for disciplinary proceedings. He then approached
Human Resources and, having analysed all the papers, that department agreed
that there were reasonable grounds to prefer misconduct charges. The witness
then appointed the head of Personal Banking, Mr. Makombe, as the Hearing
Officer. The latter acquitted the plaintiff on five charges but found him
guilty on one charge. The plaintiff appealed and the appeal was heard by
Chigogwana, who was one of two Managing Directors, the other not having been
available at that time. The Chief Executive Officer, Mr. Hounsell, decided that
Chigogwana should be the Appeals Officer in this case.
In November 2008, the arbitrator overturned
the finding of guilt and the penalty imposed upon the plaintiff. Consequently,
the witness pulled out the written warning from the plaintiff's personal file
and sent a memorandum to him confirming that fact, thereby implementing the
arbitrator's decision.
Soon afterwards, Hounsell forwarded Exhibit
11 to the witness, who then processed the plaintiff's terminal benefits and
deposited them into his current account. Subsequently, the plaintiff referred
his termination to the Labour Office and then to arbitration on several
grounds. The arbitrator determined that his contract of employment had been
lawfully terminated. The witness was not aware of any appeal against that
determination.
In
July 2008, in keeping with the defendant's motor vehicle policy, the witness
exercised her right to purchase her company car, a second-hand Mercedes Benz.
The Fleet Manager, Mr. Chideya, who was the plaintiff's subordinate, obtained
three market value quotations and sent an e-mail to the witness [Exhibit 12].
This e-mail was copied to the plaintiff as the Administration Department
Manager and he was therefore involved in or aware of the process. The Chief
Executive Officer then fixed the price at US$31,250 which was the highest
quoted price. This was converted to the Zimbabwe Dollar equivalent of $846 trillion,
using the bank rate, and reflected in the vehicle purchase agreement between
the defendant and the witness [Exhibit 13].
As
regards certificates of service, the defendant's standard form shows when the
employee joined the group, the position held, the date of termination and the
reason for termination [Exhibit 14]. It does not contain any other detail or
reference. In any event, the plaintiff did not at any time request the witness
or anyone else in Human Resources to furnish a certificate of service.
Under
cross-examination, the witness insisted that Exhibit1 as read with Exhibits
2A-2F, on an objective and bona fide
assessment, contained sufficient grounds to prefer misconduct charges against
the plaintiff. It was not her function to determine allegations of misconduct
but simply to advise whether there were reasonable grounds to proceed with a
disciplinary hearing. The decisions of the Hearing Officer and Appeals Officer
would have been more informed decisions based on all the evidence and not the papers
alone.
When
questioned by the Court, the witness explained that she was testifying on
behalf of the defendant as part of her Human Resources duties. She has
previously represented the defendant as a witness in all the other labour
matters that have proceeded beyond the internal procedures of the defendant.
Vicarious Liability
The
plaintiff's case, in essence, is that the disciplinary proceedings in casu were maliciously instituted by
the defendant through its officers, acting in the course and within the scope
of their employment with the defendant. These employees orchestrated the
proceedings against the plaintiff so as prevent him from interfering with their
fraudulent activities.
The defendant disclaims vicarious liability
on the ground that, if the employees were indeed acting so as to defraud the
defendant, they were engaged on a frolic of their own and, therefore, cannot
have been acting in the course and scope of their employment. While this
argument is not entirely without merit, it must be noted that the two employees
in question were engaged as senior managers whose respective duties would
inevitably have included the performance of disciplinary functions. Thus, even
if their ulterior purpose was to sideline the plaintiff so as to further their
fraudulent designs, their involvement in the disciplinary proceedings cannot be
said to have been fraudulent per se.
It was an integral aspect of their work which, according to the plaintiff, they
performed in an improper manner. On that basis, if the plaintiff's contention
is correct, it seems to me that the defendant cannot absolve itself of any
liability that might arise as a consequence of the improper performance by its
employees of their designated functions. In short, the defendant's vicarious liability
extends to such unlawful actions of its employees as may reasonably be regarded
as modes, albeit improper modes, of doing what it has authorised. See Feldman (Pty) Ltd v Mall 1945 AD 733 at 742-743; Zungu
v Administrator Natal & Another
1971 (1) SA 284 (D&CLD) at 285; Nyandoro
v Minister of Home Affairs & Another
HH 196-2010 at 5.
