This is an appeal against the entire judgment of the Labour Court
dismissing the appellant's appeal against a decision of the Grievance
and Disciplinary Committee of the National Employment Council for the
Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which
found that the appellant had failed to prove a prima facie case against
the respondent.
FACTUAL BACKGROUND
The
appellant, British American Tobacco Zimbabwe, is a company registered
in terms of the laws of Zimbabwe. The respondent was employed by the
appellant as a Trade Marketing Representative.
The respondent was charged with an act of misconduct which was couched in the following terms:
“Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters
Violation of Clause (d) defined as;
Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:
Charges
against you are emanating from that on 31st May 2012 you allegedly
withdrew US$2,605 from British American Tobacco Zimbabwe's (BAT
Zimbabwe) account and converted this amount to your own use.”
The
charge arose after it was discovered, that, there were two withdrawals
of an amount of USD2,605 from the appellant's Standard Chartered Bank
account on two occasions, namely, 18 May 2012 and on 31 May 2012, using
one withdrawal instruction.
The withdrawal of 18 May 2012 was
authorised and was made by the respondent. The withdrawal of 31 May 2012
was unauthorised and was deemed fraudulent as the instruction used on
18 May 2012 was the same one which was used again to withdraw money on
31 May 2012.
On the face of it, the latter withdrawal was also made by the respondent.
The
charges were laid almost a year later, on 29 July 2013, and the
respondent was suspended from work with full pay and benefits in terms
of the applicable Code of Conduct, being, the Collective Bargaining
Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI
322/96).
A disciplinary hearing was held and the Disciplinary
Committee found the respondent guilty as charged on the basis of a
forensic report by a forensic scientist, who, after analysing several
samples of the respondent's signature, concluded that the signature on
the 31 May withdrawal slip was consistent with the respondent's standard
signature.
Consequently, the respondent was dismissed from
employment with effect from 30 August 2013, the date on which the
Disciplinary Committee made the decision.
The respondent appealed to the Works Council against the dismissal.
The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:
(a) Obtain the original withdrawal documents;
(b) Get an explanation from the bank on the processing of a withdrawal slip;
(c) Get confirmation from the bank whether video evidence was still available; and
(d) Seek clarification on issues raised by the Mutare Branch Manager during the initial hearing.
However,
without obtaining and considering the documents and evidence it had
hoped to get from the bank, on 25 November 2013, the Works Council made,
and availed, its decision upholding the dismissal penalty by the
Disciplinary Committee.
Aggrieved by the decision of the Works
Council, the respondent further appealed to the National Employment
Council for the Tobacco Industry (NEC Grievance and Disciplinary
Committee) which upheld his appeal and set aside the order by the Works
Council.
The NEC Grievance and Disciplinary Committee's
reasoning, in arriving at this decision, was that the only evidence
which the appellant had relied on, namely, the handwriting expert's
report, was unreliable as it was based on photocopies which do not
clearly show some of the features, and that, therefore, the appellant
had failed to prove its case against the respondent.
Further, the
NEC Grievance and Disciplinary Committee found that the bank was not
co-operative as it failed to provide information which would have
assisted the Committee in its determination of the guilt of the
respondent or otherwise.
This information included the original
withdrawal slip, the relevant video footage, and an explanation of how
withdrawal slips are processed.
In light of the inconclusive
handwriting report, and the missing information which the bank was
reluctant to supply, the NEC Grievance and Disciplinary Committee
concluded, that, whilst the respondent's connivance with the bank could
not be ruled out, on the proven facts and available evidence, the
appellant had failed to prove the respondent's guilt on a balance of
probabilities.
Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court.
The
appellant's grounds before that court were essentially, that, the NEC
Grievance and Disciplinary Committee had erred at law, and misdirected
itself, in a number of respects:
It had erred and misdirected
itself in holding, that, the appellant had failed to substantiate its
claim when it found that connivance with the bank could not be ruled
out; in disregarding the forensic report by the handwriting expert; in
ignoring the respondent's identification details which were affixed on
the withdrawal slip, and, in holding that the fraudulent transaction had
been committed by a member of the bank.
