Raphael Mwale Mulenga and Anor v CNMC Luanshya Copper Mines Pls (COMP/IRC/ND/82/2020) [2024] ZMHC 253 (9 December 2024)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT NDOLA (Civil Jurisdiction) COMP/ IRC /ND/ 82 / 2020 BETWEEN: QURT INDUSTRIAL/ LA . UR f'.11 llr.'1(\'.. J __ • RAPHAEL MWALE MULE .. [, C -~ COMPLAINANT CHARLES MUMBI SEAL 1 COMPLAINANT AND CNMC LUANSHYA COPPER MINES PLC RESPONDENT Before: Hon. Lady Justice Dr. Winnie Sithole Mwenda at Ndola this 9th day of December, 2024. For the Complainants: Mr. R. Mandona of Messrs. Chilupe & Permanent Chambers For the Respondent: Mrs. S . M. Kalikeka of Messrs. William Nyirenda & Company JUDGMENT Cases referred to: 1. Annard Chibuye v. Zambia Airways ( 1985) ZR 4 (S. C). 2. Dennis Sakala and Others v. Zambia Breweries Plc., CAZ Appeal No. 121 / 2022. 3 . Emporium Fresh Foods t/ a Food Lovers Market and Another v. Kapya Chisanga, CAZ Appeal No . 44/ 2021 . 4. Lusaka City Council v. Mumba and Others (1976) Z. R. 53 (H. C.). Stockdale v. The Woodpecker Inn Limited and Spooner (1967) Z. R. 128. 5. 6. Christopher Kabwe Mwenya v. Kalumbila Minerals Limited, CAZ Appeal No. 247/ 2021. 7. Pius Chilufya Kasolo v. ZCCM Investments Holdings Plc, CAZ Appeal No. 185/ 2022. 8 . Kasalwe Nkalamo COMP/ 411 / 2016. and Others v. National Breweries Plc. )I J2 9. 10. Frida Kabaso Phiri (Sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo, SCZ Appeal No. 04/ 2012. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited, CAZ Appeal No. 129/ 2017. 11. Attorney General v. Richard Jackson Phiri (1988 - 1989) Z. R. 121 (S. C.). 12. Sybron Corporation v. Rochem Limited (1984) BCLC 549. 13. Hodgson v. Amcor [2012} VSC 94. 14. Chimanga Changa Limited v. Stephen Chipango Ng'ombe (2010) 1 Z. R. (S. C.). 15. Bell v. Lever Brothers Limited (1932)AC 161 (HL). 16. Liswaniso Sitali and Others v. Mopani Copper Mines (2014) Z. R. 176 (S. C.). 17. Nchindika Nankolongo v. Zambia National Building Society, CAZ Appeal No. 287/ 2022. 18. Lumwana Mining Company Limited v. Zebed Mwiche and Others, SCZ Appeal No. 107/ 2014. 19. Sydney Ngoma v. National Pension Scheme Authority, CAZ Appeal No . 228/2022. 20. Newston Zulu v. Metal Fabricators of Zambia Limited, SCZ Appeal No. 70/ 2015. 21. African Banking Corporation Zambia v. Lazarous Muntente, CAZ Appeal No. 51 of 2021. 22. Supabets Sports Betting v. Batuke Kalimukwa, SCZ Selected Judgment No. 27/ 2019. 23. Konkola Copper Mines Plc v. Hendrix Mulenga Chileshe, SCZ Appeal No. 94/2015. 24. Care International Zambia Limited v. Misheck Tembo, SCZ Selected Judgment No. 56 of 2018. 25. AEL Zambia Plc v. Swift Simwinwa, SCZ Appeal No. 223/2015. 26. Kitwe City Council v. William Ng'uni (2005) Z. R. 57 (S. C.). 27. Emmanuel Zgambo v. The University of Zambia, CAZ Appeal No. 132/2022. 28. Zambia National Commercial Bank v. Evans Hampopwe, SCZ Appeal No. 188/ 2008. 29. Simbarashe Jonga v. Sunda International and Homepro Enterprise Zambia Limited, COMP I IRCLK/ 41 0. Legislation referred to: 1. The Employment Code Act, No. 3 of 2019. 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. J3 Authoritative texts referred to: 1. Mwenda, Winnie Sithole and Chungu, Chanda 'A Comprehensive Guide to Employment Law in Zambia' (2021) University of Zambia Press. 2 . Chungu, Chanda and Beele, Ernest Muketoi 'Labour Law in Zambia: Second Edition' (2020) Juta. 1. Introduction 1.1 On 6 th October 2020, Raphael Mwale Mulenga ("the 1st Com plain ant") and Charles Mumbi ("the Complainant) (collectively "the Complainants"), filed a Notice of Complaint in this Court against CNMC Luanshya Copper Mines Plc ("the Respondent"), on the ground that they were unfairly and unlawfully dismissed from employment by the Respondent. 1.2 The Complainants seek the following remedies from this Court, namely: (1) An order for reinstatement with full pay and all their entitlements; (2) Payment of all the moneys due to them; (3) Interest on the amount found due and payable to them; (4) Further or other relief the Court may deem fit and expedient. J4 2. Complainant's Affidavit in Support of Notice of Complainant 2.1 In the Affidavit 1n Support of Notice of Complainant sworn by the Complainants, they alleged that they were both employed by the Respondent on 22 nd August, 2011 as Compression Operator and 13th February, 2019 as General Worker, respectively. 2.2 The Complainants further alleged that, on 7 th November 2019, without any reasonable cause, the Respondent accused them of theft of 2,931 kilograms of copper cathodes valued at K226, 711.30. 2.3 They deposed that they were detained by the Mpatamatu Police Station in Luanshya for three days pending investigations. They were subsequently cleared of all charges by the Police as gleaned from the Report marked "RMM2" in the Affidavit in Support of Notice of Complaint. 2.4 That, despite being cleared by the Police, the Respondent proceeded to summarily dismiss them for the offence of dishonest conduct. JS 2.5 They further asserted that, they were never charged with any offence or given an opportunity to be heard prior to their dismissal. 2.6 The Complainants stated that the Respondent breached their terms and conditions of employment and the rules of natural justice that justified an award of damages or reinstatement. 3. Respondent's Answer and Affidavit in Support 3.1 The Respondent filed its Answer on 24 th November 2020, wherein it admitted that the Complainants were summarily dismissed but denied the allegation that there was a breach of natural justice and/ or the terms and conditions of employment. 3.2 According to the Respondent, the Complainants were subjected to due investigations and a full-length disciplinary process in terms of the Respondent's disciplinary and grievance procedure. 3.3 The Respondent stated that the summary dismissal for dishonest misconduct was neither unfair nor unlawful. > J6 3.4 The Affidavit in Support of Answer was deposed to by Loti Chola, the Vice Manager, Human Resources, of the Respondent company. 3.5 The Respondent avowed that the Complainants were not accused of theft but required to give statements as part of the Police investigations. 3.6 That the Respondent was well within its rights to report the matter to the Police for investigation of a criminal offence following theft of the copper cathodes. The Respondent agreed that the Complainants were subsequently exonerated by the Police following their investigations. 3. 7 The deponent asserted that, despite being absolved by the Police, the Complainants were not absolved of the breach of trust and confidence occasioned by their failure to report the theft to the relevant officers in the Respondent company. 3.8 That, the Complainants agreed and admitted to witnessing the theft and failing to report it, which amounted to dishonest conduct. .. J7 3. 9 The Respondent denied the allegation that the Complainants wete not accorded any opportunity to be heard as the full disciplinary process was carried out. 3.10 According to the Respondent, both Complainants were charged in the form of a Complaint Form and given hearings on 23 rd December 2019. Further, that the outcome of the hearing was availed to the Complainants who were summarily dismissed. Both Complainants appealed to the Manager, but had their appeals dismissed. 3. 