Alex Zulu v Konkola Copper Mines (Appeal No 136/2023) (21 August 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA Appeal No 136/2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ALEX ZULU APPELLANT AND KONKOLA COPPER MINES RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA On 12th , August, 2025 and 21st August, 2025. For the Appellant: In Person For the Respondent: Mr. T. Chibeleka and Ms. N. Phiri both of Messrs ECB Legal Practitioners JUDGMENT Banda-Bobo, JA, delivered the Judgment of the Court Cases referred to 1. Dennies Stephen Banda v The People (1970) ZR 14 (HC), 2. Anderson Mazoka v Levy Patrick Mwanawasa and Others (2005) ZR 3. Kunda v Konkola Copper Mines (SCZ Appeal No. 48 of 2005) 4. Kapembwa v Maimbolwa & Attorney General (1981) ZR 127 (SC) 5. Maake v Director of Public Prosecutions (481/09) [2010] ZASCA 51 (31 March 2010) 6. Zambia Revenue Authority v Jayesh Shah (SCZ Judgment No. 10/2001) 7. Savenda Management Services Ltd v Stanbic Bank (Z) Ltd (Selected Judgment No. 10 of 2018) 8. Attorney General v Richard Jackson Phiri (1988-1989) ZR 121 9. Moses Choonga v ZESCO Recreation Club, Itezhi-Tezhi (SCZ Appeal No.168of2013) J1 10. Wilson Masauso Zulu v Avondale Housing Project (1982) ZR 172 11. The Attorney General v Marcus Kampumba Achiume (1983) ZR 1 12. Nkhata and Four Others v Attorney General (1966) ZR 124 13. Khalid Mohamed v The Attorney General (1982) ZR 49 14. David Zulu v The People ( 1977) ZR 151 Legislation and other works referred to: 1. Disciplinary Code and Grievance Procedure 2. The Mine Regulations of 1924 3. Halsbury's Laws of England, Volume 16, 4th Edition 4. The Employment Code Act No. 3 of 2019 5. Mwenda W. S. and Chungu C., A Comprehensive Guide to Employment Law in Zambia, (University of Zambia Press, 2021) 6. Code and Grievance Procedure Management Employees Procedure No. KCM-P-90 7. Zuckerman on Procedure: Principles of Practice (3rd Ed. Sweet& Maxwell 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Hon. Mr. Justice Davies. C. Mumba, delivered on 17th August, 2022, in the High Court at Nd ola. 2.0 BACKGROUND 2.1 The Appellant, who was the complainant in the lower Court, filed a complaint into Court, supported by an affidavit, on 15th September, 2021 seeking the following reliefs against the Respondent: (1 ) Damages for unfair dismissal (2) Damages for mental distress caused by the actions of the Respondent J2 (3) Interest (4)Costs 2.2 The gist of the averments in the affidavit in support is that the Appellant was employed by the Respondent as a Workman and consequently elevated to the position of Electrician in 2014. 2.3 That on 9th March 2021, copper hanger bars were found in the area where he was assigned to carry out plant checks on isolations, reactivations, hot deep tanks and substations. That following the discovery of the copper hanger bars, he was charged with the offence of theft by servant after the Respondent reported the matter to the police. 2.4 The Respondent also took administrative measures and he was charged for a disciplinary offence which consequently led to his dismissal. 2.5 That on 6th August 2021, the Court acquitted him of the said charge. He also deposed that during the disciplinary hearing there was no evidence adduced to the effect that he had stolen or had attempted to steal the copper hangers. 2.6 The Respondent reacted to the complaint by filing an answer on 2nd August 2022, in which it was averred that the complainant J3 was employed by the Respondent and was later promoted to the position of Artisan Electrician. 2.7 It was averred that on 9th March 2021, the late Constable Teddy Zyambo, who was at the time the Mine Security Officer, received a report of an unknown person at the tank house carrying some hanger bars. That upon following that report, they found the Appellant unaccompanied, and further investigations led to the arrest of the Appellant who was charged with a criminal offence. It was further deposed that the Appellant was later charged administratively for the offence of unauthorized removal of company property and non-compliance with established procedures. 3.0 DECISION OF THE LOWER COURT 3.1 The lower Court found that the Appellant's acquittal had no relevance to the present case. The Court found that the Respondent properly exercised its disciplinary powers to summarily dismiss the complainant from employment. 3.2 As a consequence, the learned Judge dismissed the Appellant's claims for damages for both unfair dismissal and mental distress. The learned Judge found that the Appellant did not J4 offer any reasonable explanation for being found at a point where the stolen copper hanger bars were also discovered. 