The
applicant and the respondent were employer and employee respectively.
The respondent was employed by the applicant as its Chief Pharmacist
with effect from 1 December 2002 up to November 2008. It was a
specific term of her employment that the respondent would be entitled
to the use of a motor vehicle during the course of her employment.
At
the time of her joining the applicant, there was no policy in place
regulating the use and entitlement to the vehicle. Such was put in
place later and there is no dispute between the parties that it
applied to the respondent.
In
terms of her contract of employment, the applicant was allocated a VW
Polo registration number AAG 1727.
On
30 October 2008, the respondent wrote to the applicant, giving notice
of her intention to resign from employment. In her letter, she
indicated that her last working day would be 17 November 2008. She
indicated that she had some days that had accrued to her as leave
which she intended to forfeit in lieu of the requisite notice period.
It
may be pertinent to note, at this stage, that while the parties
wrangled for some time as to whether the respondent had given
adequate notice or not, that dispute is not before me and has since
been resolved. The status of the respondent as a former employee of
the applicant is thus not in dispute.
On
14 November 2008, three days before her last working day, the
respondent wrote to the applicant seeking to clarify her calculation
of the notice period she had given to the applicant. In the second
paragraph of the letter she wrote that she was entitled to purchase
the motor vehicle in her possession. It is not clear on the papers
how this issue had arisen.
On
17 November 2008, the respondent left the employment of the applicant
taking the motor vehicle with her. The applicant, not being persuaded
that the respondent was entitled to retain possession of the vehicle
after the termination of her employment, wrote to the respondent
requesting her to surrender the vehicle. The respondent did not
return the vehicle maintaining that she was entitled to purchase the
vehicle. This prompted the applicant to file this application seeking
an order compelling the applicant to surrender the vehicle to it.
The
application was opposed.
In
opposing the application, the respondent objected to the jurisdiction
of this court, arguing that the dispute between the parties is
essentially a labour issue over which the Labour Court has exclusive
jurisdiction.
Further,
the respondent argued that notwithstanding that her last working day
was in November 2008, she remained an employee of the applicant until
her notice period had run out, and, as at the time she left
employment, the applicant's motor vehicle policy applied to her,
entitling her to purchase the vehicle. She further alluded to an
agreement between the parties wherein the applicant's agent had
agreed that the applicant would sell the vehicle to her and that the
only remaining issue to be agreed upon was the currency in which the
transaction was to be concluded.
I
will deal with each of the issues arising from the respondent's
opposing affidavit.
The
issue of when the jurisdiction of this court is ousted in favour of
the exclusive jurisdiction of the Labour Court has been before this
court in a number of instances. In my view, it is the settled
position at law, now, that the jurisdiction of all other courts is
excluded in matters where the Labour Court has been granted specific
jurisdiction by the Labour Act [Chapter 28.01] (“the Act”). See
Tuso
v City of Harare
2004 (1) ZLR 1…, and Zimtrade
v Malord Makaya
HH52-05.
The
issue that falls for determination in this application is whether the
dispute before me is a dispute that the Labour Court has exclusive
jurisdiction.
Section
89(6) of the Labour Act provides that:
“(6)
No court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in subsection (1).”
Section
89(1) of the Labour Act provides:
“(1)
The Labour Act shall exercise the following functions -
(a)
Hearing and determining appeals in terms of this Act or any other
enactment; and
(b)
Hearing and determining matters referred to it by the Minister in
terms of this Act; and
(c)
Referring a dispute to a labour officer, designated agent or a person
appointed by the Labour Court to conciliate the dispute if the Labour
Court considers it expedient to do so;
(d)
Appointing an arbitrator from the panel of arbitrators referred to in
subsection (6) of section ninety-eight
to
hear and determine an application;
(d1)
Exercise the same powers of review as would be exercisable by the
High Court in respect of labour matters;
(e)
Doing such other things as may be assigned to it in terms of this Act
or any other enactment.”
In
interpreting these two sections of the Labour Act, this court has, in
the authorities I have cited above, held that the Labour Court has
exclusive jurisdiction in all applications and matters that are not
only defined but are determinable in terms of the Labour Act. In
other words, the Labour Court has jurisdiction in all matters where
the cause of action and the remedy for that cause of action are all
provided for in the Labour Act.
In
all other matters, where the cause of action and the remedy are at
common law, the jurisdiction of this court is not ousted.
It
is common cause that the applicant and the respondent are no longer
employer and employee respectively. The resignation of the respondent
as the applicant's Chief Pharmacist is not in dispute. The dispute
between the parties centres on the possession of the applicant's
motor vehicle to which the respondent claims a right.
While
it has to be accepted that the respondent's claim of right to the
motor vehicle arises from her terminated contract of employment with
the applicant, this is a
far cry from holding that there is a labour dispute between the
parties that can find a remedy or resolution in terms of the Labour
Act.
