LISWANISO SITALI AND OTHERS v MOPANI COPPER MINES PLC (2004) Z.R.

176 (S,C,)

SUPREME COURT

CHIRWA, AND SILOMBA, JJS AND MUNTHALI, AG.JS

2ND DECEMBER, 2003 AND 3RD JUNE, 2004

(SCZ JUDGMENT No. 19 OF 2004)

Flynote

Evidence – Illegally obtained – Test of admissibility – Relevance to matters in issue – Principle

Headnote

This is an appeal from the judgment of the High Court dismissing the appellant’s claim for a
declaration that their dismissal was null and void.

HELD:

1. The rule governing the admissibility of illegally or unfairly obtained evidence in civil cases, is
the same as that in criminal cases. Namely, the relevant evidence is admissible regardless of the
manner in which it is obtained.

2. In terms of admissibility of evidence, there is no difference in principle between a civil and a

3. No employer can be expected to keep a dishonest employee in his employment.

Cases referred to:

1. Kuruma, son of Kaniu v the Queen [1955] A.C. 197.

Work referred to:

1. Murphy on Evidence 6th Edition page 83.

E.D. Ndhlovu of Messrs Luso Chambers for the Appellants

M.N. Mulenga, Legal Counsel, Mopani Copper Mines PLC for the Respondent. 176

JUDGEMENT

MUNTHALI, AgJS, delivered judgment of the court.

This is an appeal from the judgment of the High Court dismissing the appellant’s claim for a
declaration that their dismissal was null and void. The evidence for the appellants was given by PW1,
Sitali Liswaniso, an Assayer, PW2, Martha Mumba a security officer and PW3, a scale man and crane
driver.

PW1 testified that on 21st March, 2001, he reported for work at the Assay laboratory in the plant
area. He was summoned to the mine. C.I.D section where he found DW1 and DW2, in company of
Zambia Police Officers. He was asked to identify an object which was in plastic. He identified it as
cobalt. PW1 narrated that he was implicated in cobalt deals after Mark Phiri mentioned him. He was
threatened that if he did not admit involvement, he would not be released from custody. He made a
statement while being filmed on video tape. He also made statements at mine police and Industrial
Relations Office in which he admitted involvement in theft of cobalt. At the time he made the
statements, he had already been charged.

PW2 testified that as a security officer her duties entailed protection of company property. On 26th
March, 2001, while on leave she was summoned by DW1 and DW2. She was told that she was
implicated in cobalt thefts. She denied all the accusations. She made a statement at the Industrial
Relations Office after being forced to. PW2 narrated that there was nothing, she could do if the
cobalt weight differed. She escorted cobalt weighing more than 5 Kg on three occasions. All she did
was to sign for what had transpired. She did not report the discrepancies to her supervisors. She
was later dismissed after a case hearing.

PW3 testified that as a driver it was his duty to take cobalt samples from the cobalt plant to the
Analytical Section. Before doing so, he would weigh the cobalt. Thereafter, the mine police escorted
him to the laboratory. On 25th April, 2001, he was called to the C.I.D. office where he was told to go
home. On 7th May, 2001, he gave a statement in which he denied involvement in cobalt deals. He
later admitted because he was forced. What he said was recorded on video tape. Later, he was
dismissed and he unsuccessfully appealed against dismissal to the manger. The evidence from the
respondent came from five witnesses. DW1 Frederick De Been testified that when he started
working for the respondent, he received information that several employees including security
people were involved in the theft of cobalt. From December, 2000, a project to catch the people
involved was launched. An agent by 177 the name of Mark Phiri, revealed all those who were
involved. Cobalt weighing more than 4 Kg would be taken to the laboratory and the excess of 4Kg
would be stolen. He referred to pages 28 and 29 of the plaintiffs’ bundle of documents, as being the
register for cobalt samples which did not show excess cobalt. It was DW1’s evidence that those who
were involved were questioned. They made written statements and oral statements which were
recorded on video tapes. Neither him nor DW2 used duress or inducement of any kind. He said
video tapes showed that the appellants were even smoking and drinking coffee. The plaintiffs
implicated themselves and each other in their statements.

DW2, Jurgens Van Schalkwyk, told the lower court that he was part of the team that made video
recording and he was involved in charging all the plaintiffs. The thefts were observed through
shortages from the laboratory.

DW3, Jonathan Mwanza, a senior security officer told the lower court that he got a statement from
PW1 which appears on pages 2 and 3 of the defendant’s bundle. He never used any dures on PW1.

DW4, Barnabas Mwale, also a security officer told the lower court that he had information that Mark
Phiri and Liswaniso Sitali, were actively involved in the theft of cobalt. The informant bought 1Kg of
cobalt from Mark Phiri for K60, 000. Phiri then mentioned Liswaniso Sitali, driver Francis Mutale,
Sylvester Musonda, Mary Mumba, Steven Lombe, Asia Mwale, Lotti Chulu and Alimande among
others.

