The
appellant
was charged with breaching sections 24(c) and 25(h) of the First
Mutual Holdings Limited Group Code of Conduct. The charges were
framed as:
“1…..,.
2.
Section 25 'Offences relating to dishonesty, theft, fraud and
other related offences'
(h)
Any other dishonesty towards company, fellow members of staff or
members of the public.”
The
first of the two remaining issues for determination ...
The
appellant
was charged with breaching sections 24(c) and 25(h) of the First
Mutual Holdings Limited Group Code of Conduct. The charges were
framed as:
“1…..,.
2.
Section 25 'Offences relating to dishonesty, theft, fraud and
other related offences'
(h)
Any other dishonesty towards company, fellow members of staff or
members of the public.”
The
first of the two remaining issues for determination relates to the
second Count
that the appellant was charged and found guilty on. The submission by
counsel for the appellant was that the respondent had to prove the
appellant's guilt on that Count
beyond reasonable doubt and not merely on a balance of probabilities.
The
position at law, as settled in this jurisdiction, is that the
standard of proof in disciplinary proceedings is a balance of
probabilities - even if the act of misconduct is of a criminal
nature.
In
ZESA v Dera 1998 (1) ZLR 500 (S), the respondent was an employee of
the appellant. He was charged with dishonesty, in contravention of
the appellant's Code
of Conduct.
The committee found him guilty as charged and imposed a penalty of
dismissal. An Appeals Committee dismissed the respondent's appeal.
The then Labour Relations Tribunal overturned the Appeals Committee's
decision, on appeal, on the grounds that the appellant had to prove
the respondent's guilt beyond reasonable doubt, not merely on a
balance of probabilities.
In
allowing the appeal against the Labour Relations Tribunal's
decision, this Court rejected the position taken by the Labour
Relations Tribunal that, in disciplinary proceedings, the accused's
guilt must be proven beyond reasonable doubt. At 503E-504D, this
Court remarked thus;
“It
is a startling, and in my view, an entirely novel proposition, that,
in a civil case, the standard of proof should be anything other than
proof on a balance of probabilities. The reason, I have always
understood, why in a criminal case proof beyond reasonable doubt is
required, is that the loss of a criminal case can result in death by
hanging, incarceration, or at the least, the branding of a person as
a criminal or convict. A criminal trial is an attack by the State,
representing the whole of society, upon the integrity of an
individual. Thus, a person convicted of a crime is marked as one
whose conduct stands condemned by society.
A
civil case, on the other hand, is merely a dispute between
individuals. The loss of such a case, however ruinous in terms of
money or property, loss of employment or loss of face, is not a
judgment by society as a whole, but simply a resolution of the
dispute between the parties. Moreover, the parties in a civil dispute
are equally interested parties, in the sense that each one seeks
relief. A claims money from B, B claims an order that he owes
nothing; A wishes to dismiss B, B wishes to remain employed. In a
criminal matter, the State does not stand to gain or lose by the
outcome of the trial. So, if B is acquitted of theft, the State does
not suffer. But if A is forced to continue to employ B whom it has
accused of theft, A does indeed suffer if B, who is in fact a thief,
is found not guilty of theft. So, in a criminal case, one is
primarily concerned with doing justice to the accused. In a civil
case, one is concerned to do justice to each party. Each party has a
right to justice and so the test for that justice has to balance
their competing claims. Hence the 'balance of probability' test.
ZESA,
in the present case, has a right not to be forced to employ a thief;
Dera has a right not to be dismissed unjustly. The law must balance
those rights.”
This
understanding is reinforced by authority. HOFFMAN & ZEFFERTT, SA
Law of Evidence, 4ed…, say categorically:
“There
are no exceptions to the rule that all issues in a civil action are
decided upon a preponderance of probabilities.”
JOUBERT,
The Law of South Africa, Vol. 9…, says equally unequivocally:
“In
civil proceedings, proof is furnished upon a preponderance of
probability and this is the case even when allegations of criminal or
immoral conduct are to be proved.”