Malicious Allegations and Proceedings
According to Feltoe: A Guide to the Zimbabwean Law of Delict (2006), the delict of
malicious prosecution or proceedings is committed:
“when
D maliciously and without reasonable and probable cause brings legal
proceedings against another. Every citizen has a right to use legal proceedings
legitimately for the purpose of upholding and protecting his rights. He or she
does not, however, have the right to abuse the legal process for the purpose,
not of upholding and furthering his or her rights, but instead solely for the
purpose of causing harm to P because he or she has malice towards P.
Thus,
it constitutes a delict if D, actuated by malice and with no reasonable and
probable grounds for doing so, does any of the following: procures the arrest
or detention of P by the proper authorities (malicious arrest or detention); or
institutes against P unsuccessful civil or criminal proceedings resulting in
injury to reputation or pecuniary loss (malicious prosecution); or issues
execution against P's property, which writ has been set aside (malicious
execution).
…
As regards malicious prosecution, the case of Bande v Muchinguri (1999)
points out that the term 'malice' did not here mean spite or ill-will or a
spirit of vengeance; it had a wider connotation. It included any motive
different from that which is proper for the institution of criminal
proceedings, which is to bring an offender to justice and thereby aid in the
enforcement of the law.”
The plaintiff's claim is an actio iniuriarum for malicious
proceedings or abuse of legal proceedings. For present purposes, the essential
elements of this delict are that: the defendant set the law in motion against
the plaintiff; in doing so, the defendant acted without reasonable and probable
cause, viz. without any objective
basis; the defendant's conduct was actuated by malice or improper motive; the
proceedings were terminated in favour of the plaintiff; and the plaintiff
suffered damages as a result of the proceedings. See Beckenstrater v Rottcher
& Theunissen 1955 (1) SA 129 (A) at 133-136; Van der Merwe v Strydom
1967 (3) SA 460 (A) at 467.
It
is common cause that disciplinary proceedings were instituted by the
defendant's officers against the plaintiff and that those proceedings were
eventually terminated by the arbitral award in the plaintiff's favour. What is
in dispute is whether these officers acted without reasonable and probable
cause and whether their conduct was actuated by malice or improper motive.
As
regards good cause, the plaintiff's position is that the defendant has failed
to prove that Exhibit 1 resulted from any corrective order issued by the RBZ.
Again, by failing to call the author of the misconduct charges (Vambe) to
testify, the defendant has further failed to show good cause for the misconduct
proceedings. In light of the plaintiff's detailed and well-documented responses
to Exhibit 1, there was no reasonable basis for those proceedings to have
ensued. This is demonstrated by the plaintiff's internal acquittal on five of
the six charges against him and his eventual acquittal on all charges. As for
malice, the defendant's employees deliberately excluded the plaintiff from the
investigations culminating in Exhibit 1, in clear breach of the Labour
(National Employment Code of Conduct) Regulations 2006 (S.I. 15/2006).
Thereafter, their improper motive was also evidenced by their persisting with
misconduct charges despite overwhelming documentary evidence to the contrary.
In
rebuttal, the defendant's position is that it instituted the disciplinary
proceedings against the plaintiff in accordance with the National Code. In so
doing, the defendant acted with reasonable and probable cause and followed due
process in conducting and concluding the proceedings. The onus of proof in
relation to the absence of good cause and the allegations of malice fell
squarely on the plaintiff. Having regard to the defendant's evidence countering
those allegations, the plaintiff has failed to prove the requisite malice to
establish his case.
Section 6 of the National Code permits an
employer, who has good cause to believe that an employee has committed an act
of misconduct, to suspend such employee with or without pay and benefits.
Thereafter, the employer must within 14 working days investigate the matter and
conduct a hearing into the alleged misconduct. At such hearing, the employee
must be afforded a full opportunity to prepare his case and defend himself, either
in person or through a fellow employee, worker's committee member, trade union
official or legal practitioner.