4.0 THIS APPEAL 4.1 Unhappy with the Judgment, the Appellant launched this appeal, by way of Notice of Appeal and Memorandum of Appeal filed on 10th October, 2022. The Record of Appeal was filed on 5th May 2022. Six grounds of appeal were fronted and couched thus:- Ground One The honourable Judge in the Court below erred in fact and law by holding that the dismissal of the Appellant's employment by the Respondent despite having no CCTV evidence of Appellant removing the copper hanger bars. (sic) Ground Two The honourable Judge in the Court below erred in law and fact when he made a finding that the letter of termination carried a reason which satisfied the Court below as valid and within the requirement of the law when that was not the case. JS Ground Three The honourable Judge in the Court below erred in law and fact by failing to consider the various judicial authorities that have given guidance to the rules as regards doing substantial justice and piercing the veil in search of the real reasons for termination. Ground Four The honourable Judge in the Court below erred in law and fact by failing to recognize the fact that the Respondent failed to bring witness during the disciplinary hearing. Ground Five The honourable Judge in the Court below erred in law and fact by disregarding all of the Appellant's evidence for the real reason behind termination. Ground Six The learned Judge in the Court below was not on firm ground when he held that the Respondent's termination of the Appellant's employment was properly done and within the power of the Respondent. J6 5.0 ARGUMENTS IN SUPPORT 5.1 The Appellant filed Heads of Argument and a List of Authorities on 5th May, 2023. 5.2 In arguing ground one, the Appellant contended that the Respondent failed to prove its allegations of finding the Appellant stealing copper hanger bars. He argued that the issue of bribery, raised by the Respondent in its affidavit in support of the answer, would have been sufficient evidence to support the allegation against the Appellant in the absence of CCTV footage. However, the said evidence of bribery was not adduced by the Respondent in Court. 5.3 The Appellant further submitted that he was mistakenly identified because the actual culprit behind the theft of all the copper hangers was not apprehended. He pointed out that, according to the evidence at pages 188, 193, and 194 of the Record of Appeal, the person who was spotted was wearing an orange T-shirt, yet the Appellant, who was arrested, was wearing a blue work suit. 5.4 He also submitted that had the Respondent's officer, Mr. Teddy Zyambo, conducted proper investigations, he would J7 have concluded that the hacksaw found in the trench alongside the copper hangers did not belong to the Appellant. He emphasised that his own hacksaw was locked in his drawer. He further argued that the Appellant could not be held liable for the substation doors being left open, as the Mine Safety Procedure requires that doors be left open while personnel are inside, to facilitate escape in the event of a fire. 5.5 The Appellant asserted that the Respondent had CCTV footage but failed to produce the footage that could have identified the actual culprit. Reference was made to the case of Dennies Stephen Banda v The People1 in which evidence of bribery , in a criminal case was found to have established both actus reus and mens rea. Further reference was made to the cases of Anderson Mazoka v Levy Patrick Mwanawasa and Others2 and Kunda v Konkola Copper Mines PLC3 on the , principle that he who alleges must prove. 5.6 In arguing ground two, the Appellant faulted the Court for accepting and relying on the warning letter marked BM7, dated 25th January 2010, as evidence. He argued that the letter had no relevance or effect on his dismissal as it was not J8 1n existence at the time of his termination. He further contended that the letter was never served on him and was brought into the matter as an afterthought. 5.7 The Appellant argued that, according to Clause 3.6.2 of the Respondent's Disciplinary Code and Grievance Procedure (found at page 91 of the Record of Appeal), a warning letter is valid only for six months. Thus, the Court should have rejected the letter as expired. He also stated that the letter was merely a circular addressing clock-in issues due to a software malfunction that was later corrected by the contractor. 5.8 He added that the only reason he did not immediately log in was that the logbook was located inside the substation, which he had to open first. However, he was interrupted by the Mine Police Officer, Mr. Teddy Zyambo, who interrogated him. The Appellant stressed that it is practically impossible to log in before accessing the substation, as the logbook is kept inside. 