11 The Complainants lodged a further appeal with the Respondent's Chief Executive Officer which was equally dismissed, and the summary dismissal was upheld and the Complainants were subsequently paid their terminal benefits in full. 3.12 The deponent concluded by stating that the respective dismissals of the Complainants were neither unfair nor unjust and in line with the Respondent's Disciplinary Code and Grievance Procedure. JS 4. Summary of Evidence 4.1 At trial, the Complainants testified as their own witnesses. They will hereinafter, be referred to as "CWl" and "CW2" respectively. 4.2 CWl testified that he is unemployed and has taken the action against the Respondent who dismissed him. He tabulated his record of employment, confirmation following probation and stated that he served on the Respondent's Conditions of Service and the Collective Agreement on record. 4.3 He stated that on 4 th and 5 th November 2019, he and the 2 nd Complainant noticed anomalies relating to a forklift that was operating late in night, between 23:00 and 01 :00. They saw copper being collected and stolen but declined to assist when asked by the Foreman, a Mr. . Moses Chinyama. 4.4 That the incident was subsequently referred to the Police where he gave a statement on 9 th November 2019 and was subsequently cleared of any wrongdoing. 4.5 CWl testified that following the incident with the Police, he was subsequently subjected to a disciplinary hearing J9 by the Respondent where he was summarily dismissed for dishonest conduct. According to him, dishonest conduct is limited to theft or benefitting from the theft. 4.6 It was his evidence that, the Respondent did not follow the time permitted for investigations nor the time for responding to a charge. That, the charge was not explained to him and he was not given a chance to accept or deny the charge. Further, that his appeal was dismissed and he was given his terminal benefits. He asked the Court to reinstate him and that he be paid compensation. 4.7 During cross-examination, CWl confirmed that copper cathodes were stolen and that he did not take part in the theft which was investigated by the Police. He confirmed the contents of the Complaint Form but asserted that he was not warned of the charge. He further confirmed that he attended a disciplinary hearing. 4.8 He admitted that theft must be reported to the Company according to laid down procedure. He stated that he thought another staff member from the relevant section would report the offence. .. JlO 4.9 In re-examination, CWl stated that it was not every person who reports issues and this should be left to the relevant party in the concerned section. 4.10 CW2 then took the stand and testified that he served the Respondent for eight months before his dismissal. He confirmed that his con tract was subject to the Collective Agreement but testified that he never had sight of the Disciplinary Code. It was his further evidence that his dismissal was not in accordance with the Disciplinary Code. He stated that he did not report the issue of theft because he was threatened by the Foreman. 4.11 CW2 went on to add that he was never presented with a formal complaint and his dismissal was not correct. He averred that he was not paid his dues and sought the Court's assistance to get justice. 4. 12 During cross-examination, CW2 confirmed that copper cathodes were stolen but he did not take part in it and had no power to report the matter. 4 . 13 He confirmed that he saw people lifting and stealing the copper cathodes and agreed that as an employee, he needed to protect the interests of his employer. CW2 Jll averred that if he was in a higher position, he would have reported the theft. It was his further evidence that he was presented with a charge of dishonest conduct and that he was summarily dismissed. 4.14 In re-examination, he averred that he was dismissed for a charge that does not fall within the scope of Clause 4.4.1 (e) of the Respondent's Disciplinary Code. 4.15 That marked the close of the Complainant's case. 4.16 The Respondent's Witness, Loti Chola, shall be referred to as "RW". She testified that she was responsible for recruitment, training and development, performance management and maintaining discipline 1n the Respondent company. 4.17 It was RW's evidence that on 5 th November 2019, a guard on duty noticed tyre tracks and footprints which raised susp1c1on. The guard reported the matter to his supervisor. This led to the two Complainants being reported to the Police. 4.18 The Respondent carried out its own investigations and then charged them for dishonest conduct for failing to J12 report that they witnessed theft of copper cathodes as management considered the act to be a breach of trust. 4. 19 She admitted that dishonest conduct was not a dismissible offence 1n terms of the Respondent's Disciplinary Code, but stated that the Disciplinary Code does permit the imposing of a stiffer or lesser penalty or sanction depending on the gravity of the offence. 4 .20 RW testified that the minutes of the disciplinary hearing held for the Complainants show that they were given a chance to be heard. Further, that the Complainants were dismissed and informed of their right to appeal. The Complainants appealed and their appeals were dismissed and they were paid all terminal benefits due to them. 4.21 During cross-examination, RW confirmed the Complainants' salaries and stated that they were entitled to housing allowance, Christmas bonus and Workers ' Supplementary Cost. That, apart from housing allowance , the allowances only apply when an employee works and renders services. She testified that the employees were entitled to other allowances such as Jl3 standby allowance, shift differential, transport allowance and lunch allowance. 4.22 According to RW, investigations into the incident commenced immediately and the Complainants were charged thereafter. She stated that not all offences can be captured in the Disciplinary Code and that the penalty for dishonest conduct is final written warning and not summary dismissal for the first offence. According to RW, the key issue relating to the Complainants was not their involvement in the theft, but their failure to report the incident. 4.23 In re-examination, RW clarified that the Disciplinary Code permits a more onerous or reduced sanction depending on the gravity of the offence and the circumstances of the case. 4.24 That marked the close of the Respondent's case and end of trial. 5. Findings of Fact Undisputed Findings of Fact 5.1 The Complainants were employed by the Respondent as Compression Operator and General Worker, respectively. J17 criminal trial cannot be ref erred to and taken note of in a civil trial. This is so whether the criminal trial resulted in a conviction, as was the case in the Kabwe Transport case, or in an acquittal. We agree that for the reasons stated in that case, the acquittal of the present appellant in the criminal matter was quite properly not taken into account in the civil case now before us." 8.4 The Supreme Court in the above case was clear that the reasons for a decision in criminal matters should not be taken into account in a civil case. The rationale for this is multifaceted. Firstly, criminal proceedings are prosecuted by the State whilst civil proceedings are carried out by private parties or entities. 8. 5 Secondly, the purpose of criminal proceedings are generally to impose a criminal punishment on an off ender, whilst civil proceedings are targeted at compensation and/ or remedying the wrong done. As the two proceedings are at cross-purposes, it would be irrational to preclude the determination of a civil matter on the basis of a decision in criminal proceedings. 8. 