MAVANGIRA
JA:
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$2,605.00 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 USD2,605-00 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 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 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 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 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
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 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 Mr Hashiti,
on
behalf of 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
Mr
Gama,
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), 34 C-D (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.” (emphasis added)
However
in cases where not only one inference can be drawn, the court in
Ebrahim
v Pittman NO
1995 (1) ZLR 176 (H), 176, 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.”(emphasis added)
In
Miller
v Minister of Pensions
[1947] 2 All ER 372, 374, 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.”
(emphasis added)
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 0800 hours 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 uncooperative 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 uncooperative 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 cooperate 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 at 569B-C 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.
GARWE
JA: I
agree
GOWORA
JA: I
agree
Mawire
J. T & Associates,
applicant's legal practitioner
Gama
& Partners,
respondent's legal practitioners