The
resolution of the dispute between the parties is not entwined with
the resolution of the contract of employment as was the case in
Zimtrade
v Malord Makaya
HH52-05, where,
pending determination of the contract of employment, the employer
sought to repossess its assets from the employee using the rei
vindicatio.
It
appeared to me then to be the correct position at law that where the
validity of the suspension of the employee or the termination of
their employment is still pending, the rei
vindicatio
could not properly lie at the instance of the employer. I am still of
the same view. On the contrary, where the status of the former
employee is without dispute, the rei
vindicatio
can lie at the instance of the employer, in appropriate cases, and
the matter thereby falls outside the purview of the Labour Court as
it is not a matter that can be heard or determined in terms of the
Labour Act or any other related enactment.
It
is my view that the rei
vindicatio
is
not a cause of action whose remedy can be granted in terms of the
Labour Act as a stand alone remedy in the absence of a dispute that
is specifically provided for under the Labour Act.
On
the basis of the foregoing, I would dismiss the point in
limine
raised by the respondent and hold that the jurisdiction of this court
over this matter remains.
I
now turn to the second issue.
The
applicant seeks an order compelling the respondent to surrender to it
possession of the motor vehicle that was allocated to her during the
course of her employment. The respondent has opposed the order on the
basis that she is entitled to purchase the motor vehicle. She argues,
and validly so in my view, that she exercised the option to purchase
the motor vehicle during the subsistence of her employment with the
applicant.
It
is common cause that the applicant's motor vehicle policy provided,
in clause 5 thereof, that a vehicle allocated to an employee would be
replaced after 4 years and that such a vehicle would be sold to the
user at 50% of its market value if the user opted to purchase the
vehicle. It is also not in dispute that the vehicle allocated to the
respondent had reached its retirement age, and, further, that the
respondent indicated her option to purchase the vehicle before she
left employment, albeit, during the very last days of her employment
as if the purchase of the vehicle was an afterthought.
That
the respondent has the right to purchase the motor appears to me not
to be above reproach.
In
its founding affidavit, the applicant deposed to its belief that the
respondent was not entitled to purchase the motor vehicle in dispute
as she had resigned when she purported to exercise her right as given
under the contract of employment.
The
applicant was erroneous in its belief in this regard.
As
correctly conceded by counsel for the applicant,
during
the hearing of the matter, the respondent exercised her option to
purchase the motor vehicle whilst still an employee of the applicant
and the applicant is bound to sell the motor vehicle to her. In this
regard, reference has to be made to the letter of the respondent of
14 November 2008 wherein she inelegantly referred to her entitlement
to the vehicle without specifically spelling it out that she was
electing to purchase the vehicle. The option was however exercised
and when it was exercised, the respondent was still an employee of
the applicant. It is common cause that she ceased to be an employee
on 17 November 2008 and not before.
The
issue that remains for my determination in this matter is whether the
respondent is entitled to retain possession of the motor vehicle
pending the finalization of the agreement of sale between the
parties.
I
am unaware of any law that entitles a prospective purchaser to have
possession of the merx
against
the wishes of the seller, prior to delivery of the merx
in terms of the sale agreement. I was not referred to any such law
during the hearing of the matter. My limited research has not yielded
any.
I
am aware that in some instances, where there is an amicable
relationship between the parties, for instance, where the
employer-employee relationship still subsists or was amicably
terminated, the seller may allow the prospective purchaser who is
already in possession of the merx
to
retain possession pending finalization of the sale. Another instance
that immediately suggests itself is where a tenant purchases the
leased property from the landlord. Such a tenant may remain in
occupation pending finalization of the agreement of sale and
transfer. An analysis of the two examples I have given above will
reveal that they are borne out of consent. They cannot thus be cited
as precedent for creating any right or entitlement on the part of
similarly circumstanced prospective purchasers to enforce possession
against the wishes of the seller.
Where
the arrangement obtains, in my view, it is simply an incidence of an
owner willingly parting with possession of his property pending
transfer of ownership in favour of the possessor. Such willingness on
the part of the seller cannot be compelled by an order of court.
On
the basis of the foregoing, I am of the view that notwithstanding my
finding above that the respondent has the right to purchase the motor
vehicle in question in terms of the provisions of the applicant's
motor vehicle policy, she is nevertheless not entitled to retain
possession of the vehicle against the wishes of the applicant pending
the finalization of the agreement of sale.
In
the result, I make the following order:
1.
The respondent, or any person possessing through her, shall, upon
service of this order, surrender to the applicant a motor vehicle,
namely, a VW Polo, registration number AAG 1727, failing which the
Deputy Sheriff is hereby empowered to take possession of same and
hand it over to the applicant.
2.
The respondent shall bear the costs of this application.
