DUBE J: This is an application for a rei
vindicatio. The respondent was employed as applicant's Chief Executive
Officer for a five year contract. He was issued with a Mercedes Benz S280. The
contract was not renewed after its expiry. He lodged a complaint of unfair
labour practice with the Ministry of Labour and that matter was still pending
at the time this application was filed. On termination, he refused to hand over
the vehicle prompting the applicant to compel him to surrender the vehicle
through this application.
The respondent's defence is that this application is a pure
labour issue and that the respondent is challenging his unfair dismissal at the
Labour Court which places this matter solely in the hands of the Labour Court.
That this court has no jurisdiction to determine this application pending the
determination of the matter pending at the Ministry of Labour. On the merits,
the respondent's argument is that he was entitled to purchase the vehicle in
terms of the motor vehicle scheme and contract of employment.
The jurisdiction of the Labour Court is governed by Section
89 of the Labour Act, [Cap 28; 01]. The relevant paragraphs read
as follows;
“89 (1) The Labour Court shall exercise the following
functions—
(a) hearing and determining applications
and appeals in terms of this Act or any other enactment; and
(b) …….............................................. and
(c)……………………………………;
(d……………………………………. ;
(e) ……………………………………;
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).”
These provisions have been interpreted in a number of
cases. In DHL International (Pvt) Ltd v Clive Madzikanda HH
51/10 MAKARAU J (as she then was) held that s 89 means
that if the dispute is provided for in the act both in terms of the cause of
action and the remedy, then the Labour Court has jurisdiction over the
matter. Similar sentiments were expressed inNational Railways of Zimbabwe
Artisans Union and Ors SC 8/05 where ZIYAMBI JA in reviewing a matter
involving an application for an interdict which had been taken to the labour
court remarked thus,
“Thus, the application and the
remedies obtainable thereby must be authorised in the Act or the enactment
authorising the application to the Labour Court. Nowhere in the Act is the
power granted to the Labour Court to grant an order of the nature sought by the
respondents in the court a quo, nor have I been referred to ant enactment
authorising the Labour Court to grant such an order.”
The reasoning of the judge is equally applicable here as
both remedies are common-law remedies which the Labour Court has no jurisdiction
to deal with. See also Tuso vCity of Harare 2004(1) ZLR 1(HC).
The reasoning behind this is that the Labour Court is a creature of
statute and its jurisdiction is confined to the four corners of the statute.
The next issue is whether the High Court has jurisdiction
to determine an application for vindication of property where the Labour Court
is seized with a dispute over the dismissal of the employee. In Zimtrade vMaylord
Makaya HH 52/05 MAKARAU J declined to grant a rei
vindicatio where an employee had been dismissed and the matter was still
pending at the Labour Court. She remarked as follows;
“It is in my further view unacceptable splitting of hairs
to separate the determination of the validity of suspension from employment, on
one hand, from the determination of whether or not that suspension affects the
benefits enjoyed by the employee, on the other hand. The two are interdependent
and are both governed by the existing employment relationship obtaining between
the two parties. The argument that the employer can vindicate his
property at any time does not impress me as the employee can always raise the
defence of claim of right to possess the property until he or she is
effectively and lawfully disentitled to the property.”
This case was followed in Telecel
Zimbabwe (Pvt) Ltd v Naquib Omar HH 116 /11.
CHIWESHE JP was of the view that the wording of ss 89
(6) and (1) empowers the Labour Court to deal with applications of this nature
and further that the legislature intended that all labour disputes be dealt
with to the exclusion of any other court by the Labour Court.In Zimasco
(Pvt) Ltd v Farai Maynard Marikano HH 235/11, the
respondent's contract of employment was terminated and he retained the
applicant's vehicle. The applicant filed an application for rei vindicatio
with this court. MTSHIYA J declined to exercise his jurisdiction over the
matter on the basis that the matter was a labour dispute. The Supreme Court on
appeal set aside the order of the High Court and remitted the matter to the court
for determination on the merits before the same judge. The Supreme Court did
not expressly deal with the question whether this court has jurisdiction to
entertain a rei vindication application where the former employee was dismissed
and an appeal is pending in the Labour Court. However, it is apparent that
the Supreme Court's position was that the High Court has
jurisdiction to deal with applications for rei vindicatio pending
litigation in the Labour Court.