These
statements are fully supported by the cases cited by the learned
authors, and, more recently, by dicta in such cases as B v P 1991 (4)
SA 113 (T)…, (a Full Bench decision), and Industrial Steel &
Pipe Ltd v Sengeredo SC128-97.
This
Court, in the unreported judgment of Nyarumbu v Sandvik Mining &
Construction Zimbabwe (Pvt) Ltd SC31-13…, also stated as follows:
“As
a general rule, the standard of proof required in disciplinary
matters is that on a balance of probabilities. This is obviously not
as stringent as the standard required in criminal cases.”
The
position is also the same in South Africa, as explained by J GROGAN,
Workplace Law (11th
ed, Juta & Co (Pty) Ltd, Grahamnstown, 2014) where…, he states
thus;
“As
in criminal proceedings, the decision of the presiding officer should
be made in two distinct stages. First, the guilt of the accused
employee should be determined on the evidence, without reference to
the employer`s disciplinary record. As far as proof of guilt is
concerned, the presiding officer must ensure that the employee indeed
infringed the applicable rule. The standard of proof in this regard
is proof on a balance of probabilities. When assessing whether the
initiator has achieved that standard, all material evidence must be
considered. While it is recognised that presiding officers are
usually lay persons, they must still apply the law when assessing
guilt. The degree of accuracy expected of presiding officers will
depend partly on the disciplinary code and partly on the manner in
which the charges are phrased. A charge of theft, for example,
requires a presiding officer to ensure, at the very least, and,
albeit, on a balance of probabilities, that the employee appropriated
the property with the intention of denying the owner possession.”
In
Clarence v National Commissioner of the South African Police Services
[2012] 2 BLLR 99 (LAC), the appellant was an inspector in the South
African Police Service. As a result of an incident on 12 November
2004 the appellant was charged with contravening Regulation 18(3) of
the South African Police Service Discipline Regulations of 1996. It
was alleged that he performed an act or failed to perform an act
which constituted an offence, namely, murder, when he shot and killed
a colleague on the day in question. He was found guilty by the
employer and dismissed from work. Aggrieved by that decision, the
appellant in that matter alleged an unfair dismissal. The arbitrator
found that the dismissal of the appellant was substantively unfair
and ordered the respondent to reinstate him retrospectively. The
arbitrator's decision was set aside on review in the Labour Court
and this resulted in an appeal before the South African Labour Appeal
Court.
The
court held as follows with regards to the standard of proof;
“The
employer bears the onus of proving, at the arbitration, that the
member of the SAPS has in fact committed an offence although, of
course, the arbitrator does not convict the member of the offence.
The employer must prove that the member has committed the act on a
balance of probabilities and not on the criminal law onus of proof
beyond reasonable doubt. If the member raises a defence, as the
appellant did here, and pleads that his action was in private defence
so that he acted lawfully does SAPS bear the onus of proving that
this defence would have failed had it been raised at a criminal
trial? It does, because in a criminal trial the State would have
borne the onus, and, in the context of misconduct, SAPS must show, on
a balance of probabilities, that the act, allegedly committed by the
member, was unlawful.”
There
has been, at some stage, some confusion on the issue of the
applicable standard of proof in disciplinary proceedings owing to the
decision in Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR
356 (S).
In
that case, the appellants, who were legal practitioners, and their
two juniors, were jointly and severally charged and found guilty of
unprofessional, dishonourable or unworthy conduct by the Law Society
Disciplinary Tribunal in that they had mis-appropriated clients trust
funds and/or had failed to keep proper books of account as required
by the Legal Practitioners Act and the relevant Regulations and
By-laws. In determining the standard of proof in that case the
court…, held as follows;
“This
raises squarely the issue of the burden of proof in matters coming
before the Disciplinary Tribunal of the Law Society. It seems to me,
from a perusal of the authorities, that the burden of proof varies
with the gravity of the offence charged. Where the offence has strong
criminal connotations, the burden, as submitted by counsel for the
appellants, is on the Society to prove its case beyond reasonable
doubt. On the other hand, where the offence bears no criminal
implication, the burden is the ordinary civil one of a balance of
probabilities.”
