This
is an application for the return of the applicant's motor vehicles
that it had issued to the respondents during the tenancy of their
employment with the applicant.
The
two respondents were employed by the applicant as Group Accountant
and Branch Accountant respectively until 31 October 2015 when their
services were terminated on notice. During the tenancy of their
employment contracts, the respondents had been issued with motor
vehicles for both business and private use on terms set out in their
contracts as read with the applicant's motor vehicle policy.
The
first respondent was issued with a Nissan Qushquai Registration No.
ACX 4888 and the second respondent was issued with a Nissan Almera
Registration No. ACU 6164. They were both obliged to return the motor
vehicles upon termination of their contracts of employment.
When
their contracts were terminated, on 31 October 2015, both respondents
did not return the vehicles. Instead, they filed a complaint of
unfair dismissal against the applicant. Their effort in that
direction was unfruitful as the Labour Court, on the 23rd
of
September 2016, held that the applicant was entitled to terminate the
contracts on notice, and, instead, ordered that the respondents be
paid compensation for loss of employment in terms of section 12(4b)
as read with section 12C(2) of the Labour Act [Chapter
28:01]
as amended.
Neither
respondent appealed against the Labour Court judgement hence that
decision remained extant to this day.
Despite
not having appealed against the Labour Court judgment, the
respondents refused to surrender the applicant's motor vehicle. It
was, in such circumstances, that the applicant approached this court
in this application seeking an order in the following terms:-
1.
The respondents shall surrender to the applicant, or its authorised
representative, a Nissan Qushquai registration No. ACX 4888 and a
Nissan Almera registration No. ACU 6164, respectively, within 24
hours of service of this order.
2.
Should the respondents fail or refuse to surrender the said vehicles,
the Sheriff be and is hereby authorised to utilise the services of
the police to repossess the said vehicles.
3.
The respondents shall pay the costs of this application on a legal
practitioner and client scale.
Upon
being served with the application, the second respondent duly
surrendered the vehicle that had been allocated to him. The first
respondent, on the other hand, opposed the application.
The
first respondent contended that after being appointed as Branch
Accountant, on 1 March 2009, he was subsequently appointed Company
Secretary for another company, Clover Leaf Panel Beaters (Pvt) Ltd
(herein after referred to as CLPB) which appointment was made before
he had completed his probation period with the applicant. This was
done without cancelling his appointment as Branch Accountant with the
applicant. The appointment as Company Secretary was, however, verbal.
He averred that the applicant and Clover Leaf Panel Beaters (Pvt) Ltd
are two different companies but with common ownership. When he was
promoted to the position of Group Accountant he also continued as
Company Secretary for Clover Leaf Panel Beaters (Pvt) Ltd (CLPB).
He
further contended that when the vehicle was issued to him, he used it
to carry out duties for the two companies. Upon termination of his
contract with the applicant, he retained the vehicle as his terms of
contract with Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB)
also entitled him to a motor vehicle. According to the first
respondent, it was not clear as to which company had issued him the
vehicle.
In
the light of the purported employment by Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB),
the first respondent contended that the present application is
fatally defective for non-joinder of Clover
Leaf Panel Beaters (Pvt) Ltd as
applicant was well aware of his issue with Clover
Leaf Panel Beaters (Pvt) Ltd.
It
is my view that this point in
limine
was without merit. The applicant made it clear, in its founding
affidavit, that Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) was its
subsidiary and that by virtue of being the Group Accountant, the
first respondent was required to provide secretarial duties to Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB). It was part of his duties and
not that he was now separately employed by that subsidiary
company….,.
It
may also be noted that, in terms of Rule 87(1), the non-joinder of a
party is not fatal. Rule 87(1) states that:
“No
cause or matter shall be defeated by reason of the misjoinder or
non-joinder of any party and the court may, in any cause or matter,
determine the issues or questions in dispute so far as they affect
the rights and interests of the persons who are parties to the cause
or matter.”
In
casu,
the issue between the applicant and the first respondent can easily
be decided without the involvement of Clover Leaf Panel Beaters (Pvt)
Ltd (CLPB).
A
further point in
limine
raised was that the applicant is approaching court with dirty hands
as it has not paid the first respondent his terminal benefits in
terms of section 13 of the Labour Act [Chapter
28:01].
It
is my view that the principle of dirty hands is inapplicable in the
circumstances of this case.
The
first respondent himself has been in unlawful possession of the
applicant's motor vehicle from the date of termination of
employment. The applicant has not refused to release the terminal
package but has simply asked the first respondent to surrender the
applicant's motor vehicle. It is the attitude of the first
respondent that led to the delay in the payment of his terminal
benefits, and, in my view, he cannot turn around and seek to benefit
from his own intransigent attitude.
These
points in
limine
were thus without merit and are accordingly dismissed.
In
his response on the merits, the first respondent admitted that his
contract with the applicant was terminated on 31 October 2015. He
however contended that he has a right of retention of the motor
vehicle by virtue of the fact that he is still employed by Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB).
He nevertheless conceded that he has not been providing any services
to the applicant or to Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB)
since the date of termination of contract.
Upon
a perusal of the papers filed of record, with the exception of a
purported answering affidavit as it was fatally defected, I was of
the view that the first respondent is desperately clutching at straw.
It
is trite that an owner of a property is entitled to vindicate it from
whoever is in possession thereof without his consent. In Chetty
v Naidoo
1974 (3) SA 13 (A)…, it was aptly stated that:-
“It
is inherent in the nature of ownership that possession of the res
should normally be with the owner unless he is vested with some right
enforceable against the owner (eg. a right of retention or
contractual right).”