6 Lastly, the burden of proof in criminal matters is beyond reasonable doubt, whilst the burden in civil proceedings is on a balance of probabilities. Therefore, since the standard of proof to impugn guilt in criminal proceedings J14 5.2 The Complainants witnessed the theft of copper cathodes, which they refused to participate 1n, but did not report to the Respondent. 5.3 Following the theft of copper cathodes, the Respondent reported the matter to the Police who cleared the Complainants of theft. 5.4 The Complainants were summarily dismissed for dishonest conduct. Disputed Findings of Fact 5.5 The Complainants deny that they were charged or given any opportunity to be heard. 5.6 The Respondent, on the other hand, asserts that the Complainants were charged, given an opportunity to be heard and that the full disciplinary process was followed. 5.7 The Complainants aver that the Respondent did not follow the correct disciplinary process. 5.8 The Complainants assert that the penalty for dishonest conduct was a final written warning but the Respondent contend that the disciplinary committee can impose a stricter penalty depending on the gravity of the offence and circumstances. J15 6. Issues for Determination Having carefully examined the Affidavits and documents filed by the Complainant and the Respondent in support and defence of their respective cases, respectively, and identified the undisputed and disputed facts herein, the issues for determination, in my view, are the following: (a) Could the Respondent commence a disciplinary process despite the Complainants being exonerated by the Police? (b)Were the Complainants charged and/or given an opportunity to be heard? (c) Did the Respondent establish a sufficient substratum of facts to support the summary dismissal of the Complainants based on dishonest conduct? (d)Could the Respondent dismiss the Complainants for dishonest conduct when the prescribed penalty was a final written warning? (e) Were the Complainants wrongfully and unfairly dismissed, and if so , entitled to reinstatement? J16 (f) Are the Complainants entitled to the payment of any monies due to them? 7. Legal Arguments Both the Complainant and Respondent submitted written submissions for which, I am indebted. Both sets of submissions have been considered in the delivery of this Judgment. 8. Analysis and Court's Determination Whether the Respondent could commence a disciplinary process against the Complainants despite the latter being exonerated by the Police 8.1 The first issue in contention that has to be determined is whether the Respondent could initiate disciplinary proceedings against the Complainants notwithstanding the Police clearing and exonerating them of theft. 8.2 Under Zambian law, criminal and civil proceedings are separate and distinct processes. As such, decisions in criminal proceedings have no bearing on civil proceedings. 8.3 In Annard Chibuye v. Zambia Airways,1 the Supreme Court held that: " ... it is now settled, following our decision in Kabwe Transport Limited v. Press Transport (1975) Ltd, that the judgment in a J18 1s of a much higher standard, decisions in criminal proceedings have no bearing on civil proceedings. 8. 7 Since disciplinary proceedings are civil matters, nothing precluded the Respondent from instituting investigations and disciplinary proceedings against the Complainants notwithstanding the clearance by the Police. Were the Complainants charged and/or given an opportunity to be heard? 8.8 Under this head, it is necessary to emphasise the general steps required for a valid disciplinary process in this jurisdiction. 8.9 A disciplinary process 1s usually initiated by an allegation of misconduct or poor performance against an employee. As a general rule , the allegation should be investigated adequately and sufficiently to establish if there is some validity or substance to the allegation. The investigation is crucial as any subsequent disciplinary action taken must be supported by the facts and evidence to be justified. An investigation may not be carried out where an employee admits the offence. J19 8.10 An employer is permitted to suspend the employee pending investigations if the same is permitted by the employer's disciplinary rules. 8.11 Once the investigation has been carried out and there is some evidence of some wrongdoing by the employee, he or she must be charged with an offence. There is no prescribed form for a charge, but the same must be in accordance with the disciplinary rules. This notwithstanding, the charge must have sufficient detail and give adequate particulars of the offence to enable the accused employee to respond adequately. 8.12 It is vital that, following the charge, before any decision is made to discipline or dismiss the employee for misconduct and/ or poor performance, or indeed before any type of termination, including termination for ill health, operational requirements or redundancy, the employee must be given an opportunity to be heard and make representations. The Court of Appeal in Dennis Sakala and Others v. Zambia Breweries Plc2 held that: "It is clear from the foregoing that there is a pre-requisite for an employee to be heard on whatever charges may be levelled against him for the subsequent decision rendered to be considered fair. " J20 8.13 Giving of an opportunity to be heard on a charge is a mandatory requirement in terms of section 52(3) of the Employment Code Act which states that: the contract of "(3) An employer shall not employment of an employee for reasons related to an employee's conduct or performance, before the employee is accorded an opportunity to be heard." terminate 8.14 The mandatory nature of the opportunity to be heard was confirmed by the Court of Appeal in Emporium Fresh Foods t/a as Food Lovers Market and Another v. Kapya Chisanga3 where it was held that: "Although the Appellants have argued that section 50(i) (fJ is independent of section 52(3), we find no substance in the argument because both sections occur under division 3 . 3 of the Code which deals with suspension and termination of contract of employment of which summary dismissal is a way of terminating a contract of employment. The fact that section 52(3) prohibits termination of contract of employment by an employer for reasons relating to conduct or performance of an employee without giving the employee an opportunity the importance of adhering to the rules of natural justice. In tum, rules of natural iustice are the employers ' disciplinary rules as envisaged by section 50 (i) of the Code. Summary dismissal should therefore, be understood to refer to the power bestowed upon the employer to instantly dismiss an employee following adherence to the disciplinary process as set out in the employer's disciplinary code or rules. Once this procedure has been followed there is no requirement for the employer to give notice or payment in lieu of notice." (Emphasis, to be heard re-enforces incorporated in the Court's) J21 8.15 Based on the above authority, the requirement to give an employee an opportunity to be heard prior to dismissal, including summary dismissal, is mandatory even in situations where there is clear evidence of wrongdoing, except where an employee admits the offence. 8.16 An opportunity to be heard is where an employee accused of committing an offence or facing no-fault termination, is given an opportunity to give his side of the story or be heard in a bid to save his employment and avoid being dismissed or terminated. The opportunity to be heard is critical and accords with the principles of natural justice, particularly the audi alteram partem rule that makes it clear that a person who is due to face or endure adverse action should be given an opportunity to be heard. 