MATHONSI
JA: This
is an appeal against the whole judgment of the Labour Court delivered
on 14 July 2017 which dismissed with costs an appeal launched in that
Court by the appellant against the decision of the respondent's
Appeals Committee dated 20 July 2016.
The
Appeals Committee upheld the decision of the respondent's
Disciplinary and Grievance Committee which found the appellant guilty
of 'deliberate misrepresentation of facts' in the declaration of
assets. It dismissed the appellant from employment with effect from
31 March 2016.
BACKGROUND
The
appellant was employed by the respondent as a Revenue Officer based
at Beitbridge Border Post. In terms of Clause 16 of his contract of
employment he was required to declare any newly acquired assets,
which declaration would be verified by the respondent. A failure to
declare assets or making a false declaration amounted to an act of
misconduct.
Indeed,
deliberate misrepresentation of facts in the declaration of assets is
listed as Serious Offence number 26 under acts of misconduct carrying
a maximum penalty of dismissal for a first offence in the
respondent's registered Code of Conduct. The Code was registered by
the Registrar of Labour Relations on 3 February 2003.
Sometime
in 2015 the respondent commenced an exercise to conduct a lifestyle
audit for members of staff. This was designed to fight the scourge of
corruption bedevilling the organisation, creating a bad image and
undermining public confidence in the revenue collecting institution.
The lifestyle audit was being undertaken by the respondent's Loss
Control Division. The appellant is one of the staff members affected
by the exercise.
A
bank search resulted in the unearthing of a Stanbic Bank account in
the name of the appellant in which regular deposits in varying
amounts were made by different people. Between August and October
2015, 12 separate deposits with a total amount of US$57,598.30 had
been deposited in that account attracting the attention of Loss
Control Officers. Upon being questioned about the money, the
appellant gave an explanation in affidavit form.
He
stated that the money constituted repayments of loans he had advanced
to other people, payments for goods sold to some people and bribes
received for undervaluing certain declared goods as well as avoidance
of seizure of goods as required by the respondent's procedures.
The
appellant later recanted that affidavit statement insisting it had
been made under duress as he was intimidated by Loss Control
Officers.
Previously,
on 25 October 2011 the appellant had, in accordance with his
contractual obligations, completed an asset declaration form in which
he declared only household effects as assets that he owned. On 11
June 2013, the appellant completed another Asset Declaration Form in
which he declared a Honda CRV motor vehicle he had acquired in June
2012 and an FBC Bank account opened in 2011.
On
22 January 2014 the appellant again completed an asset declaration
form in which he declared a Toyota Mark X motor vehicle acquired on 5
January 2014.
Finally,
on 23 October 2015 he completed an asset declaration form which
formed the basis of the misconduct charge preferred against him. In
that form the appellant repeated the declaration of the Toyota Marks
X declared on 22 January 2014 and the FBC Savings account opened in
August 2011 with a bank balance of $100.00. The bank account had also
been declared previously on 11 June 2013.
As
I have said, investigations by the respondent revealed that at the
time the appellant made the asset declaration of 23 October 2015, he
had a pre-existing Stanbic savings bank account which had an inflow
of deposits. It had a balance of US$57,598.30. He had converted that
account to a savings account by letter to the Bank manager dated 8
July 2015. The appellant failed to declare that asset in the
declaration form.
On
31 March 2016 the appellant was suspended from duty without pay and
benefits in terms of Clause 10.1(ii) of the respondent's Code of
Conduct. He was charged under the Code of Conduct, Group D, Serious
Offences, Category 26, that is, deliberate misrepresentation of facts
in the declaration of assets.
The
Disciplinary Committee found that the appellant had indeed completed
the asset declaration form in question which did not have the Stanbic
account and the money declared. It found that there is no form signed
by the appellant in which that asset was declared even though the
account had been converted to a savings account on 8 July 2015.
Accordingly the appellant was found guilty and dismissed from
employment.
The
appellant appealed to the Appeals Committee which upheld the decision
of the Disciplinary Committee. The Appeals Committee reiterated that
the asset declaration form required employees to give a correct
record of all the assets, investments and businesses owned fully or
jointly by them. The appellant had failed to do so and was therefore
correctly found guilty and dismissed from employment.
