MPOFU v DELTA BEVERAGES (PVT) LTD 2014 (2) ZLR 305 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights — right not to be tried again in respect of act for which previously convicted or acquitted (s 70(1)(m)) — such right not applicable to civil proceedings arising out of same act

Criminal procedure — plea — autrefois acquit or autrefois convict — applicability — plea only applies to subsequent criminal proceedings arising out of same facts — not applicable to civil proceedings, including disciplinary proceedings in employment cases

Employment — disciplinary proceedings — offender already acquitted by criminal court on same facts — not a bar to institution of disciplinaryproceedings under code of conduct

Headnote

The applicant and a fellow employee, who were both employed by the respondent, were alleged by the respondent to have committed fraud and forgery in the course of their duties. They were arrested andprosecuted on those charges but at the end of the trial were acquitted. The applicant returned to work but was served with a notice of suspension from work in terms of the respondent's code of conduct. He was then instructed to attend a disciplinary hearing on the same facts on which he had been acquitted by the magistrate. At the hearing, the applicant's legal practitioner immediately argued that it was incompetent for the disciplinary committee to try the applicant for an offence in respect of an act or omission for which he had been previously acquitted on the merits and that for committee to do so would amount to a violation of s 70(1)(m) of the Constitution of Zimbabwe 2013. That provision states that any person accused of an offence has the right not to be tried for anoffence in respect of an act or omission for which he has previously been pardoned or either acquitted or convicted on the merits. The applicant and his legal practitioner then left the hearing and the committee proceeded, in their absence, to find the applicant guilty of the disciplinary offences charged. The applicant then applied for the proceedings to be set aside and the question of whether there had been a breach of s 70(1)(m) referred to the Constitutional Court.

Held, that in terms of s 4 of the Criminal Procedure and Evidence Act [Chapter 9:07], the institution of a criminal action does not preclude a party from instituting a civil action against the same party in the criminal proceedings despite the issues being dealt with in the criminal matter being the same as those in the civil matter. The defences of autrefois acquit or autrefois convict only apply to a second criminal prosecution and not to civil proceedings based on the same facts. An act or omission can result in numerous causes of action: criminal, civil, delictual, etc. The protection afforded in s 70(1)(m) relates to acts or omissions in the same category or of the same nature. Any other interpretation would result in an absurdity, in that it would render civil disputes generally and labour laws specifically dependent on outcomes in criminal prosecutions. This is undesirable in a legal system where the burden of proof is different. A contract of employment arises from the employer/employee relationship. The parties' rights are governed by the Labour Act [Chapter 28:01] and a code of conduct. Proceedings in terms of codes of conduct are civil in nature and are totally permissible in terms of s 4 of the Criminal Procedure and Evidence Act. The application was therefore frivolous and vexatious and would not be referred to the Constitutional Court.