5.9 The Court was referred to the cases of Kapembwa v Maimbolwa & Attorney General4 and Maake v Director of Public Prosecutions5 regarding circumstances under which J9 an appellate court can interfere with the findings of a lower Court. 5.10 On the principle that cases should be decided on their merits and substance, reference was made to Zambia Revenue Authority v Jayesh Shah6 and Savenda Management Services Ltd v Stanbic Bank (Z) Ltd. 7 5.11 In arguing ground three, the Appellant submitted that his dismissal was unfair as it was based on an allegation that he was involved in the theft and unauthorised removal of company property while on duty. 5.12 He further argued that it was unjust to dismiss him based solely on the fact that he entered Unit 3 Substation alone, especially considering that another employee, Kalumba David (an electrician), had also entered a substation alone but was not charged with violating established procedures. He contended that as a qualified electrician, he was authorised under The Mine Regulations of 1924 to be alone as a competent person. 5.13 He submitted that the lower Court failed to consider the authorities he cited regarding doing justice and lifting the JlO corporate veil, including Attorney General v Richard Jackson Phiri8 • 5.14 He further contended that the lower Court should have considered the substance of the dismissal to determine whether there was any factual basis for it. He maintained that the evidence on record did not support the charges brought against him. 5.15 It was submitted that the lower Court failed to apply the principles governing unfair dismissal. In explaining the concept of unfair dismissal, reference was made to Moses Choonga v ZESCO Recreation Club, ltezhi-Tezhi9 and Halsbury's Laws of England, Volume 16, 4th Edition Re issue, Paragraphs 628 and 639. 5.16 The Appellant urged this Court to reverse the findings of the lower Court, asserting that they were based on a misapprehension of the facts and made in the absence of relevant evidence. In support of this argument, reference was made to Wilson Masauso Zulu v Avondale Housing Project10 and The Attorney General v Marcus Kampumba Achiume11 • Jll 5.17 Under ground four, it was submitted that the trial Court failed to recognise that the Respondent did not call the key witness, Mr. Teddy Zyambo, the Mine Police Officer who arrested the Appellant, to testify during the disciplinary hearing, thereby denying the Appellant the opportunity to cross-examine him. 5.18 It was further argued that the disciplinary hearing was rendered futile given that Mr. Cephas Kalaba testified to having seen someone in orange attire throwing copper hangers, whereas the Appellant was wearing a blue work suit on the material day. He prayed that this ground be upheld as the failure to call the key witnesses deprived him of a fair hearing. 5.19 Under ground five, it was argued that the lower Court disregarded the Appellant's evidence, which sought to expose the true reason behind his dismissal. He reiterated that the person seen by Mr. Kalaba was wearing orange attire, while the Appellant wore a blue work suit. He faulted Mr. Zyambo for rushing to charge him without proper investigation. He also argued that access to the substation was not exclusive, J12 as all electricians had keys and similar safety boots with indistinguishable footprints. He also submitted that, the CCTV footage was never produced, and the warning letter was wrongly admitted. 5.20 He also contended that it was not true that he attempted to bribe the arresting officer on the material day as asserted by the Respondent. He contended that the Respondent's failure to lodge criminal charges for such a serious offence suggested a rush to dismiss him and that the other alleged offences were merely concocted to justify his dismissal. 5.21 In arguing ground six, it was submitted that the trial Court failed to appreciate that the dismissal was unfair due to the lack of a factual foundation. The Appellant argued that the Respondent's evidence, relating to the charges of Unauthorised Removal of Company Property and Non Compliance with Established Procedures (at pages 95 and 96 of the Record of Appeal), did not support the charges and should have been rejected. He urged the court, citing Nkhata and Four Others v Attorney General1 2 and Wilson Masauso Zulu v Avondale Housing Project Ltd1 0 to reverse , J13 the findings of the trial Court, which had accepted the Respondent's evidence without evaluating its relevance or adequacy to justify the dismissal. 