In the instant case, the
investigation into the plaintiff's department appears to have been conducted
pursuant to the RBZ corrective order, as an incident of the requirement to
carry out random periodic checks on all of the defendant's departments. The
investigation took place without the plaintiff's participation and before any
disciplinary action was taken. Although the plaintiff's involvement in the
investigation process might have been desirable, I do not think that its
absence rendered the investigation irregular. In any event, the plaintiff was
asked to respond to the allegations contained in the investigation report and
he did so comprehensively and in great detail.
Subsequently, his superior officer, in consultation
with the head of the Human Resources Department, considered all the papers and
decided that there should be a hearing to determine the allegations of
misconduct. They then appointed a colleague to hear the matter and there is
nothing to suggest that this person was anything other than neutral. At the
hearing, the plaintiff was legally represented and afforded a full opportunity
to present his case. He was exonerated on five of the six charges against him
and this decision was upheld on internal appeal. Ultimately, the finding of
guilt on the sixth charge was set aside by the arbitrator, who then ordered the
defendant to cancel the penalty imposed upon the plaintiff and expurgate it
from his record.
In hindsight, given that the plaintiff was entirely
absolved of all the charges against him, it is arguable whether there was good
cause to believe that he had committed any act of misconduct. However, there is
nothing in the evidence before me to dislodge the defendant's assertion that
the decision to institute misconduct proceedings was taken on an objective
assessment of the papers and that the internal hearings were conducted in
accordance with the rules of natural justice. In my view, the fact that the
defendant was eventually acquitted does not necessarily mean that there was no
reasonable ground from the outset for instituting misconduct proceedings. It
seems to me that the genuine purpose of those proceedings was to formally adjudicate
the allegations of misconduct that had been preferred in order to determine the
plaintiff's guilt or innocence.
In this regard, it is also apposite to consider the
specific findings of the arbitrator. Very significantly, he did not dismiss the
possibility of some nexus between the internal audits and the charges levelled
against the plaintiff. In essence, he acquitted the plaintiff because of “poor
workmanship on the minutes of the hearing and determination handed down in this
matter”, viz. because of procedural
and technical defects rather than substantive deficiencies.
As
regards malice, it is important to note that the plaintiff did not raise the
question of malice or victimisation throughout the disciplinary proceedings,
even though he was legally represented. Moreover, the defendant did not at any
stage, as it was procedurally entitled to do, suspend the plaintiff or prevent
him from performing his functions. On the contrary, he remained on full pay and
benefits from the beginning to the conclusion of the disciplinary proceedings.
As
for ulterior motives, it is common cause that Chigogwana was dismissed by the
defendant in 2009, apparently in compliance with the RBZ corrective order.
However, there was no evidence to sustain the plaintiff's assertion that
Chigogwana actively instigated the disciplinary proceedings in casu. Again, in Nyamupachitu's case,
there is nothing to show that she bore any grudge or ill-will against the
plaintiff. His promotion to the post of Administration Manager did not in any
way undermine her authority as Chief Human Resources Officer, and her
explanation regarding his letters of appointment was perfectly plausible and
acceptable. With respect to the acquisition of her company car, it is
abundantly clear that this was an arms-length transaction, carried out in full
compliance with the defendant's motor vehicle policy and with the plaintiff's
knowledge.
Quantum of Damages
In
view of my findings on liability, it is obviously not necessary to consider the
question of damages. Nevertheless, I think it instructive to point out that the
plaintiff's claim for US$150,000 as damages appears to be ill-conceived for a
variety of reasons. Apart from the sheer enormity of the sum in question, the
specific headings and sub-headings under which this amount is claimed are
entirely unclear. Plaintiff's counsel is directed to bear this in mind when
launching similar actions in the future.
Disposition
It follows from the foregoing that the
plaintiff has not been able to discharge the onus of establishing his case. He
has failed to show, on a balance of probabilities, that the defendant acted
without reasonable and probable cause or that its conduct was actuated by
malice or improper motive. This action is accordingly dismissed with costs.
Gutu & Chikowero,
plaintiff's legal practitioners
Kantor & Immerman,
defendant's legal practitioners