In an earlier case of Zimbabwe Broadcasting Holdings v
Gomo 2010 (1) ZLR 8 (H, GOWORA J had expressed the view that this type
of application can be determined by this court. This case involved an
employee who had noted an appeal against her dismissal to the Labour
Court. The applicant had in the interim applied for return of its
property. The court held that an appeal to the Labour Court did not give
the employee the right to retain the property she was in possession of in terms
of a contract of employment that had been terminated unless she had a
recognisable defence to the claim by the applicant. The court remarked as
follows,
“Our law, as it currently stands, is to the effect that
once an employee has been suspended or dismissed from employment, any benefits
extended to such employee from that relationship cease. In Chisipite
Schools Trust (Pvt) Ltd v Clark, GUBBAY CJ stated: “Pending the
removal of the suspension, the respondent was not entitled to the continued
enjoyment of the benefits comprising the free occupation of the Headmistress's house
and the continued use of the motor vehicle. A Labour Relations Officer cannot
order the respondent to surrender these particular benefits. Consequently, the
applicant being unable to resort to self-help approached the High Court for
relief, I consider it was justified in doing so”.
The Labour Court is a creature of statute and is only
empowered to deal with matters brought to it in terms of s 89 of
the Act. This implies that it can only deal with disputes that are provided for
in terms of the Act thus in terms of both the cause of action and the remedy
sought. The rei vindicatio is a common law remedy and is not
provided for in terms of the Act. The High Court can deal with this application
as it is a court of inherent jurisdiction and it can do so regardless of the
stage at which proceedings at the Labour Court are. This approach is based on
the principle that despite an employee's challenge to the dismissal, the
employee stands dismissed. What is before me is not a labour dispute. Clearly
the Labour Court was not conferred with the jurisdiction to deal with claims of
rei vindication. A rei vindicatio is a common law remedy and
the Labour Court has no jurisdiction to deal with common law remedies. MAKARAU
J expressed reservations in Madzikanda [supra] regarding
separation of the determination of validity of suspension from employment and
determination of whether a suspension or dismissal affects the benefits enjoyed
by the employee. It would be desirable to have a one stop shop for all labour
related issues. That simply is not the position at law and will remain so until
the legislature has decided otherwise.
I am going to deal with the matter without regard to
what is happening at the Labour Court. The application is properly before the
court.
The rei vindicatio is a common law remedy which is
based on the principle that an owner is entitled to recover his property from
whoever may possess it without his consent. See Chetty v Naidoo 1974
(3) SA 13. The same principle was enunciated in Mashave vStandard
Bank of South Africa Ltd 1998 (1) ZLR 436 (S) where McNALLY JA stated that
the law protects the right of an owner to vindicate his property and "as a
matter of policy favours him as against an innocent purchaser".
The same principles governing the law of vindication were
outlined in Oakland Nominees Ltd v Gelria Mining & Investment
Co Ltd 1976 (1) SA 441 (A) at 452A where the court remarked as follows:-
"Our law jealously protects the right of ownership and
the correlative right of the owner in regard to his property, unless, of course
the possessor has some enforceable right against the owner." See also
Grosvenor Motors (Potchefstroom) Ltd vDouglas 1956 (3) SA 420 (A)
and Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262
where the court in dealing with the question of onus remarked as follows,
“The owner may claim his property wherever found, from
who-so ever is holding it. It is inherent in the nature of ownership that
possession of the rei should normally be with the owner and it follows that no
other person may withhold it from the owner unless he is vested with some right
enforceable against the owner (e.g. a right of retention or a contractual
right). 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” See also Unimark Distributors (Pvt)
Ltd vEFR 94, Silvertondale (Pvt) Ltd 1999
[2] SA 986 where the following sentiments touching on the respondent's defence
appear,
“It is inherent in the in the nature of ownership that
possession of the res should normally be with the owner and it follows that no
other person may withhold it from the owner unless he is vested with some
rights enforceable against that owner, e.g. right of retention or a contractual
right”
An applicant seeking to rely on the rei vindicatio must
prove the following,
1. That he is the owner of the property, See Jolly
Shannon and Anor 1998 [1] ZLR 78
2. That at the commencement of the action, the thing sought
to be vindicated was still
in existence and the respondent was in possession of the property, See Masuli
v Jera HH 67/07
3. That the respondent's possession is without his consent,
See Stanbic Finance Zimbabwe (supra)
It is common cause that the vehicle in issue is owned by
the applicant and the respondent possesses the vehicle without its consent. The
respondent' term of employment has been terminated. He is only entitled to hold
onto the vehicle upon establishing a defence that entitles him to continue
holding onto the vehicle The onus is on the respondent to allege and establish
the right to continue holding onto the vehicle. The respondent contends that
he is entitled to purchase the vehicle in terms of the motor vehicle scheme
negotiated at the time he was employed. The respondent avers that in the first
three years of his employment he used his own vehicle and the applicant paid
all running costs. That he was issued with the vehicle in terms of his contract
of employment in June 2010 and only used the vehicle for two years. He contends
that his contract of employment entitled him to purchase the vehicle and
further that the years during which he used his personal vehicle are part and
parcel of the five years, thus entitling him to purchase the vehicle. Clause 6
of his letter of appointment reads as follows:
“Company Car; An executive car to be
provided in terms of the company's Management Car Scheme which the CEO is
expected to develop and operationalize in respect of all managers”
The clause entitles him to use of a company vehicle only
and makes no reference to purchase.