The
law is succinctly stated by the learned author of The Law of South
Africa, Vol 14 p371 para360 as follows:
“In
an application to strike an attorney from the roll for
misappropriation of a client's money, proof of guilt beyond
reasonable doubt is required from the Law Society.”
The
two cases cited by the learned author for this proposition are Inc
Law Soc of the Tvl v C 1954 (4) SA 410 (T) at 412G – 413C and
Pitluk v Law Soc of Rhodesia 1975 (2) SA 21 (RA) at 29A–D. The
learned author advances, as a requirement for this higher standard of
proof, the reason that:
“Proceedings
of this nature against an attorney are proceedings of a highly penal
character. They are very analogous to criminal proceedings.”
In
support of this statement, the learned author refers us to Inc Law
Soc v Van Os 1906 TS 733 at 739. He, however, cautions that:
“Disciplinary
proceedings are in the nature of civil proceedings. Hassim (also
known as Essack) v Inc Law Soc of Natal 1977 (2) SA 757 (A),
notwithstanding that a higher standard of proof is demanded of the
Society where it prefers charges that impute criminal conduct and the
fact of an attorney's conviction of a criminal offence is regarded
as prima facie proof that he had in fact committed the offence. In
the instant case, there is no such conviction of the appellants and
nothing less than proof beyond a reasonable doubt is required from
the Society.”
The
learned author concludes para 360 (supra) with the following:
“'If
the allegation goes no further than alleging some breach of
professional etiquette, then proof of that allegation need only be on
a balance of probabilities: Pitluk v Law Soc of Rhodesia supra.
Counsel
for the Society drew our attention to a conflict between the approach
of the courts in South Africa and that of the courts in Zimbabwe
regarding the onus of proof at disciplinary proceedings. Baker J, in
Law Society, Cape v Koch 1985 (4) SA 379 (C), relying on the
decisions in Olivier v Cape Bar Council 1972 (3) SA 485 (A) and
Rheeder v Ingelyfde Wetsgenootskap van die Oranje-Vrystaat 1972 (3)
SA 502 (A) held that, in all civil cases or cases civil in character,
such as disciplinary proceedings of tribunals before which the
appellants appeared, proof on a balance of probabilities was the
applicable measure of proof.
In
Pitluk v Law Soc of Rhodesia supra, even though Olivier's case
supra was brought to the attention of the court, Beadle CJ at p 29B–D
reflected that:
'I
think, however, that in order to remove any difficulty in deciding
whether an allegation involves professional misconduct simpliciter or
where an allegation involves an element of deceit or moral turpitude
of a high order some indication should be given as to where to draw
the line.'
The
learned Chief Justice then advised:
'The
line, I consider, can appropriately be drawn between those
allegations which might make the accused liable to criminal
prosecution and those which might not. For example, if the allegation
against the attorney was that he had embezzled trust funds, that
allegation should be proved beyond a reasonable doubt; but, if the
allegation went no further than alleging some breach of professional
etiquette, then proof of that allegation need only be proved on a
balance of probabilities.'
This
view, expressed by the learned Chief Justice, represents the law of
Zimbabwe in respect of the issue of onus in proceedings such as that
under consideration, whatever the law in South Africa on this subject
may be. Misappropriation of trust funds attracts the striking off the
Register the name of a legal practitioner: Chizikani v Law Soc of
Zimbabwe 1994 (1) ZLR 382 (S). It would be grossly unfair to condemn
a man and punish him for an offence of a criminal nature on the
balance of probabilities rather than evidence which established the
commission of the offence beyond a reasonable doubt.'”
Mention
must be made of the decision of this Court in Astra Industries Ltd v
Peter Chamburuka SC27-12 where OMERJEE AJA, relying on the decision
in Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S)…,
stated, obiter, as follows:
“The
respondent was charged and convicted of theft among other offences.