8.17 Subject to an employee's contract of employment, the opportunity to be heard can take any form. When the opportunity is given, it is mandatory for the employer to take into consideration the statement and views of the employee before making a decision on his dismissal or termination. J22 8.18 I wish to also point out that the giving of an opportunity to be heard is not a simple "tick-box" exercise that an employer carries out merely to comply with section 52(3) of the Employment Code Act. The content of the employee's submission when given an opportunity to be heard must be considered and there must be evidence that an employer applied its mind to what the employee had to say. 8.19 Once the employee has been given an opportunity to be heard on a valid charge , the disciplinary committee or relevant decision maker must take the appropriate disciplinary measure based on the evidence. When the decision to dismiss is made, there must be a sufficient substratum of facts establishing that the employee committed the offence and dismissal was fair and reasonable in the circumstances. 8.20 It is important to note that disciplinary hearings must be minuted. Minutes are a record of deliberations that are crucial in chronicling the proceedings . They play a crucial role in determining the series of events and J23 avoids conjecture. In Lusaka City Council v. Mumba and Others,4 it was held thus: "I must say that without the Council's minutes being placed before me this Court would be slow to speculate as to what went on." 8.21 In addition to providing a record and preventing speculation, minutes allow the Court to be satisfied that the employer exercised its disciplinary power correctly and dispensed a penalty fairly and reasonably. 8.22 Having outlined the disciplinary procedure above, the record shows that the Complainants were duly charged as gleaned from the exhibits marked "LN4" and "LNS". As indicated earlier, there is no prescribed form for a charge and the Complaint Form used sufficed, particularly as it complied with the Respondent's Disciplinary Code and Grievance Procedure. 8.23 Further, the record of the disciplinary hearings shows that both Complainants were given a chance to respond to the charge. They admitted to witnessing the offence in question and failing to report the same. J24 8.24 In the circumstances, I have no hesitation in holding that the Respondent followed the laid down disciplinary procedure and complied with its own disciplinary rules. Did the Respondent establish a sufficient substratum of facts to support the summary dismissal of the Complainants based on dishonest conduct? 8.25 Section 52 (1) and (2) of the Employment Code Act provides that: "(1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons termination of the employee's contract of employment; and the employee for the to (2) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking." 8.26 The above provisions mandate an employer who initiates dismissal or termination of employment to give a valid reason related to either the employee's misconduct or capacity (ill-health or poor performance), or the employer's operational requirements or redundancy. 8.27 For the avoidance of doubt and for the guidance of employers in Zambia, it is important to provide a brief overview of the nature and scope of the valid reasons J25 provided for 1n section 52(2) of the Employment Code Act. 8.28 An employee's conduct relates to unacceptable behaviour that an employer is not expected to tolerate, as it has impacted on his/her employment relationship in such a way that his/her actions have resulted in the breakdown or erosion of the trust and respect relationship between him/her and the employer. According to the Court in Stockdale v. The Woodpecker Inn Limited and Spooner, 5 dismissal is justified where the conduct of the employee amounts to gross misconduct and/or falls short of the faithful discharge of his/her duties and/ or that undermines the trust, respect and confidence in the employment relationship. 8.29 The employee's capacity relates to his/her inability to perform his/her duties. Capacity can relate to either poor performance or ill-health. Poor performance occurs where an employee carries out his duties below the expected standards established for a role. Standards for a role are either established by statute, the trade and profession that an employee operates in and his/her J26 contract of employment. Dismissal based on poor performance 1s justified as every employee warrants competence to carry out his duties to the required standards and any failure to do so equally undermines the trust, respect and confidence inherent in all employment relationships 8.30 In relation to termination for ill-health, the Court of Appeal in Christopher Kabwe Mwenya v. Kalumbila Minerals Limited, 6 held that it is justified where an employee is unable to carry out his core functions or inherent requirements of the job due to an injury, accident or illness. 8.31 In the case of Pius Chilufya Kasolo v. ZCCM Investments Holdings Pie 7 , the Court of Appeal held that termination for operational requirements is based on a bonafide commercial reason, linked to the employer's economic, structural, technological or similar needs. The definition of operational requirements was dealt with in Kasalwe Nkalamo and Others v. National Breweries Ple 8 , where it was held that: "The reason given is that of operational requirements of the employer. The employer must satisfy the Court that laying off its J27 staff for operational requirements is for business purposes and in order to save its business from collapsing. When Companies face certain economic facts, inevitable change occurs and these are mainly attributed to downturn in production, sales or economy, introduction of technology, business relocation, business mergers or restructuring. All these will entail that certain employees would be affected negatively. It is therefore, not the Court's duty to generally interfere with the bona fide powers of management of company to change direction of their companies affected by the factors I have alluded to. If a company gives genuine reasons for change of staff because of operational requirements, then the Courts would not be seen to interfere and impose on an establishment which will fail to meet its obligation of paying to employees." salaries and statutory payments connected (Underlining by the Court for emphasis only) 8.32 Significantly, termination for operational requirements is permitted to give latitude to the employer to either save costs, become more efficient or for any other justified and genuine goal. Under operational requirements, the employee's position or services are not abolished but there is a need to bring the contract to an end for any valid reason linked to commercial or business purpose, that must be made in good faith and substantiated. 8.33 Lastly, redundancy is also a form of operational requirement but differs as it is only triggered when one of the redundancy situations in section 55 ( 1) of the Employment Code occurs, where the position of the J28 employee becomes redundant or the need for his services ceases (See Frida Kabaso Phiri (Sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo9 ), or where his/her fundamental terms of employment are adversely varied, without his/her consent. 