The court a quo upheld the decision of the NEC Grievance and Disciplinary Committee.
It
reasoned, that, the withdrawal slip of 31 May 2012 was effected at 0800
hours, a time when the doors of the bank get opened to the public, and
that there was no evidence that was led to show that the respondent was
already in the bank at that time. Further, it found that the forensic
report relied upon was based on the examination of photocopies and not
the original documents which were kept at the bank.
Consequently,
the court a quo concluded, that, the evidence on record pointed rather
to the involvement of the bank's personnel and not that of the
respondent. The appeal was thus dismissed.
BASIS OF PRESENT APPEAL
Aggrieved by the court a quo's decision, the appellant has appealed to this Court on the following grounds:
1.
The court a quo erred and misdirected itself in failing to find that
sufficient evidence, including expert forensic evidence and facts, had
been established linking the respondent to commission of the offences
charged under clause (d) of SI 322 of 1996.
2. The court a quo
further erred and misdirected itself in failing to find, that, in any
event, sufficient evidence had been led to establish respondent's
connivance in the commission of the offences charged under clause (d) of
SI 322 of 1996.
3. The court a quo further erred and misdirected
itself in rejecting expert evidence pointing to the respondent's guilt
and connivance in the commission of the offence charged under clause (d)
of S.I. 322 of 1996.
4. The court a quo consequently erred and
misdirected itself in failing to find, that, the respondent's guilt had
been established, and, consequently, his dismissal was lawful.
THE ISSUE
From
these grounds of appeal, and the facts above, the only issue for
determination is whether or not there was sufficient evidence in the
record to link the respondent to the commission of the offence.
APPELLANT'S SUBMISSIONS BEFORE THIS COURT
The
submission by counsel for the appellant, in both his written and oral
submissions, is that the appellant managed to prove, on a balance of
probabilities, that, the fraudulent withdrawal of its funds, on 31 May
2012, was made in the respondent's name and on his signature, that the
withdrawal instruction bore the respondent's identity details, all of
which aspects were confirmed by the handwriting expert's report which
concluded that the signature on the withdrawal slips matched that of the
respondent.
Consequently, the appellant argued, the respondent
was guilty of the offence charged and the NEC Grievance and Disciplinary
Committee had, therefore, wrongly found him not guilty.
RESPONDENT'S SUBMISSIONS BEFORE THIS COURT
Counsel
for the respondent argued, that, the appellant failed to prove, on a
balance of probabilities, that, the respondent had committed the
offence. He argued that the respondent could not have signed the
withdrawal slip of 31 May 2012 because he could not have been in the
bank before the bank's opening time for him to have been served at
8:00am, and that, therefore, the withdrawal could only have been done by
a staff member of the bank.
He further argued, that, the
handwriting expert's report was unreliable and inconclusive because the
expert relied on photocopies of the withdrawal slips in assessing the
signature. To show the unreliability of the photocopies, the respondent
pointed out the fact that the expert missed the variation between the
forged signature on the photocopy of the 31 May 2012 withdrawal slip
which ended with two dots and the appellant's standard signature which
had none.
ANALYSIS
The
charges that were laid against the respondent arose after the
withdrawal of 31 May 2012 because the withdrawal slip was in his name
and was purportedly signed by him. In addition, his identification
particulars were also recorded thereon.
A perusal of the record shows, that, there was no direct evidence linking the respondent to the offence.
The appellant relied on circumstantial evidence.
The respondent, on his part, argued that the circumstantial evidence relied on did not prove that he was guilty.