DW5, Darius Chalwe, a senior Employee Relations Advisor told the court that in April 2001, all those
who were involved in the cobalt scam were charged by the security. A Mr. Kruger heard the appeals
as he was not involved in the initial investigations.

It was from this evidence that the learned trial Judge found that all the appellants worked as a
syndicate to steal from the respondent.

The appellants have filed six substantive grounds of appeal.

1. the learned Judge misdirected himself in law and in fact when he held that the respondent
could charge and dismiss for 178 offences committed against a previous employer;

2. the learned Judge misdirected himself in law and in fact when he held that the standard of
proof in criminal allegations made to support civil proceedings should be on the balance of
probabilities;

3. the learned Judge misdirected himself in law and in fact when he admitted in evidence
confessions without testing their voluntariness through trial within a trial;

4. the learned Judge misdirected himself in law and fact when he admitted in evidence and
relied on video tapes which has not been produced by any of the witnesses;

5. the learned Judge failed to pronounce a verdict on one of the plaintiffs, namely Francis
Mutale;

6. the learned Judge failed to pay adequate attention to the contents of the record of the
proceedings and to the prejudice of the plaintiffs and never referred to the plaintiff’s advocates in
his judgment but introduced into the judgment a Mr. Zulu who was unknown in these proceedings.

At the hearing of the appeal Mr. Ndhlovu learned counsel for the appellants amplified on the heads
of arguments in his oral submissions. On the issue of confessions in the third ground of appeal Mr.
Ndhlovu submitted that the confessions were not free and fair. He referred to the evidence of PW1
at pages 26 and 27 of the record, where the witness said he was forced to admit after being
detained and threatened. Mr. Ndhlovu also referred to the evidence of PW2 at pages 33 , 34 and 35,
of the record, where the witness told the court that she was threatened and detained by police. Mr.
Ndhlovu did not categorically state whether a trial within a trial in a civil matter could be held. On
the fourth ground of appeal, Mr. Ndhlovu indicated to court that video recording can be part of
evidence provided that they are produced. He submitted that the video recordings were not
produced. On the fifth ground of appeal, Mr. Ndhlovu submitted that there was no verdict in
respect of one of the appellants, namely, Francis Mutale. He suggested that his case be referred to
the High Court for rehearing.
Mrs. Mulenga, for the respondent, who had earlier on successfully applied for leave to file heads of
arguments, intimated to court that she would rely on the heads of argument. 179

In the appellants’ filed heads of argument ground 1, 2, 3, 4 and 5 were argued together and some of
these were highlighted in the oral submissions.

The respondent has addressed the appellants’ grounds of appeal seriatim. On the first ground of
appeal the respondent has argued that the offences were committed between January, 2000, and
February, 2001, and that the issue of locus standi was adequately dealt with by the learned trial
judge.

On the second ground of appeal the respondent has argued that in a civil case the standard of proof,
is proof on a preponderance of probabilities. It is not the same standard as in a criminal case. As
regards the third ground of appeal, it is argued that the witnesses called to support the appellants’
claim admitted making the statements and the process of a trial within a trial does not apply in civil
cases. It is further argued that the appellants did not object to the production of the disputed
statements on production or viewing of the video tapes.

On the fourth ground of appeal, the respondent has argued that video tape recordings are
admissible in court proceedings and are treated as real evidence. The respondent argues that on
18th March, 2002, the tapes were viewed without objection.

On the fifth ground of appeal the respondent has argued that Francis Mutale, (Plaintiff No. 11), was
included in the pleadings and the judgment affected him.

Lastly, on the sixth ground of appeal the respondent has argued that whatever a Mr. Zulu may have
been credited to have said, were submissions of the appellants’ advocates in the lower court.

We have read the heads of argument filed by the appellants and the respondent. We have also
heard the oral submissions made by the learned counsel for the appellants. It is common cause that
the appellants, were dismissed primarily on their admissions and confessions both orally (video
recording) and in writing. Most of the grounds of appeal have raised issues which lie in the domain
of criminal law. The charges the appellants faced may have been criminal in nature, but the
proceedings were civil in nature. In both civil and criminal case, 180 relevant evidence is admissible
regardless of the manner in which it is obtained. Somewhere there is a point of departure as will be
demonstrated shortly.
Murphy, the learned author of the book titled MURPHY ON EVIDENCE, 6th Edition, at page 83
(3.10.2) under the rubric “CIVIL CASES”, has this to say:

“The rule governing the admissibility of illegally or unfairly obtained evidence in civil cases is
the same as that in criminal case, namely the relevant evidence is admissible regardless of the
manner in which it is obtained. The court is concerned with the relevance, not the source of
evidence and will leave the parties to other remedies for any wrongful acts indulged in to obtain
evidence. And just as no general exclusionary discretion can be demonstrated in civil cases
corresponding to that which exists in criminal cases, so the judge in a civil case has no discretion to
exclude evidence illegally or unfairly obtained”.