6.0 ARGUMENTS IN OPPOSITION 6.1 Submitting in opposition on ground one, it was argued that the old adage "he who alleges must prove" had been misunderstood by the Appellant, who was the complainant in the lower Court. It was submitted that the Appellant bore the burden of proving his case on a balance of probabilities. Reference was made to the cases of Wilson Masauso Zulu v Avondale Housing Project Limited10 and Khalid Mohamed v The Attorney General 3 which establish that a 1 , complainant must prove their case and that the mere failure of the opponent's defence does not entitle the complainant to judgment. 6.2 Under ground two, it was argued that the Appellant's submissions centred on exhibit "BM7"a letter addressed to him advising that he had not been logging in since the Respondent's system was introduced, thereby breaching the rules of the time and attendance control procedure. That the J14 letter instructed the Appellant to begin logging 1n immediately, warning that failure to comply would result in severe disciplinary action. 6.3 It was further submitted that the lower Court, in finding that the Respondent could not be faulted for concluding that the Appellant was guilty of non-compliance with established procedures, analysed the Respondent's logging-in procedure. This procedure, consistent with standard safety requirements, mandated that a minimum of two electricians enter the substation at any given time. The Respondent argued that the lower Court correctly concluded that the decision to summarily dismiss the Appellant for non compliance with established procedure was well-founded. 6.4 Reference was made to Section 50(1) of the Employment Code No. 3 of 2019, which provides that: (i) An employer shall not summarily dismiss an employee except in the following circumstances: (ii) Where an employee is guilty of gross misconduct inconsistent with the express or implied conditions of the contract of employment; (iii) For wilful disobedience to a lawful order given by JlS the employer; (iv) For lack of skill which the employee expressly or impliedly warrants to possess; (v) For habitual or substantial neglect of duties; (vi) For continual absence from work without permission or reasonable excuse; or (vii) For misconduct under the employer's disciplinary rules where the punishment is summary dismissal. 6.5 It was further submitted that the offence of non-compliance with which the Appellant was charged is found under Clause 4.41(c) of the Disciplinary Code, which states that: "Non-compliance with established procedure/ standing instructions; failure to follow established procedure; or failure to handle complaints or grievances in the prescribed manner." 6.6 Applying Section 50(1) of the Employment Code Act No. 3 of 2019 together with the Respondent's Disciplinary Code, it was argued that the Appellant was properly summarily dismissed. His failure to log in had previously attracted a final warning, and he subsequently admitted to gross misconduct inconsistent with the conditions of his employment contract. J16 6.7 On ground three, it was submitted that the Appellant's argument was misconceived and should be rejected. That the Mines Regulation 1924, relied upon by the Appellant to justify entering Unit 3 substation alone, must be read together with HIPOS and the Electrical Engineering Procedure KCM LTP 34 (Sections 5.11 and 5.12), which requires a minimum of two electricians to undertake work in a substation. That the only exception is in an emergency. That the lower Court's finding that the Appellant's entry into Unit 3 substation was contrary to procedure was therefore a sufficient basis for dismissal. 6.8 Regarding the claim of unfair dismissal, the Respondent referred to A Comprehensive Guide to Employment Law in Zambia (pp. 241-242) for definitions of unfair and wrongful dismissal, which would be discussed in due course. It was argued that for a party to succeed in an unfair dismissal claim, they must show that the dismissal was contrary to the Employment Code Act No. 3 of 2019. Further that the court must also consider the substance and merits to determine whether the dismissal was reasonable and justified. In this case, the lower Court considered both substance and merits J17 before concluding that the Respondent was justified in summarily dismissing the Appellant for unauthorised removal of company property and non-compliance with established procedure. 