In S v Tambo 2007 (2) ZLR 33 (H)…, (a criminal matter), the court held that:
“Circumstantial
evidence can only be used to draw an inference, if the inference sought
to be drawn is the only reasonable one which can be drawn from those
facts. It must be supported by rational reasoning and an analysis of the
proved facts. The correct judicial assessment of evidence must be
based on establishing proved facts, the proof of which must be a result
of careful analysis of all the evidence led. The final result must
be the product of an impartial and dispassionate assessment of all the
evidence placed before the court.”…,.
However,
in cases where not only one inference can be drawn, the court, in
Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H)…, held that;
“In a
civil case, where the court seeks to draw inferences from the facts, it
may, by balancing probabilities, select a conclusion which seems to be
the more natural or plausible (in the sense of credible) conclusion from
among several conceivable ones, even though that conclusion is not the
only reasonable one.”…,.
In Miller v Minister of Pensions [1947] 2 All ER…, the concept of balancing probabilities was explained as follows;
“It
must carry a reasonable degree of probability, but, not so high as is
required in a criminal case. If the evidence is such that the tribunal
can say 'we think it more probable than not' the burden is discharged, but, if the probabilities are equal, it is not.”…,.
In the book, The South African Law of Evidence, 4th Edition, HOFFMAN and ZEFFERTT state as follows:
“In
a civil case…, if the facts permit more than one inference, the court
must select the most plausible. If this favours the plaintiff, he is
entitled to judgment. If inferences in favour of both parties are
equally possible, the plaintiff has not discharged the burden of
proof….,.
Selke J held, in Govan v Skidmore, that, the selected
inference must 'by the balancing of probabilities, be the more natural,
or plausible, conclusion from among several conceivable ones.'”
The
learned authors expound further and explain, that, the court may
however find that the contentions of the party who has produced no
evidence are the more probable.
They state, that, what is weighed
in the balance is not quantities of evidence but the probabilities
arising from that evidence and all the circumstances of the case.
In the text Principles of Evidence, 4th edition, the authors SCHWIKKARD and Van der MERWE similarly state:
“In
civil proceedings, the inference sought to be drawn must also be
consistent with all the proved facts, but, it need not be the only
reasonable inference: it is sufficient if it is the most probable
inference. For example, in AA Onderlinge Assuransie-Assosiasie Bpk v De
Beer 1982 (2) SA 603 (A) it was held, that, a plaintiff who relies on
circumstantial evidence does not have to prove that the inference which
he asks the court to draw is the only reasonable inference: he will
discharge his burden of proof if he can convince the court that the
inference he advocates is the most readily apparent and acceptable
inference from a number of possible inferences.”
In casu, the appellant, having alleged that the respondent had committed an offence, had the burden to prove the allegation.
It is trite in our law, that, he who alleges must prove.
It
was the evidence of the appellant, that, the fraudulent withdrawal slip
was processed at 0800hours on 31 May 2012. The fraudulent withdrawal
was made in the name of the respondent, and, an almost similar signature
to his was affixed to the withdrawal slip. The withdrawal slip also
bore the respondent's personal details.
It was on the strength of
this that the charge was laid against the respondent leading to a
disciplinary hearing, where a handwriting expert was called to examine
the withdrawal slip to determine whether it was forged or it was indeed
signed by the respondent.
The expert found that the signature on the withdrawal slip was the same as the appellant's standard signature.
The
expert's conclusion was based on an examination of photocopies, and, it
was on this score, that, the respondent challenged the expert's finding
as well as the fact that his true signature had no dots as reflected on
the signature appearing on the photocopies.
The bank was asked to assist in this matter, but, was not co-operative.
At
one point, it was asked to provide the original copies of the
withdrawal slip; it was also asked to assist with an explanation of the
processing of a withdrawal slip, and to also produce a video footage
placing the respondent at the bank.
The bank did not come through on all these requests.
