NDEWERE J: The respondent was employed by the applicant as
an engineer and he was a managerial employee. In April, 2012, the
applicant transferred the respondent. The respondent successfully took
issue with the transfer at arbitration and the applicant was ordered not to
unilaterally transfer him and others. In addition, on 10 October, 2012,
the High Court granted an order suspending the transfer pending finalisation of
the labour process. Nevertheless, on 18 October, 2012, the applicant
transferred the respondent. On 29 November, 2012 another arbitration
award was granted, ordering the applicant to comply with the earlier award not
to transfer the respondent unilaterally. On 4 February, 2013, the
applicant dismissed the respondent for refusal to obey a lawful instruction in
relation to the transfer. The dismissal case went to arbitration.
On 30 July, 2013, arbitrator Shumba reinstated the claimant “without loss of
salary and benefits from 5 September, 2012 or payment of damages in lieu
of reinstatement on terms to be agreed upon by both parties, failure of which
either party can approach the arbitrator for quantification of such damages.”
It is common cause that the respondent was neither reinstated nor offered
damages. It is common cause that the respondent approached the arbitrator
for quantification of damages. It is also common cause that the applicant
has appealed against both the reinstatement and the quantification in the
Labour Court.
Prior to the granting of the arbitration award for reinstatement, the applicant
had applied to the High Court for arei vindicatio in respect of the
motor vehicle which was issued to the respondent as a Network Manager, a Mazda
BT 50 Double Cab, Registration No. AAC –1901. The applicant's argument
was that it terminated respondent's employment on 11 December, 2012 following
disciplinary proceedings and that because of that termination the respondent
should hand over the above motor vehicle regardless of the fact that the respondent
was challenging the termination.
In response, the respondent raised preliminary issues about lack of authority
by the deponent to the applicant's affidavit and citing a wrong name for the
respondent. The respondent also said the High Court has no jurisdiction to deal
with this matter since it is a labour dispute. During the hearing, the
applicant abandoned the other preliminary issues but persisted with the
argument that the High Court has no jurisdiction to deal with the matter.
I have considered the submissions on jurisdiction and I have concluded that the
application, being arei vindicatio, the High Court has
jurisdiction to deal with the matter on the basis of the Zimasco (Pvt) Ltd
v Marikano SC 181/10 matter.
On the merits, comprehensive heads of argument were filed by the parties on the
law on rei vindicatio. In Chetty v Naidoo 1974
(3) SA 13, at p 20, the court said,
“The owner, in instituting a rei vindicatio, need,
therefore, do no more than allege and prove that he is the owner and that the
defendant is holding the res:the onus being on the defendant to allege and
establish any right to continue to hold against the owner.”
The position was confirmed in our jurisdiction in the case
of Musanhi v Mt Darwin Rushinga Co-operative Union 1997 (1)
ZLR 120 SC.
The respondent submitted that he has discharged the onus to
establish “any right” to continue to hold against the owner. He referred
to Chetty v Naidoo supra, at p 13 where the court said
“......and it follows that no other person may withhold it from the owner
unless he is vested with some impossible right against the owner e.g. a right
of retention or contractual right.”
The applicant in its founding affidavit conceded that
reinstatement will entitle the respondent to retain the motor vehicle. In
the applicant's founding affidavit, Judith Tsamba, the applicant's Company
Secretary, after noting that the respondent was challenging the termination of
his contract of employment said in para 6,
“I am informed that whatever views he may have regarding
the legality of his dismissal and whatever challenge he has or may file with
the courts against this dismissal will not entitle him to retain the vehicle
until and if at all an order is made for re-employment.”
On 30 July, 2013, an order reinstating the respondent was
made by the arbitrator and in line with the above paragraph in the founding
affidavit, respondent actually expected litigation to cease.
The court views para 6 of the founding affidavit as an
acknowledgement by the applicant that the respondent, after reinstatement, has
established a right of retention or contractual right.
That acknowledgement is a correct analysis, from a legal
point of view.
The case of Standard Chartered Bank of Zimbabwe Ltd
v Matsika 1997 (2) ZLR 389 referred to by the respondent is relevant.
At p 392, the court said,
“The appellant was directed to reinstate the respondent
without loss of pay and other benefits from the date of his suspension without
pay. Implicit in the order is that the contract of employment had not
been severed and that the contractual chains still bind the one to the
other. Thus, the appellant..... was to put the respondent back into the
position the respondent occupied and pay him as though the misconduct and other
proceedings had not been brought against him.”
While it is common cause that applicant has neither
reinstated the respondent or paid him, it is expecting too much for the
applicant to expect respondent to hand over the motor vehicle at this stage
when he has been reinstated and is expecting more employment benefits or
damages from the applicant. The motor vehicle is the only thing
respondent has in his possession to “retain” or “continue to hold” against the
employer until its established employment benefits or damages have been paid
out.
It is common cause that the applicant has appealed against
both the reinstatement award and the quantification award. However, the
applicant conceded, and rightly so, in para 31 and 33 of its heads of arguments,
that an appeal does not suspend the decision appealed against. That being
the case, the respondent therefore stands reinstated.
It is therefore the court's considered view that the
respondent has successfully discharged the onus of alleging and establishing a
right to the motor vehicle as a reinstated employee or alternatively a right to
“retain it” or hold on to it in lieu of damages, pending the
finalisation of the employment dispute between the parties.
Dube & Manikai,
applicant's legal practitioners
Messrs
Sinyoro & Partners,respondent's legal practitioners