8.34 Once a valid reason has been identified, the law requires more from the employer as the giving of a valid reason does not suffice. In addition to the giving of a valid reason, the same must be substantiated, that is to say, supported by the facts, evidence and circumstances and be preceded by giving the employee an opportunity to be heard. This is what validates any reason given. I am fortified in this regard by the Court of Appeal case of Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited 10 where it was held as follows: for reasons "Section 36 of the Act has placed a requirement on an employer to terminating an employee's employment. give Employers are no longer at liberty to invoke a termination clause and give notice without assigning reasons for the termination. What is of critical importance to note, however, is that the reason or reasons given must be substantiated. We recall that our duty as a court is to ensure that the rules of natural justice were complied with and to examine whether there was a sufficient substratum of facts to support the invocation of disciplinary J29 procedures. In other words, we must be satisfied that there was no mala fides on the part of the employer. The basis of this is that the employee who is a weaker party is protected from being dismissed at the whims of the employer without any justifiable reason." 8.35 The Court of Appeal underscored the need for employers to not only give a valid reason prior to dismissal or termination, but also to ensure that the reason is justified and substantiated, that is, supported by the relevant facts, evidence and circumstances. 8.36 Further, the valid reason must not only be substantiated but preceded by natural justice in that an employee should be given an opportunity to be heard pnor to bringing his contract of employment to an end. The Court of Appeal in Sarah Aliza Vekhnik ( supra) was clear that: "The right to a fair hearing requires that individuals should not be penalised by decisions affecting legitimate expectation unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case" their rights or 8.37 The opportunity to be heard which is required before any dismissal or termination, must be meaningful and the employer must demonstrate that it took into J30 consideration the employee's submissions before making its decision. 8.38 The giving of valid, substantiated reasons combined with the rules of natural justice, protects employees from being dismissed on impermissible grounds without any basis. 8.39 I wish to point out the Supreme Court's guidance in Attorney General v. Richard Jackson Phiri, 11 where it was held that: "We agree that once the correct procedures have been followed, to support in fact facts established the only question which can arise for the consideration of the court, based on the facts of the case, would be whether there the disciplinary were measures since it is obvious that any exercise of powers will be regarded as bad if there is no substratum of fact to support the same. Quite clearly, if there is no evidence to sustain charges levelled in disciplinary proceedings, injustice would be visited upon the party concerned if the court could not then review the validity of the exercise of such powers simply because the disciplinary authority went through the proper motions and followed the correct procedures." 8. 40 Based on the above, this Court's role is not to sit as in an appellate capacity, but is limited to analysing whether or not there were any facts and evidence to sustain the dismissal of the employee, 1n this case, the Complainants, and if the employer, 1n this case the J31 Respondent, arrived at the decision fairly and reasonably. 8.41 Put differently, this Court's role is to examine the facts to establish if the decision to dismiss or terminate was validly exercised based on the existence of specific facts that formed the basis for dismissal. In the circumstances, the question that arises is whether or not, the failure to report the theft by the Complainants amounted to a dishonest conduct that justified the dismissal. 8.42 The traditional approach as espoused in the case of Sybron Corporation v. Rochem Limited 12 was that an employee had a duty to report the misdeeds of others where the employee was 1n a senior position or supervisory role to the employees committing the wrongful conduct. 8.43 According to the learned Authors Winnie Sithole Mwenda and Chanda Chungu in their book, A Comprehensive Guide to Employment Law in Zambia at page 61: "This duty applied to senior employees, who were senior enough to realise that what they were doing was wrong and the manager was responsible for reporting on the activities of his subordinates each month ... It would also seem that the employee does not have J32 a duty to report the wrongdoings of other employees, unless the employee supervises the employee who commits the offence. " (Emphasis , the Court's) 8.44 It would thus , appear that the duty to report the misconduct and misdeed of other employees was limited to managers or supervisors who had the responsibility to report the activities of those they supervised. 8.45 This was developed further by the Court in Hodgson v Amcor 13 where it was held that: " ... There is no general duty imposed on employees to report misconduct of fellow employees, except in certain circumstances when this is required under a contract of employment, either expressly or impliedly. The ex ception may arise by implication from the position occupied by the employee in the employer's organisation. A person in a managerial position, for example, cannot in the usual case stand by and allow a fell ow employee to help themselves to the company's assets and do nothing about it, without the mutual duty employer. " (Emphasis, the Court's) breaching owed the to 8.46 The above case confirms that there is no general duty on an employee to report the misconduct of a fellow employee except where he is a management employee and/ or required to do so under the express or implied terms of the contract of employment. 8.4 7 In the circumstances , the Complainants were neither senior management employees nor was the duty to report J33 misconduct of other employees an express term of their contracts of employment. 8.48 The 1st Complainant claimed that he did not have a duty to report as that lay with another officer in another section. The 2 n d Complainant also claimed that he did not know who to report to and would have done so if he was a more senior employee. However, both employees admitted during cross-examination that they had a duty to report to the Respondent as this is linked to the duty to protect the Respondent's interests. 8. 49 I am of the firm view that reporting misconduct of employees or events that one has witnessed is an implied term of the contract. This is because every employee owes a duty of utmost good faith, loyalty and fidelity to his employer as underscored by the Supreme Court in Chimanga Changa Limited v. Stephen Chipango Ng'ombe 14 where it was held that: "An employment relationship is anchored on trust and once such trust is eroded, the very foundation of the relationship weakens. " 8.50 Further, every employee has a duty to protect his employer's property and is obliged not to act in any manner that is inconsistent with the duty of loyalty and J34 fidelity. This is supported by the learned authors Chanda Chungu and Ernest Muketoi Beele in their book, Labour Law in Zambia: 2 nd Edition at page 25. 