British American Tobbaco Zimbabwe v Jonathan Chibaya SC 30 /19

“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.”

Introduction

The use of expert evidence may at times become inevitable in a disciplinary hearing. This case shows the circumstances in which expert evidence is acceptable and how courts come to their final judgments when presented with expert evidence. This case also illustrates the extent to which disciplinary cases can become complicated in instances where evidence to be relied on is in the hands of third parties who are not willing to cooperate.

Facts

Money was unlawfully withdrawn from a company account. One instruction to withdraw the money was used twice. This meant that one transaction was legit, and the other one was fraudulent. The company noted that the withdrawal slips used in the fraudulent transaction bore personal details of the respondent. This led to the suspension and subsequent dismissal of the respondent from the employ of the appellant. On appeal, the Works Council which heard the appeal tried to get more evidence from the bank to no avail. It then concluded the case based on a report that had been compiled by a handwriting expert. The NEC appeal forum, as well as the Labour Court, set aside the dismissal noting that the evidence was inadequate. The decision of the Labour Court thus founded the Supreme Court appeal.

Reasoning

The court, as a starting point, had to determine whether on a balance of probabilities a case had been proved against the respondent. The Labour Court had found that the evidence presented had pointed to the involvement of banking staff and not the respondent. The court made use of the authority found in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H), 176 in which the court 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.”

It went to realize that the Labour Courts view was right in that the evidence pointed to the involvement of banking personnel. It was in this regard that the court went on to state that:

“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.”

Own comment

The paragraph above points to the fact that this disciplinary hearing became complicated when the bank failed to avail the necessary evidence as requested by the Works Council. Various possibilities which could not point to the respondent became inevitable. It is therefore advisable that practitioners dealing with disciplinary issues must ensure that they avoid making use of evidence that results in many possibilities of what could have transpired. In Jonathan Chibaya, the burden to prove that the respondent was the culprit became onerous.

The court proceeded to analyse the probative value of the expert evidence presented to it. The most important legal principle that the court relied on was that a court is not compelled to blindly accept evidence simply because it has been presented by an expert. A court is thus duty-bound to make its own inferences. Having made these observations; the court proceeded to conclusively remark as follows:

“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.”

Determination

The appeal was dismissed with costs.

Own Comment

The court’s ruling that the evidence relied on to terminate the employees’ contract was inadequate cannot be condemned. The expert had relied on photocopied documents. This meant that important information had been left out. There was a high chance that the respondent had been wrongfully convicted.

The finding that the court will not blindly follow expert evidence is a warning shot. Practitioners dealing with disciplinary issues must be careful when using expert evidence.  I have seen instances were forensic expert reports as well as financial audit reports have been used as evidence to dismiss employees in a hearing. I would advise those who contemplate using such reports to extensively go through this judgment before making knee jerk decisions to dismiss an employee.

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