The
bank's unco-operative attitude must be viewed against the backdrop of
the allegation, that, the bank knew, or, already had the respondent's
details; that the withdrawal slip was at all material times in the
possession of the bank and was never accessed by the respondent, and
that the same bank teller who had served the respondent and processed
the withdrawal of 18 May 2012 was the same teller who processed the same
withdrawal on 31 May 2012.
The bank's un-cooperative attitude is not irrelevant in the determination of this appeal.
The
specific requests that were made of it were in relation to critically
material aspects that would need to be adverted to in determining
whether, on a balance of probabilities, the respondent could be said to
be guilty.
In the absence of such, the guilt of the respondent cannot be said to have been proved - even on a balance of probabilities.
The
finding of the NEC Grievance and Disciplinary Committee, which was
confirmed by the court a quo, cannot, in the circumstances, be faulted.
The
finding was that the probabilities pointed to the direct involvement of
a bank official in the dishonest activities, particularly because the
transaction took place at 8:00am - the exact time that the bank would
have been opening its doors to the public.
No evidence placed the
respondent at or inside the bank at the relevant time. The bank already
had the respondent's personal details. There was no evidence that the
respondent had ever accessed the withdrawal slip in question as it
remained in the bank's possession at all material times. This is
particularly significant when note is taken of the fact, that, the
withdrawal slip was in the bank's possession for some thirteen days
before the second withdrawal was made.
The bank's failure to co-operate unfortunately meant that a number of possibilities cannot be discounted in this matter.
The
court a quo found, that, because the bank was in possession of the
withdrawal slip, any of its officials could have used the documents that
had previously been presented in order to capture the signature and the
identity particulars of the respondent. The court a quo found, that, it
was not clear whether the respondent was involved or not in the
withdrawal of 31 May 2012.
The appellant's involvement was thus not proved.
The
appellant's involvement or guilt in the withdrawal that occurred on 31
May 2012 was not the most readily apparent and acceptable inference.
Rather, the balance of probabilities tended, in the view of the court a
quo, to point to direct involvement by the bank or its employees.
Regarding
the evidence of the handwriting expert, it is trite that expert opinion
evidence is admitted in evidence to assist the court to reach a just
decision by guiding the court and clarifying issues not within the
court's general knowledge.
In Menday v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that:
“It
is not the mere opinion of the expert witness which is decisive, but
his (or her) ability to satisfy the Court, that, because of his (or her)
special skill, training, and experience, the reasons for the opinion
which he (or she) expresses are acceptable.”
In R v Chidota 1966 (3) SA 428 (another criminal matter) the learned judge, QUENET JP, held that:
“Where
the sole evidence concerning an accused with the commission of an
offence is that of a handwriting expert, precaution should be taken to
remove the possibility of error.”
It is trite, that, in the final
analysis, the court itself must draw its own conclusions from the
expert opinion and must not be overawed by the proffered opinion and
simply adopt it without questioning or testing it against known
parameters.
In S v Zuma 2006 (2) SACR 257, 263 the court held
that the expertise of a professional witness should not be elevated to
such heights that sight is lost of the court's own capabilities and
responsibilities in drawing inferences from the evidence.
In
casu, the handwriting expert, having relied on photocopies, was found to
have consequently missed certain distinguishing features peculiar to
the respondent's signature. For that reason, the adjudicating authority
ought to have found that such evidence was inadequate and thus could not
be relied on.
It would be remiss for a court to rely on expert
opinion evidence which fails to clarify that which the court needs
clarification on.
Where a handwriting expert relies on
photocopies of the document in issue, any conclusions drawn therefrom
could be inconclusive as there is a real chance that the analysis may
miss certain details crucial to the determination of whether or not the
document is forged may be overlooked. The purpose of seeking expert
opinion evidence is thereby defeated.
DISPOSITION
In
light of the above findings, I am of the view that the appeal lacks
merit and therefore ought to be dismissed, with costs following the
cause.
In the result, it is ordered that the appeal be and is hereby dismissed with costs.