8.51 In Bell v. Lever Brothers Limited, 15 Lord Atkin, on behalf of the House of Lords, held that: "It is said that there is a contractual duty of the servant to disclose his past faults. I agree that the duty in the servant to protect his master's property may involve the duty to report a fell ow servant whom he knows to be wrongfully dealing with that property. The servant owes a duty not to steal, but having stolen, is there a superadded duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from the well-established usage of mankind and would be to create obligations entirely outside the normal contemplation of the parties concerned. " 8.52 Based on the authoritative decision above, an employee has a duty to report the misdeeds of fellow employees or others who are committing a wrong that would be detrimental to the employer's interests. The Court reasoned that because an employee has a duty to protect his employer's property, this may involve the duty to report a fellow employee whom he knows to be wrongfully dealing with that property. 8.53 In casu, both Complainants admitted that theft must be reported to the Company according to laid down J35 procedure and during the disciplinary hearing and trial, they admitted that they should have reported the misconduct to the Company, especially to the security department. 8.54 It was thus, imperative on the employees upon becoming aware of the theft, to take steps to have it addressed by reporting it to the appropriate official. Their failure to do so brings into question their loyalty and fidelity to the Respondent and justifiably raises doubts as to whether their employer could trust them going forward. 8.55 Based on the foregoing, I am of the view that the Complainants breached the implied terms of good faith, loyalty and fidelity and protection of their employer's interests and property by failing to report misconduct in relation to the copper cathodes. This justifies summary dismissal based on section 50 (l)(a) of the Employment Code Act which permits dismissal for gross misconduct inconsistent with the express or implied conditions of the contract of employment. 8.56 At the core of every employment relationship is trust, and when this is eroded, either party to the contract of J36 employment is justified 1n bringing the contract of employment to an end. 8.57 The failure to report the matter to the Respondent, despite witnessing the event and being aware of the need to protect the Respondent's interest and property, amounts to dishonest conduct. I agree with the decision in Liswaniso Si tali and Others v. Mopani Copper Mines 16 cited by the Respondent, where the Supreme Court held that: "No employer can be expected to keep a dishonest employee in his employment" 8. 58 I am satisfied that the conduct in question was dishonest and undermined the Respondent's trust, respect and confidence in the Complainants to carry out their duties. 8.59 The Court of Appeal in Nchindika Nankolongo v. Zambia National Building Society 17 held that:- " ... It would be unfair to compel an employer to retain an employee in whom it has justifiably lost all confidence." 8.60 The Court of Appeal held that an employer can dismiss an employee in whom it has lost confidence. In the circumstances, the Respondent as employer could not be expected to trust or have confidence in employees who J37 were aware of a wrong that would prejudice their employer but failed to report the matter so that it could be resolved. 8.61 The Complainants' conduct equally amounted to a failure to faithfully discharge their duties. In the case of Stockdale (supra) the Court held that: " .. . If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which iustif;,es immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is preiudicial or is likely to be prefudicial to the interests or the reputation of the master ... " (Emphasis, the Court's) 8.62 The Court above was clear that where an employee behaves in a manner that is prejudicial to his employer's interests, this amounts to unfaithful discharge of duty and justifies summary dismissal. 8.63 In the circumstances, I am of the view that there was a sufficient substratum of facts, evidence and circumstances that justified dismissal considering the Complainants' breach of their implied duties and failure to faithfully discharge their duty to report wrongs that undermined the trust and confidence in their abilities to act in the employer's interest. In my view, it was fair and J38 reasonable for the Respondent to effect dismissal in the circumstances. Could the Respondent dismiss the Complainants for dishonest conduct when the prescribed penalty was a final written warning? 8.64 A critical issue 1n contention is whether dismissal was justified given that the Respondent's Disciplinary Code mandates a penalty of a final written warning for first offenders of dishonest conduct. The Supreme Court in Lumwana Mining Company Limited v. Zebed Mwiche and Others 18 held as followed: "In this case, as rightly put by the court below, although the amended charge farm captured the offence as a "Category A ( 13} serious offence as determined by the Acting Managing Director", the offence itself was not specified and in Appendix 1, Category A is simply stated as ''Any other serious offence (at the (13) discretion of the Managing Director}". Now, the details of the charges referred to the receiving, and distribution or forwarding of the e-mail titled "Poor Boy" which was of a sexually explicit nature involving young children having sex. The appellant should have stated whether the serious offence was the receiving or forwarding or the distribution of pornographic, sexually explicit material by use of the company IT network. In our view, the court below was on firm ground when it found that the respondents were dismissed for an undefined offence and that the dismissals were wrongful and unlawful." 8.65 Based on the guidance above, an employer is only permitted to dismiss an employee who commits an J39 offence that warrants dismissal In line with its Disciplinary Code. Further, In Sydney Ngoma v. National Pension Scheme Authority, 19 the Court of Appeal held that where an employee has been charged with an offence, it will only be fair and lawful to dismiss where the employee is guilty of all the fundamental and key ingredients of the offence. 8.66 Clause 4.4-1 (e) of the Respondent's Disciplinary Code defines "Dishonest Conduct" as follows: (e) Dishonest Conduct; Any deliberate act or failure to act with the intention of obtaining an unauthorised benefit. 8.67 Based on the above definition and elements of the offence, it would appear that the Complainants are prima facie not guilty as there was no deliberate act or intention to obtain an unauthorised benefit. 8.68 The Respondent on the other hand argued that the Disciplinary Code permits the imposition of a stricter penalty depending on the gravity of the offence and circumstances. Clause 1.3 of the Respondent's Disciplinary Code reads as follows: J40 "Since a Code of this nature cannot cover every specific case that will occur, officials must use their discretion within the framework and in accordance with the spirit of the Code.,, 8. 69 In my considered view, the above provision gives sufficient latitude to the disciplinary committee to exercise its discretion to increase or reduce a penalty and determine if an employee committed a dismissible offence, depending on the circumstances relating to the employee's behaviour. As such, considering the serious breach of contract and gross misconduct by the Complainants in not reporting the theft, the Respondent was justified in imposing the penalty of dismissal. 