6.9 On ground four, the Respondent argued that the Appellant's complaint regarding the absence of key witnesses Teddy Zyambo and Cephas Kalaba for cross-examination was misplaced. A disciplinary tribunal is not a trial court; its role is to give the affected employee an opportunity to be heard and to have a factual basis upon which to impose punishment if warranted. Reference was made to the Respondent's Code and Grievance Procedure Management Employees Procedure No. KCM-P-90 (pp. 83-100 of the Record of Appeal), which the Respondent followed. That there was no requirement to call the said witnesses during the disciplinary hearing. Further that the Appellant was improperly applying court procedures to a disciplinary hearing. 6.10 On grounds five and six, it was submitted that the lower court considered all evidence from both sides and correctly found facts suggesting the Appellant committed the offence. He was J18 found with a hacksaw believed to have been used to cut copper hangers. Evidence was also given that the late officer Zyambo, upon discovering copper hangers in a trench, questioned the Appellant, who admitted that the hangers should not have been there. Reference was made to Attorney General v Richard Jackson Phiri8 where the Supreme Court , held as follows: "we agree that once the correct procedure has been followed, the only question which can arise for consideration of the court based on the facts of the case, would be whether there were facts established to support the disciplinary measure since it is obvious that any exercise of powers will be regarded as bad if there is no substratum of facts to support the same. Quiet clearly, if there is no evidence to sustain the charges levelled in the disciplinary proceedings, injustice would be visited upon a party concerned if the court should not then review the validity of the exercise of such power simply because the disciplinary authority went through the proper motions and followed the correct procedure. Once correct procedure is followed, the court must then consider whether facts exist to support the disciplinary measure. If there is no evidence to J19 sustain charges, injustice would result if the court refused to review the decision simply because procedure was followed". 6 .10 It was argued that the Appellant's claims that there was no factual basis for his dismissal were unfounded. That the lower Court properly exercised its discretion based on the relief sought. 7.0 ARGUMENTS IN REPLY 7 .1 In reply, it was submitted that contrary to the Respondent's position, the appeal has merit. That the authority of Zuckerman on Civil Procedure supports the Appellant's grounds of appeal. 7.2 It was argued that the lower Court placed undue weight on exhibit "BM7", which was irrelevant as it had expired after six months. Further that Clauses 3.6.2 and 3.5.2 of the Respondent's Disciplinary Code and Grievance Procedure (p. 91 of the Record of Appeal) were allegedly ignored. 7.3 On the burden of proof, the Appellant argued that the principle he who alleges must prove applied to the Respondent when it alleged theft of copper hangers, and J20 that the Respondent failed to prove this allegation. That his dismissal was based on circumstantial evidence, which was flawed. Reference was made to David Zulu v The People14 on the weaknesses of circumstantial evidence. 7.4 It was submitted that exhibit "BM7" had expired and thus could not justify a finding of guilt for non-compliance with procedure. It was also argued that Section 50(1) of the Employment Code Act No. 3 of 2019 on gross misconduct did not apply to the Appellant because there was no tangible evidence supporting his dismissal. 7. 5 The Appellant also argued that the Mines Regulation 1924 authorised him, as a qualified electrician, to enter the substation alone. Further that on the same day, another electrician, David Kalumba, worked alone in another substation without being charged. Further that the Appellant entered the substation but did not undertake any work there. 7.6 Regarding the hacksaw, the Appellant denied being found with it, stating that Zyambo's written statement did not J21 say so. The hacksaw found with copper hangers in the trench was not his; his own was in his locker. 7.7 On the disciplinary process, he acknowledged that this court could not sit as an appellate court over the disciplinary hearing, but could review whether the powers were validly exercised. He referred to Attorney General v Phiri8 where the Supreme Court stated that even if , procedure is followed, there must be facts to support the disciplinary action. 