The respondent was in terms of his contract required to
develop a vehicle scheme.The respondent has produced a motor vehicle scheme
which he avers he developed. The applicant contends that he failed to produce
one. The applicant disputed the existence of the undated scheme produced
which it claims is fictitious and a fraud and contends that it was
created only for purposes of this application. The respondent has asked
this court to dismiss the application and refer it to trial on the basis of the
existence of a material dispute of fact over the existence of the vehicle
scheme. The court is only required to refer a matter for trial where material
disputes of facts exist and it cannot resolve the dispute on the papers
before it. I am going to take a robust approach and resolve the issue on the
papers before me. I will examine the scheme and determine if the respondent was
in terms of that scheme entitled to purchase the vehicle.
Clause 4 and 5 of the scheme reads as follows;
“4. Depreciation Except when directed by the board
otherwise or in specific contractual circumstances vehicles will be depreciated
over a five year period. At the end of the said period, the employee will be
entitled to purchase the vehicle at the residual value, being ten percent of
original cost”.
5.Transitional provisions
Where the company is not yet in a position to provide
a vehicle ,the eligible employee will be paid for both capital and
running expenses for use of their personal vehicles on the same terms and
conditions as provided in this motor vehicle scheme.”
The gist of these clauses is firstly that the employee
is required to purchase the vehicle at the end of five years. The vehicles
would be depreciated over a five year period. Secondly clause 4 presupposes
that the incumbent will be required to have driven the vehicle for 5 years
before he can purchase it. That vehicle had not been depreciated over a five
year period. There was no direction by the board waiving this requirement to
sell the vehicle before the 5 years had elapsed. The applicant drove the
vehicle for just two years and is not in terms of clause 4 entitled to purchase
the vehicle. The transitional provisions make provision for payment of
capital and running expenses where the company is not in a position to
provide a vehicle. There is no provision that the period over which an
employee would have driven his own vehicle would be taken into account for
purposes of calculating the five year period. He was paid his capital and
running expenses and was therefore adequately compensated. Reference under
clause 5 to the effect that such employee would be entitled to capital
and running expenses “on the same terms and conditions as provided for in this
motor vehicle scheme'' refers to clause 6 which deals with payment of car
maintenance allowances and other running costs.
.
The respondent has not been able to point to any right or entitlement to the
car. The applicant is entitled to the return of its vehicle. The respondent
therefore has no basis to continue holding onto the vehicle.
In the result it is ordered as follows;
1. THAT the Respondent be and
is hereby ordered, within 24 hours of the grant of this order (or of service of
this order on him) to deliver the Applicant's motor vehicle, to wit, a Mercedes
Benz Registration number ABP 7891, to the Applicant at its premises, at 20647
Masanga Road, Chitungwiza.
2. That in the event of the
Respondent failing to comply with Paragraph 1 hereof, the Deputy Sheriff for
Harare be and is hereby ordered, authorized and required, to seize the
aforesaid motor vehicle from Respondent, or from whomsoever and wherever it be
found, and to deliver same to the Applicant at the aforesaid
premises.
3. That in the execution of
the provisions of Paragraph 2 above, the Deputy Sheriff be and is hereby
authorised to enlist the services and/or assistance of the Zimbabwe Republic
Police and/or any other service providers as he may deem necessary.
4. That the costs of this
application, together with any costs attendant upon giving effect to this
order, shall be paid by the Respondent.
Muzangaza Mandaza & Tomana, applicant's legal practitioners
Matsikidze
& Mucheche, respondent's legal practitioners