8.70 Further, the Supreme Court in Newston Zulu v. Metal Fabricators of Zambia Limited20 ' dealt with an employee who was dismissed for abuse of office which was not prescribed in the Disciplinary Code. The Supreme Court held that notwithstanding the exclusion of the offence from the Disciplinary Code, nothing stopped the employer from dismissing the employee for breaching an implied term of his contract of employment. The Supreme Court held that: J41 "In dealing with the issue, the learned trial Court observed that what the appellant did amounted to an offence and as such, the respondent was justified in dismissing him. We agree because the case was not only abuse of offi,ce but a clear case of misconduct bordering on dishonest behaviour. In his heads of argument, counsel for the respondent ref erred us to paragraph 691 at page 313 of the 23rd Edition of Chitty on Contracts where the learned authors have asserted that: "There are so many cases in which the law implies a term in a contract though it is not expressly included by the parties". This assertion can also be found at paragraph 13-001 on page 643 of the 28th Edition of Chitty on Contracts. This being the law, we are satisfied that the lower Court was on firm ground when it upheld the dismissal of the appellant even when the offence he committed was not provided for in the disciplinary code of the respondent" (Emphasis , the Court's) 8. 71 The Supreme Court held that if misconduct is so serious to justify dismissal, an employer can dismiss the employee even if the offence is not listed or does not attract dismissal in terms of its disciplinary rules. Whilst it is desirable for all offences to be tabulated in the disciplinary code , it is not practically possible to capture each offence and every circumstance. Leeway must be given to employers to impose stricter penalties where a gross misconduct that justifies dismissal occurs in the circumstances. No employer should be made to tolerate an employee who has committed a fundamental breach J42 of the express or implied terms of the contract that undermines the trust, respect and confidence embedded in the contract of employment. 8. 72 In the circumstances, I am satisfied that the conduct of the Complainants was dishonest and justified their dismissal. The Respondent correctly excercised its discretion in summarily dismissing the Complainants. Were the Complainants wrongfully and unfairly dismissed, and if so, entitled to reinstatement? 8. 7 3 Before I make a determination on whether or not the Complainants were wrongfully and/or unfairly dismissed, it is important to address the Respondent's contention that the burden of proof lies on the employee to prove that his dismissal was either wrongful or unfair. 8.74 Since the enactment of the Employment Code Act, section 52 (5) now places the burden on the employer to prove that the dismissal was for a valid and fair reason. The Court of Appeal in African Banking Corporation Zambia v. Lazarous Muntente 21 held that: "There was an evidential burden placed by the statute, on the employer to establish and prove on the balance of probabilities that there was a valid reason for terminating or dismissing an employee." J43 8. 75 It is now clear that the traditional common law position has been varied and when there is an allegation of unfair or wrongful dismissal, the onus is on the employer to prove or disprove the allegation and demonstrate that the dismissal was carried out in line with the law and contract of employment. 8. 76 At this juncture, it is important to get a clear understanding of what amounts to wrongful and unfair dismissal. 8.77 The Supreme Court, 1n Supabets Sports Betting v. Batuke Kalimukwa 22 = held that in unfair dismissal the Court is obliged to consider the merits or substance of the dismissal to determine whether the reason given for the dismissal is supported by the relevant facts, while wrongful dismissal looks at the form of the dismissal and refers to dismissing an employee in breach of contractual terms, such as non-compliance with the disciplinary procedure. 8.78 In the case of Konkola Copper Mines Plc. v. Hendrix Mulenga Chileshe, 23 the Supreme Court had the J44 following to say with regard to the difference between 'unfair dismissal' and 'wrongful dismissal': "Unfair dismissal focuses on "why" the dismissal was effected whereas wrongful dismissal focuses on "how" the dismissal was effected. In considering whether the dismissal is wrongful or not, it is the form to be considered rather than the substance ... " 8. 79 Wrongful dismissal is thus dismissal that is contrary to the contract of employment. It is a product of the common law and one at the instance of the employer that is contrary to the terms of employment. 8.80 Taking into consideration the definition of wrongful dismissal by the Supreme Court of Zambia in the cases ref erred to above, the evidence on record shows that the Respondent followed the laid down procedure for discipline 1n its Disciplinary Code and Grievance Procedure and thus the dismissal was not wrongful. 8.81 Unfair dismissal, on the other hand, is dismissal that is contrary to the statute, or based on an invalid reason and/ or unsubstantiated ground and/ or a disciplinary ground. It is a creation of statute. In Care International Zambia Limited v. Misheck Tembo, 24 the Supreme Court was of the view that unfair dismissal is dismissal J45 which is contrary to statute and that the right not to be unfairly dismissed is usually a much more substantial right for the employee. 8.82 With respect to the claim of unfair dismissal, having established that there was a sufficient substratum of facts to justify the Complainants dismissals, I have no hesitation 1n finding that the dismissal of the Complainants was not unfair. The said reason for dismissal was both valid and substantiated, in other words, the dismissal was supported by the facts, evidence and circumstances. 8.83 Further, the fairness of the Complainants' dismissals was magnified by the fact that the Respondent took into consideration their exculpatory statements and acted fairly and reasonably in reaching the decision to dismiss them given their conduct which fell below the standard of faithful discharge of duties and undermined the Respondent's trust and confidence. 8.84 The Complainants have claimed for reinstatement with backpay. The Supreme Court in AEL Zambia Pie v. Swift Simwinwa25 held that: J46 "It is trite law that the remedy of reinstatement is only granted in exceptional cases. The Court must exercise extra care and caution before granting the remedy. The Court must take into account all relevant circumstances of the case including the nature of the allegations that led to the purported dismissal and the nature of the concerned institution and in particular the kind of working environment the employee would be subjected to if reinstated. For example, in a very same organisation it may not be very appropriate to order reinstatement if the employee's estranged working relationship with his or her superiors cannot be mended. 8.85 The Court held that reinstatement is rarely granted and will be awarded sparingly where there are special and compelling reasons such as the manner in which the employee was treated and nature of allegations, size of the entity, the nature of the trade that the employee operates in, whether the party guilty for the dismissal has left the institution, chances of finding alternative employment, whether damages would suffice to compensate and importantly, whether reinstatement is reasonable and justifiable. 