7 .8 The Appellant contended that the lower Court's evaluation of the evidence was unbalanced. He pointed out that Kalumba, working alone, was not charged; that the intruder seen removing copper hangers wore orange, while he wore blue; and that the hangers were found in the trench, not with him. 7.9 He further cited Marcus Kapumba Archiume11 which , held that an appellate court may reverse factual findings if they are perverse, made without evidence, based on a misapprehension, or such that no reasonable court could J22 make. He added that an unbalanced evaluation of evidence amounts to a misdirection. 7.10 He urged the court to reverse the lower Court's findings. 8.0 HEARING 8.1 At the hearing of the matter, the Appellant relied on the Heads of Argument filed in support of the Appeal, the Record of Appeal, and the Heads of Argument in reply. He further contended that the letter marked "BM7" was invalid, as it had already expired. 8.2 In opposition, the Respondent relied on the Heads of Argument filed on 10th August 2023 and prayed that the Appeal be dismissed. 9.0 DECISION OF THIS COURT 9. 1 We have carefully considered the Record of Appeal, the grounds of appeal and the submissions on behalf of the parties by counsel. 9. 2 The parties will be refe rred to as they appear in this court. 9. 3 The appeal is premised on six grounds, which we will consider collectively in light of the shared legal questions and overlapping factual considerations. J23 . ' 9.4 The Appellant's arguments attempt to equate an acquittal in criminal proceedings to an exoneration in employment law. This is a misapprehension of the law. The Supreme Court in Wilson Masauso Zulu v Avondale Housing Project10 clarified that an acquittal in a criminal matter does not automatically exonerate a party in civil or administrative proceedings. The standards of proof differ markedly, beyond reasonable doubt in criminal law, and on a balance of probabilities in civil and employment matters. 9. 5 Our view is that the trial Court correctly held that the acquittal had no bearing on the administrative processes of the Respondent. It is well-settled in law that an employer need not await the outcome of criminal proceedings before taking disciplinary action, as held in Attorney General v Richard Jackson Phiri8 . 9.6 The Appellant admitted that he was found near the area where the copper bars were discovered, alone, and without logging his entry into the substation. Whether he actually committed the theft is immaterial, as the employer's disciplinary case was anchored on the violation of company J24 • ,, j procedure, particularly the failure to comply with established safety and reporting protocols. That basis alone can lawfully found a summary dismissal, provided procedural fairness is met. 9. 7 The fact that the CCTV footage was not produced, or that a key witness (Teddy Zyambo) was not called at the disciplinary hearing, is not necessarily fatal. Disciplinary proceedings are not courts of law and are not subject to the strict rules of evidence. The employee must simply be given a fair opportunity to respond to the allegations, not a trial in the judicial sense (Moses Choonga v ZESCO Recreation Club, Appeal No. 168 of 2013). 9.8 With respect to the warning letter, it is arguable whether its admission was relevant. However, even if the letter was excluded, the Respondent's case rested on the events of March 2021 and the breach of company procedure at that time. Hence, the warning letter had minimal probative value and its inclusion did not materially affect the outcome. 9.9 The Appellant also attempted to rely on the conduct of other employees (such as Kalumba David) to demonstrate selective J25 ' I l • enforcement of procedure. However, employment law allows for differential treatment where the circumstances differ. There is no evidence that the Respondent treated the Appellant differently from others in identical situations. 9.10 Finally, the argument that the dismissal lacked a factual substratum is unpersuasive. The Record of Appeal demonstrates that the Respondent charged and dismissed the Appellant for non-compliance with established procedures and not specifically for theft. Whether or not someone else may have committed the theft does not exonerate the Appellant from failing to follow safety and procedural protocols. 10.0 CONCLUSION 10. 1 In view of the fore going, this Court finds no misdirection or error of law or fact on the part of the learned trial Judge. The Respondent, as employer, acted within its rights under the contract of employment and the applicable disciplinary code. . " \ 10.2 Accordingly, this appeal is dismissed in its entirety for lack of merit. This being an ustrial Relations Division matter, we shall make J. CHASHI COURT OF APPEAL JUDGE ........ A~ ............ . P.C.M.NGULUBE A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J27