HARARE, JUNE 11, 2013 & FEBRUARY 26, 2015

O. Shava, for the appellant

N.M. Masunda, for the respondent

GARWE JA: The appellant was employed in the capacity of plant foreman in the handling department of the respondent company.  In September 2010 he was charged with “(1) theft or fraud (2) aiding stealing, alternatively and (sic) (3) any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of your contract”.  Following a disciplinary hearing, he was acquitted on the charge of theft and fraud but was convicted of aiding stealing and any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

Dissatisfied, the appellant appealed to the Chief Executive Officer of the respondent.  Having gone through the documents and the evidence, the respondent’s Chief Executive Officer concluded that there was no evidence suggesting that it was the appellant who had made certain alterations on the original gate pass which was to be used to take out the empty plastic bags that formed the basis of the allegations against the appellant.  Notwithstanding this finding, the Chief Executive Officer proceeded to confirm the findings of the disciplinary committee as well as the penalty of dismissal imposed in consequence thereof.

Unhappy with the decision of the Chief Executive Officer, the appellant appealed to the Labour Court.  In essence, the appellant’s ground of appeal was that the disciplinary committee had erred in its assessment of the evidence and that on the evidence he had not aided or abetted the theft of any property.

In its findings, the Labour Court was of the view that the appellant had been correctly found guilty by the disciplinary committee as he had facilitated the taking of the green bags which were not reflected on the gate pass.  Consequently the court dismissed the appeal.

Before this Court, the appellant attacks the finding of the court a quo on the basis that the court grossly misdirected itself on the facts and consequently came to the wrong conclusion.  It is clear from the appellants’ grounds of appeal that, essentially, he is attacking the findings of fact made by the court a quo and, prior to that, by the disciplinary committee.  

The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion.  Barros and Another v Chimponda 1999(1) ZLR 58 SC; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670D.