8.86 In the rare instances that reinstatement is granted, given that it is in essence an order of specific performance, section 85A of the Industrial and Labour Relations Act permits the grant of any just and equitable remedy which includes backpay, that is, the salaries that the employee J47 would have earned from the date of dismissal to date of reinstatement. 8 .87 An order of backpay when reinstatement is granted was endorsed in Emmanuel Zgambo v. The University of Zambia26 where the Court of Appeal held that: " .. . In those rare circumstances reinstatement is ordered, the employee is entitled to recover the monies withheld during the suspension period. " 8.88 The Court of Appeal confirmed that backpay is an entitlement in the rare circumstances that reinstatement is granted. It should, however, be pointed out that in Kitwe City Council v. William Ng'uni, 27 it was held that an employee cannot receive a salary for a period not worked. However, backpay is a justified exception as it is an equitable remedy that compensates an employee for unfair and/ or wrongful dismissal where an order of reinstatement is made . 8.89 However, in light of the finding that the Complainants ' dismissals were neither wrongful not unfair, the Complainants are not entitled to reinstatement or backpay. • J48 Are the Complainants entitled to the payment of any monies due to them? 8.90 The Complainants' second claim was for the payment of any monies due to them. Before the enactment of the Employment Code Act, the Supreme Court, in Zambia National Commercial Bank v. Evans Hampopwe28 , held that: "Where an employee alleges underpayment of salary, wages or allowances before the Court, the employee has to plead the issue explicitly and lead evidence to prove the allegation." 8. 91 Based on the above and the rules of evidence, an employee who alleges underpayment and/ or salary arrears ought to lead evidence to prove the allegation. 8.92 With the enactment of the Employment Code Act, section 23 mandates all employers to maintain written contracts of employment with critical information relating to the employment as specified in the Second Schedule to the Act. A key provision is the rate of remuneration. For those on oral con tracts, section 18 is clear that the employer must keep a record of employment 1n accordance with section 18. 8 .93 Further, section 71 of the Employment Code Act reads as follows: • J49 "71 . (1) An employer shall keep a record of the wages paid to each employee and of every deduction from the wages and the reason for the deduction. (2) An employer shall, during normal working hours make the record under subsection (1) available for inspection by an authorised officer. 8. 94 The above provision is clear on the fact that the mandate is now on the employer to keep a record of wages paid. Therefore, where an employee raises an allegation of underpayment, the onus is now on the employer to prove that he made all statutory and contractual payments due to the employee in line with his contract based on the record that the employer is mandated to keep. 8. 95 Therefore, just like the altered burden in relation to unfair and wrongful dismissal where the employee must now merely raise the allegation and the employer must prove that the dismissal was fair and lawful, the same applies in relation to underpayment of salary, where the employee must plead the underpayment and extent of payment due and it would be for the employer to prove that the employee was paid what is due to him/her. .. JSO 8.96 Thus, whilst an employee must still plead and make a claim of underpayment with specific particulars, the onus switches to the employer who must prove that the employee was not underpaid. The court will then permit the employee to either agree with or disprove the employer's record of payment. 8. 97 I also wish to point out in relation to a situation where employees acknowledge receipt of their dues and sign a document that they are not entitled to any further relief, such employees are not precluded from bringing claims for wrongful, unfair and/ or unlawful dismissal or asserting that they were not paid in accordance with the law or their contracts of employment. I am in agreement with the holding of the Court in Simbarashe Jonga v. Sunda International and Homepro Enterprise Zambia Limited, 29 where it was held that: " .. . It is clear that the disclaimer was made in the context of payment of separation package. This cannot oust the into whether the to jurisdiction of the court inquire separation itself was done contrary to statute. The relief loss of sought include damages or compensation for employment through an unlawful and wrongful act. In my considered view, a statement made by an employee acknowledging receipt of his separation package cannot stop such an employee from seeking redress for any breach JSl of his statutory rights. " (Underlining by the Court for emphasis only) 8.98 The Court was correct when it held that an employee can still come to court to challenge his dismissal/termination and contest if the payments made to him were made in accordance with his contract and the applicable law. The one exception to the rule above is where the document is a Deed of Mutual Separation and Release or Settlement Agreement where the employee expressly agrees not to take any further legal action. The employee will not be able to challenge his dismissal or payment made to him as he consented to the agreement unless he challenges the agreement on the basis of misrepresentation, mistake, undue influence, duress, fraud, illegality or other valid vitiating factor. 8. 99 The difference in the above two scenarios is that in the first scenario a document or acknowledgment of receipt of termination dues is prepared unilaterally by the employer without input from the employee and thus, the Court is permitted to interrogate the payment made or justifiability of dismissal if raised, even if the document J52 states that the employer has no further recourse. On the other hand, in the second scenario there is a Settlement Agreement which is supposedly a mutually agreed document that becomes a binding contract that can only be set aside based on the vitiating factors outlined above. 8.100 In casu, the Complainants raised the allegation of underpayment and claim for payment of monies due. However, they did not specifically plead the exam sum due to them or how much was underpaid, if any. On this ground alone, the Respondent need not have disproved the allegation as the pleading was imprecise. 8.101 This notwithstanding, the Respondent duly obliged to the allegation by providing evidence that the Complainants were paid their dues. This fact was admitted by the Complainants during trial. 8.102 As a result, the Respondent discharged its burden of proving that it paid what was due to the Complainants. Therefore, the Complainants are not entitled to payment of any monies or any further relief. J53 9. Conclusion and Orders 9.1 In conclusion , the Complainants have failed on their claims for reinstatement and backpay as their dismissals were neither wrongful, unlawful nor unfair. 9.2 The Complainants ' claim for payment of monies due to them has also failed. 9.3 The Complainants claims having failed, they are accordingly, dismissed. 9.4 Each party shall bear its own costs. Dated at Ndola this 9 th day of December 2024. -----~ ------ Winnie Si thole Mwenda (Dr.) JUDI ARy HIGH COURT I -9 DEC 2024 I