In criminal cases a judge has a discretion to disallow a relevant piece of evidence as was shown in
Kuruma, Son of Kaniu v The Queen (1). In this case the appellant was found in unlawful possession
of two rounds of ammunition during the state of emergency in Kenya. The evidence proving that the
appellant was in possession of the ammunition had been illegally obtained. Lord Goddard, C.J. had
occasion to discuss the admissibility of evidence in civil and criminal cases. He had this to say at
page 204:

“There can be no difference in principle for this purpose between a civil and a criminal case.
No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules
of admissibility would operate unfairly against an accused”.

In the English case of Calls v Gunn (2), Lord Parke, C.J., echoed the dictum of Lord Goddard. At pages
680 lines C.D. he had this to say:

“That in dealing with admissibility in law, and as Lord Goddard points out, indeed as is well
known, in every criminal case a judge has a discretion to disallow evidence, even in law relevant,
thereon admissible, if admissibility would operate unfairly against an accused. I would add that in
considering whether admissibility would operate unfairly against an accused one would certainly
consider whether it has been obtained in an oppressive manner by force or against the wishes of the
accused”. 181

These appellants commenced the action in the court below as a civil action and it has come to us as
such. The remedies they were seeking and are seeking before us, are civil remedies. The procedures
adopted are civil procedures. We agree with the respondent that in a civil case the standard of
proof is proof on a preponderance of probabilities. It matters not that there is a criminal element
involved such as fraud or theft. Mr. Ndhlovu in his oral submissions did not go so far as to suggest
that in a civil case a trial within can be conducted to determine voluntariness. From the authorities
cited above, a judge in a civil case has no discretion to delve into how evidence was obtained. In this
case the learned trial judge found that the statements and the video tapes were relevant to the fact
in issue, namely, the way the syndicate operated to steal cobalt for the respondent. This syndicate
involved personnel from the cobalt plant, laboratory and security departments. PW2 admitted in
open court that she escorted cobalt weighing more than 5Kg and new reported the discrepancies.
The 5Kg weight is not reflected in the cobalt register. What she told the court is what is in her
statement which she and other appellants claim were not obtained freely and voluntarily. In
criminal law, the rule is that a confession can only be admitted if it is voluntary, and therefore one
obtained by threats or promise held out by a person in authority is not to be admitted. A trial within
a trial is the means by which voluntariness is established.

Both grounds two and three of the appeal have no merits. On the issue of video tapes not being
produced, the evidence on record shows that on 18th March, 2002, the respondent filed a notice to
produced and play video recordings. There was no objection to the playing and production of the
tapes. Learned counsel for the appellants was present when the tapes were viewed and the
respondent closed its case. At the beginning of the proceedings in Chambers, counsel for appellants
intimated that he wanted to raise a preliminary issue. The learned trial judge asked him to raise the
issue in open court. The nature of the issue was not indicated and it was never raised in open court.
This fourth ground of appeal cannot succeed. The fifth ground of appeal alleges failure by the
learned trial judge to pronounce a verdict on Francis Mutale. We agree with the respondent’s
submissions that the pleadings are inclusive if Mutale and that he implicated himself and others in
the theft of cobalt in his statement. It was for this reason that the learned trial judge found that all
the plaintiffs worked as a syndicate.

There was no merit in this ground of appeal. On the sixth ground of appeal we agree with the
appellants’ learned counsel that the learned 182 trial judge referred to a Mr. Zulu instead of counsel
who dealt with the matter. But whatever is attributed to Mr. Zulu, is what was said by the
appellant’s advocate. It was a typographical error on the part of the learned trial judge. There is no
indication how the appellants were prejudiced. This ground of appeal has no merit.

We shall lastly deal with the first ground of appeal which challenges the trial judge’s holding that the
respondent could not charge and dismiss for offences committed against a previous employer. This
relates to four appellants who admitted being involved in the cobalt deals between January and
March, 2000. The learned trial judge dealt with the issue of locus standi. He correctly held that
MOPANI PLC, had a vested interest in all mines assets and any mineral underground prior to 1st
April, 2001.
Here MOPANI PLC succeeded Z.C.C.M Limited. Succession entails the transmission of rights or
obligations from an entity which has altered or lost its identity to another entity. Only these
employees who did not cross over from .Z.C.C.M Limited to MOPANI PLC, can claim in his
employment. This ground of appeal also fails. The appeal is dismissed with costs.

Appeal dismissed. 183