The essential elements of theft remain the same whether in a
disciplinary hearing or in a criminal trial. The position now appears
settled, in this jurisdiction, that where a person is charged in a
disciplinary hearing with an offence of a criminal nature, such an
allegation should be proved beyond a reasonable doubt and that it
would be unfair to condemn a man and punish him for an offence of a
criminal nature on a balance of probabilities rather than evidence
which established the commission of the offence beyond a reasonable
doubt. In this connection see Mugabe & Anor v Law Society of
Zimbabwe 1994 (2) ZLR 356 (S) 364G – 365B. For the purposes of the
present appeal, it is not necessary to determine whether or not this
principle should apply to ordinary disciplinary proceedings in labour
matters.”…,.
The
burden of proof, as set out in Mugabe & Anor v Law Society of
Zimbabwe 1994 (2) ZLR 356 (S) was, however, qualified by McNALLY JA
in ZESA v Dera 1998 (1) ZLR 500 (S)…, where, at 504E-G he stated as
follows;
“I
am satisfied that the concession as to the law in this regard before
the Tribunal was entirely wrong. Reliance was placed upon cases
involving the disciplining of lawyers before disciplinary tribunals
such as Mugabe & Mutezo v Law Society of Zimbabwe supra at
365B-C; and Pitluk v Law Society of Rhodesia 1974 (2) RLR 245 (A).
The fact that, in such proceedings, a higher standard of proof is
required, does not lead to the conclusion that a higher standard of
proof is required in all disciplinary proceedings.
There
is a fundamental distinction.
When
the Law Society is disciplining one of its members, it is acting as a
guardian of the public interest. It is not itself a directly
interested party in the sense that an employer is. It is acting more
like the State in a criminal trial, than like an employer in a civil
dispute with its employee. Its interests do not need to be protected
in the same way as those of an employer. There is no need to balance
competing interests, as there is in a dispute between employee and
employer.”…,.
On
the qualification of Mugabe & Anor v Law Society of Zimbabwe 1994
(2) ZLR 356 (S), as expounded in ZESA v Dera 1998 (1) ZLR 500 (S), I
am respectfully unable to agree with this Court's remarks in Astra
Industries Ltd v Peter Chamburuka SC27-12.
What
can be concluded from the authorities above. therefore, to the
exclusion of the judgment in Astra Industries Ltd v Peter Chamburuka
SC27-12, is that in disciplinary proceedings before a disciplinary
tribunal, the burden of proof is on a balance of probabilities and
not beyond reasonable doubt.
Various
codes of conduct have provisions which prohibit acts of misconduct
that are criminal in nature like theft. There is no requirement,
neither is it a part of our law, that those acts of misconduct must
be proved beyond reasonable doubt.
Where,
however, a person is charged and arraigned before a body like the Law
Society disciplinary tribunal for acts of misconduct of a criminal
nature, the accused person's guilt must be proven beyond reasonable
doubt because the Law Society acts as a guardian for society against
unscrupulous lawyers.
In
that regard, therefore, the correct position of the law is that in
all disciplinary proceedings the burden of proof is on a balance of
probabilities. The only exception is in disciplinary proceedings
before a body like the Law Society disciplinary tribunal where a
legal practitioner faces charges of a criminal nature. In those
proceedings, the guilt of the legal practitioner must be proved
beyond reasonable doubt.
I
find further fortification in this regard in the recent judgment by
GWAUNZA DCJ, in the case of Charles Marevesa v Telone (Private)
Limited SC32-19 where…, she stated:
“From
the above analysis of relevant dicta, I am satisfied that the
position spelt out in ZESA v Dera (supra) remains the correct
position of the law. The burden of proof in labour proceedings is
proof on a balance of probabilities. This is so regardless of whether
or not the charge in point has criminal connotations. The Labour
Court does not sit as a Criminal
Court
and proceedings before it are civil in nature. The applicant, I find,
misinterpreted the remarks in Astra Industries v Chamburuka judgment
(supra).”
The
court therefore finds that the argument made on behalf of the
appellant on this aspect is without merit and is accordingly
dismissed.