Again
the appellant was aggrieved. He lodged an appeal to the Court a
quo
on several grounds. The essence of his appeal was that he had
submitted a separate asset declaration form to the respondent's
Human Resources Department in which he had declared the asset held in
the Stanbic savings account. That declaration form had gone missing
in that department. Both the Disciplinary and Appeals Committees had
made “an unreasonable and outrageous finding of fact” that no
declaration had been made because the respondent's filing system
was in a state of a shambles.
The
Court a
quo
found that nothing had been advanced by the appellant justifying
interference with the factual findings of the tribunal below and that
the Stanbic account had not been declared by the appellant. It found
that there was no basis for interference because there was nothing on
record pointing to the fact that the appellant ever made a separate
declaration of the bank balance and no date of such a declaration was
suggested.
In
arriving at that conclusion the Court a
quo
reasoned at p2 of the cyclostyled judgment:
“The
appellant did not declare everything. The affidavit in question was
made voluntarily and without any undue influence being brought to
bear on the appellant. There is therefore no reason why the bank
account in question was not declared. In the result the respondent's
appeals committee was correct to have found that the offence against
the appellant had been proved on a balance of probabilities. It
upheld the dismissal.
In
Barros
v Chimpondah
1991 (1) ZLR 58 (S) the Supreme Court stated that a decision from a
lower tribunal should only be interfered with if it is plainly wrong.
I
am not able to say the decision of the Appeals Committee is 'plainly
wrong'. I also find that the Appeals Committee considered all the
evidence before it, before coming to its conclusion.”
Still
the appellant was not satisfied. He appealed to this Court on the
grounds that follow.
GROUNDS
OF APPEAL
Three
grounds of appeal are relied upon by the appellant. They are:
1.
The court a
quo
grossly erred and misdirected itself by dismissing the appellant's
appeal on the basis that the appellant failed to prove he had
submitted the declaration form and that he had declared all assets
when evidence on record showed that the respondent's system of
submitting the declaration forms had no records and/or registers of
submission and had no clarity on how the forms ought to be filled
which defect was conceded by the respondent.
2.
The court a
quo
grossly erred and misdirected itself by dismissing the appellant's
appeal and thus allowing the respondent to benefit from its own wrong
emanating from its shambolic declaration of assets system, which it
charged the appellant for failure to comply with and which system it
had to adjust and amend after the appellant's disciplinary hearing.
3.
The court a
quo
grossly erred and misdirected itself in making a finding that the
respondent had proved the guilt of the appellant on a balance of
probabilities as the system of submitting asset declaration forms was
in shambles and had no certainty such as to prove someone submitted
or did not submit a form.
I
have to point out that the first ground of appeal does not raise a
point of law at all.
In
terms of section 92F of the Labour Act [Chapter
28.01],
in terms of which this appeal is made, an appeal to this Court from
any decision of the Labour Court lies on a question of law only.
The
point was made in Muzuva
v United Bottlers (Pvt) Ltd
1994 (1) ZLR 217 (S) at 220 E-F that the phrase 'question of law':
“First
it means 'a question which the law itself has authoritatively
answered to the exclusion of the right of the court to answer the
question as it thinks fit in accordance with what it considers to be
the truth and justice of the matter'. Second, it means 'a
question as to what the law is.' Thus an appeal on a question of
law means an appeal in which the question for argument and
determination is what the true rule of law is on a certain matter.
And third, any question which is within the province of the judge
instead of the jury is called a question of law. This division of
judicial function arises in this country in a criminal trial presided
over by a judge and assessors.
I
respectfully adopt this classification, although the third sense is
of no relevance to a matter such as this.”
The
first ground of appeal clearly addresses factual issues and not any
question of law. It falls far too short of the requirements. There is
no basis for this Court to exercise jurisdiction over the issue
raised in that ground which fails to raise any question of law. See
Hlahla
v OK Zimbabwe
SC64/04.
The
first ground of appeal will not be entertained because it has not
been suggested nor shown that the factual findings of the lower court
being contested were grossly unreasonable. Neither has it been
suggested nor shown that there was such serious misdirection as to
amount to a misdirection of law. It is only in such circumstances
that this Court would have a foothold for interference.
