The
applicant has approached the court on an urgent basis seeking the following
relief:
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause, if any, to this Honourable Court, why a final order should not
be made on the following terms:
1.
That the possession of the Ford Ranger vehicle registration No.ACO2985, Chassis
Number 6FPPXXMJ2PCG40156 by the 1st respondent be and is hereby
declared unlawful and the first respondent has no right to possess the vehicle.
2.
That the 1st respondent shall pay the costs of this application on a
legal practitioner and client scale.
INTERIM
RELIEF GRANTED
Pending
the determination of this matter, the applicant is granted the following
relief:
1.
That the 1st respondent be and is hereby ordered to return to the
applicant the said motor vehicle in her possession, namely, a Ford Ranger
vehicle, registration No.ACO2985, Chassis Number 6FPPXXMJ2PCG40156, within 24
hours of service of this order upon her.
2.
That the 1st respondent, including any of her agents, be and is
hereby interdicted, barred and stopped from interfering with the ownership and
possession by the applicant of the motor vehicle, namely, a Ford Ranger vehicle,
registration No.ACO 2985, Chassis Number 6FPPXXMJ2PCG40156.
3.
In the event that the 1st respondent fails to restore possession in terms of
clause 1 and 2 above, the 2nd respondent be and is hereby ordered and
authorised and required to seize the aforementioned vehicle from the 1st
respondent or from whomsoever is in possession of the vehicle and deliver the
same to the applicant.
4.
The 2nd respondent is authorised, in the execution of his duties
above, to enlist the assistance of members of the Zimbabwe Republic Police as
he may deem necessary.
5. The 1st
respondent shall pay costs of this application on a legal practitioner and
client scale.”
The
first respondent was employed by the applicant up to 28 February 2014 when her
fixed term contract expired. There is a dispute as to how the said
contract was terminated which the first respondent has referred to a Labour
Officer for conciliation. During the tenure of her employment contract,
the first respondent had access of a motor vehicle belonging to the applicant
for use in the discharge of her duties. The applicant maintains that the
vehicle was not given to the first respondent as a benefit, and, although not
disputing that fact, the first respondent insists that “is neither here nor
there” especially as her post has been abolished thereby entitling her to the
vehicle as a retrenchment package. In anticipation of the expiry of her
employment contract, the applicant notified the first respondent months
earlier, that her contract would not be renewed, sparking a dispute which has
been referred to a Labour Officer aforesaid. The first respondent has
refused to surrender the vehicle, even after the expiry of her employment
contract, insisting that she was unfairly dismissed and that until such time
that the issue of her dismissal is determined she has a right to the vehicle
which, in any event, is a negotiable package.
This
has prompted the applicant to approach this court…, seeking an order for the
return of the vehicle which it says is required for use in its business, and,
in any event, is a subject of a rebate granted by the tax authorities upon its
importation in 2012. For that reason, it should be in the possession and
use of the applicant.
It
appears common cause that the first respondent's employment contract expired on
28 February 2014, at which point she would have been expected to surrender the
employer's property - including the motor vehicle….,.
On
the merits of the matter, there can be no doubt that the vehicle in question
belongs to the applicant and not the first respondent. It was given to the
first respondent for use in the discharge of her duties as an employee of the
applicant. At no time was the vehicle part of her benefits in terms of her
employment contract. In fact, she admits that it was available for use by other
employees of the applicant and that a log book on its movement was
kept. At no time did the parties agree to transfer ownership to the first
respondent.
The
issue of a former employee's entitlement to an employer's vehicle after
termination arose in Zimtrade v
Makaya 2005
(1) ZLR 427 (H); Medical
Investments Ltd v Pedzisayi
2010 (1) ZLR 111 (H); and William
Bain & Co Holdings (Pvt) Ltd
v Nyamukunda
HH309-13.
In
my view, Zimtrade v
Makaya 2005
(1) ZLR 427 (H) is distinguishable from the present case in that pending
termination of the contract of employment, the employer sought to repossess its
assets from the employee using the rei
vindicatio and the court reasoned that where the validity of the
suspension of the employee is still pending, the rei vindicatio cannot lie at the instance of
the employer.
In
casu,
it is common cause that the employment contract terminated by effluxion of time
on 28 February 2014. What the employee probably wants to argue is
presumably that she had a legitimate expectation of a renewal. She can do
that, but the employer cannot be detained in relying on the rei vindicatio.
In
Medical Investments Ltd v
Pedzisayi 2010
(1) ZLR 111 (H) MAKARAU JP…, stated…, that:
“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.”
By
parity of reasoning, it cannot be said that an employee is entitled to retain
the vehicle in anticipation that it may be given to her as a retrenchment
package. A retrenchment which has not even begun, may never occur, and is
just a pipe dream in light of the expiry of the employment contract.
In
William Bain & Co Holdings
(Pvt) Ltd v Nyamukunda
HH309-13…, I made the point, which I repeat here, that:
“In
my view, it is the height of turpitude for the respondent to hold on to both
the vehicle and the house years after termination of the employment contract
under circumstances where he has no rights whatsoever over the properties…,. The
fact that the respondent is owed terminal benefits is not a ground for refusing
to surrender assets. In the end, we are left with the tired and limping
argument that because the respondent has referred the issue of whether the
employment contract was terminated by dismissal or by registration to the
Labour Court, then this court should not entertain this application even though
the Labour Court dispute not only did not have anything to do with the issues
before this court but also determined that dispute by judgement delivered in
May 2013.”
See
also PG Industries (Zimbabwe)
Ltd v Machawira
2012 (1) ZLR 552 (H).
To
the extent that the applicant owns the vehicle and that it was not given to the
first respondent as a benefit, and to the extent that the first respondent
retains it without the authority of the owner for use as a bargaining tool, the
applicant has made a case for the relief sought.
Accordingly,
I grant the provisional order in terms of the draft order as amended.