As
eminently articulated by this Court, with considerable eloquence, in
Mazunze
v Lobels Brothers
SC96/02 at p 2 of the cyclostyled judgment:
“This
was quite clearly a finding of fact.
I
agree with Mr Ncube, for the respondent, that it cannot be appealed
against in terms of section 92(2) of the Act unless it was
accompanied by a serious misdirection amounting to a misdirection in
law or the decision was so outrageous in its defiance of logic that
no reasonable court properly applying its mind could have come to it.
The notice of appeal contains no allegation of such a misdirection in
law or irrationality by the tribunal. It raises no question of law
and is, therefore fatally defective and void.”
See
also Zinwa
v Mwoyounotsva
2015 (1) ZLR 935 (S);
Hama v National Railways of Zimbabwe
1996 (1) ZLR 664 (S) at 670C-D.
The
same applies to the first ground of appeal in the present appeal.
In
fact, even the second ground could have been crafted in a more
elegant manner because it also does not contain a proper allegation
of a misdirection at law or the irrationality of the decision of the
court a
quo.
As I said, this Court will not exercise jurisdiction over the first
ground of appeal as it is fatally defective. That ground therefore
stands to be struck out. It is accordingly struck out.
ISSUE
FOR DETERMINATION
Emanating
from the remaining grounds of appeal is only one issue for
determination on appeal: whether the court a
quo erred
in finding that the guilt of the appellant had been proved on a
balance of probabilities.
SUBMISSIONS
ON APPEAL
Mr
Mapuranga,
for the appellant, submitted that the appellant completed a separate
asset declaration form in which he declared the asset contained in
the Stanbic savings account. The form in question was given to the
respondent's Human Resources Department on an unknown date, two
weeks prior to the submission of the declaration form of 23 October
2015. The form in question was misplaced by that department.
As
to why it became necessary, if indeed the appellant had made a
declaration two weeks earlier, for him to make another one on 23
October 2015, Mr Mapuranga
could not say.
On
why the appellant did not include the Stanbic account in the
declaration form of 23 October 2015 if he had included it in the
missing declaration form, Mr Mapuranga
submitted that the appellant understood the procedure for declaring
assets to mean that each declaration form was an update of new assets
acquired. According to him, it was not necessary to include the bank
asset in the new form of 23 October 2015 as it had already been
declared.
As
to what it is that is in the declaration form of 23 October 2015
which was an update, Mr Mapuranga
could not say. This is so because the declaration form in question
contains only a Toyota Marks X motor vehicle which had already been
declared in the form dated 22 January 2014. It also contained the FBC
savings account which had already been declared in the form of 11
June 2013.
Mr
Mapuranga
maintained that the failure to declare the Stanbic bank account was
as a result of a misunderstanding which does not constitute an act of
misconduct. It cannot be said that the account was not declared
because the respondent did not keep a register of the declaration
forms. In fact it's record keeping was shambolic.
Mr
Bhebhe,
who appeared for the respondent, submitted that the charge of
deliberately misrepresenting facts in the declaration form of 23
October 2015 was proved. In proving the charge, all the employer had
to do was to show that the declaration form made by the employee did
not have the correct information pertaining to his assets. That was
done.
According
to Mr Bhebhe,
the simple question to be asked is: Was all the appellant's
property listed in the declaration form in question? If it was not,
then the charge would be proved.
He
maintained that the declaration form is very clear and there is
nowhere in it where it calls for an update. All the assets of the
employee must be listed. Accordingly, all the evidence presented
points to a deliberate non-disclosure of the Stanbic bank account
which, admittedly, was opened in July 2014.
ANALYSIS
It
is crucial to note from the onset that the declaration of assets by
the appellant employee was a contractual obligation. This is made
clear by Clause 16 of the employment letter dated 27 August 2013
signed by the parties. It states in part:
“You
will be required to declare any newly acquired assets which will be
verified by the authority. Failure to declare assets or making false
declaration amounts to an act of misconduct.”
I
have said that the employment code of conduct of the respondent also
lists “deliberate misrepresentation of facts in the declaration of
assets” as a dismissible serious misconduct.
It
is therefore apparent that in the employment relationship between the
parties the declaration of assets is viewed in serious light. It has
to be, given the commitment by the respondent to stamp out corruption
among its employees. Lifestyle audits play a crucial part in that
process.
The
asset declaration form itself is couched in such a way that, not only
does it contain specific instructions on what has to be declared by
the employee, it also admits of no doubt whatsoever that all the
employee's assets must be listed on the declaration form. The one
that the appellant completed on 23 October 2015 has a preamble which
reads:
“I
Dambanjera Admire of Block 79/2413 Mpopoma Bulawayo hereby declare
that today 23 day of October 2015 have the following movable and
immovable properties whose detailed description is also supplied.”
The
appellant was required to submit a list of all his assets. There is
absolutely nothing to suggest that each declaration form completed
required the employee to list only new assets not declared
previously.
It
does not end there. The concluding part of the declaration reads:
“I
solemnly declare that the information I have given above is
a correct record of all the assets, investments and businesses owned
fully or jointly by me.
I
also declare and promise to disclose for purposes of updating this
record, any immovable and/or movable assets, investments and
businesses that may accrue to me during my employment with ZIMRA.
I
have signed this form out of my own will without any undue
influence.” (The underlining is for emphasis).
The
appellant never suggested that he did not read and understand the
instructions on the declaration form. He is taken to have appreciated
what he was required to put in the form.
The
suggestion that he was declaring his assets in instalments, in
separate forms, also does not hold water. This is so because in the
form giving rise to the misconduct charge, he declared both the
Toyota Marks X motor vehicle and the FBC Bank accounts he had
previously declared. This shows that he was aware that all his assets
had to be listed on each and every form submitted.
I
agree with Mr Bhebhe
for the respondent that all the evidence presented suggests only one
thing, that the appellant deliberately omitted the Stanbic Bank
Savings account.
The
omission is significant because a substantial amount was involved
which should not have escaped the appellant's mind when making the
declaration. This is an employee who had the presence of mind to
declare an FBC account containing $100.00. Surely, had he been acting
in good faith he would have declared US$57,598.30.
It
may have been the paucity of the defence that declaration forms were
understood by the appellant to require only updates, that constrained
Mr
Mapuranga to
advance another argument. This relates to the claim that a separate
form containing a declaration of the Stanbic Bank account was
submitted but misplaced by the Human Resources Department.
I
am of the view that the argument is also devoid of merit.
Firstly,
I have found that each declaration form, in particular the one dated
23 October 2015, was a complete instruction to be complied with, for
the declaration of all the assets. A failure to declare the Stanbic
bank account in the declaration form of 23 October 2015 was a
misconduct, irrespective of the existence or otherwise of another
declaration form.
Secondly,
there is no possibility that such a separate declaration form existed
at all. There are a number of reasons why this is so. The record
shows that there were only four employees manning the Human Resources
Department at the time. If indeed the appellant had submitted an
extra declaration form, almost contemporaneously with the one giving
rise to the misconduct charge, he would have remembered both the date
of submission and the person he submitted it to.
Considering
that a declaration form was submitted on 23 October 2015, there was
no reason for submitting another one around the same time. Quite
frankly, the appellant tried to take advantage of the fact that
records are kept by the Human Resources Department to build a
non-existent case. The whole issue about a missing declaration form
is a red herring.
DISPOSITION
The
court a
quo
cannot be faulted for upholding the employer's decision to find the
appellant guilty of misconduct and dismissing him from employment.
Its finding that the appellant's guilt was proved on a balance of
probabilities was based on sound reason. The appeal is without merit
and ought to fail.
Regarding
the issue of costs, in his heads of argument, Mr Bhebhe,
for
the respondent, asked for costs on the scale of legal practitioner
and client because the appeal is frivolous and was noted “mala
fide.”
He
did not advance any further reasons for holding that view. More
importantly, at the hearing of the appeal, Mr Bhebhe
did not motivate the prayer for costs on the adverse scale.
I
am not persuaded that punitive costs are warranted in this matter.
The appellant was entitled to test the correctness of the judgment of
the court a
quo. However,
there is no reason why the costs should not follow the result given
that the appeal is without merit.
In
the result, it is ordered that:
1.
The appeal be and is hereby dismissed.
2.
The appellant shall bear the costs.
GARWE
JA: I
agree
GUVAVA
JA: I
agree
Atukwa
Attorneys, appellant's
legal practitioners
Kantor
& Immerman, respondent's
legal practitioners