In
Nyahora
v CFI Holdings (Pvt) Ltd
2014 (2) ZLR 607 (S)…, ZIYAMBI JA aptly reiterated the legal
position as follows:-
“The
action rei
vindicatio
is available to an owner of property who seeks to recover it from a
person in possession of it without his consent. It is based on the
principle that an owner cannot be deprived of his property against
his will. He is entitled to recover it from anyone in possession of
it without his consent. He has merely to allege that he is the owner
of the property and that it was in the possession of the
defendant/respondent at the time of commencement of the action or
application. If he alleges any lawful possession at some earlier date
by the defendant then he must also allege that the contract has come
to an end. The claim can be defeated by a defendant who pleads a
right of retention or some contractual right to retain the property.”
See
also Jolly
v Shannon
1998 (1) ZLR 78 (H) and Arundel
School Trust v Pettigrew
2014 (1) ZLR 596 (H) and Musanhi
v Mt Darwin Rushinga Co-operation Union
1997 (1) ZLR 120 (SC).
In
the present case, the applicant alleged it is the owner of a motor
vehicle in the first respondent's possession. Such possession came
about as a result of a contract of employment which contract was
terminated on 31 October 2015. The motor vehicle had been issued to
the first respondent in terms of the contract of employment, in
particular clause 19 which provided that:-
“You
shall be allocated a company vehicle for business and private use.
All private trips outside the radius of 60km from your official
residence should be authorised by the Managing Director.”
The
first respondent having been issued with the motor vehicle in terms
of the above contract was required to return the vehicle upon
termination of the contract.
In
Zimbabwe
Broadcasting Holdings v Gono
2010 (1) ZLR 8 (H)…, GOWORA J…, made this point clear in stating
that:-
“Our
law 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
1992 (2) ZLR 324 (S) 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' 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.'
I
respectively associate myself with the remarks of the learned Chief
Justice.”
The
above epitomises the situation that should obtain upon termination of
employment between employer and employee vis-a-vis
benefits that were being enjoyed by the employee prior to the
termination. It is unfortunate that the plethora of case authorities
on this subject has not deterred litigants from clinging onto what
should rightfully be returned to the employer.
Where,
as in this case, a right of retention is pleaded, the onus is on the
respondent to show that he enjoys such a right. The respondent must
establish such right and its basis.
The
first respondent's contention was to the effect that his right of
retention is derived from the fact that besides being employed by the
applicant he had also been employed by Clover Leaf Panel Beaters
(Pvt) Ltd (CLPB) as Company Secretary and this employment was not
terminated. He averred that when he was issued with the motor vehicle
it was not clear which company had issued him the motor vehicle. He
thus used the vehicle to perform duties for both companies.
This,
in my view, is a lame excuse for the continued possession of the
vehicle despite the owner's demand for its return. The applicant
made it clear that the first respondent was employed by it and his
duties, as Group Accountant, included providing secretarial duties to
Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB).
Clover
Leaf Panel Beaters (Pvt) Ltd
is, in fact, a subsidiary of the applicant.
This
fact is further confirmed by the fact that the first respondent's
remuneration was paid by the applicant; hence, when the contract was
terminated, no remuneration was paid to the first respondent. Also,
the first respondent ceased providing secretarial services to Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB)
upon termination of the contract with the applicant.
This
position was also made abundantly clear to the first respondent in a
letter dated 27 November 2015 by the applicant's legal
practitioners when responding to the first respondent's inquiry
through Likbridge Consultancy Services. In their letter of 27
November 2015, the applicant's legal practitioners stated, inter
alia,
as follows:-
“We
refer to your letter dated 21st
November 2015 addressed to the Human Resources Manager for Clover
Leaf Motors. We advise that your said letter was handed to us with
instructions to respond to its contents.
We
note that in its response to your earlier letter our client's Human
Resources Manager explained that the secretarial duties that Mr
Butholezwe Zhou was carrying out for Clover Leaf Panel Beaters were
actually part of his employment duties as the Group Accountant for
Clover Leaf Motors. With respect, this is more than adequate
explanation on why and how such services would be automatically
terminated once the employment contract has come to an end.”
The
first respondent seemed to confirm this when he conceded that he was
never remunerated for the Clover Leaf Panel Beaters (Pvt) Ltd (CLPB)
secretarial duties. Unlike his appointment as Branch Accountant, on 1
March 2009, and appointment as Group Accountant, the so-called
appointment as Company Secretary for Clover Leaf Panel Beaters (Pvt)
Ltd (CLPB) was done verbally. In fact, he never applied for such a
position in Clover Leaf Panel Beaters (Pvt) Ltd. This buttresses the
applicant's argument that the secretarial duties the first
respondent was performing for Clover Leaf Panel Beaters (Pvt) Ltd
(CLPB) were in fact part of his duties as the Group Accountant. This
entity called Clover Leaf Panel Beaters was a subsidiary of the
Clover Leaf Motors.
It
may also be noted that the first respondent did not categorically
deny that he was issued the vehicle by the applicant. He simply said
it mattered little, if at all, who between the
applicant and Clover
Leaf Panel Beaters (Pvt) Ltd (CLPB)
would provide the motor vehicle, and, further, that “there was no
clarity as to by whom I was given the motor vehicle.”
The
first respondent was simply being untruthful as he should surely have
known that it was the applicant that had issued him the motor vehicle
in terms of Clause 19 of the contract of employment he had signed.
In
any case, the first respondent admitted, in his opposing affidavit,
that he had in fact offered to buy the vehicle from the applicant at
some point. If he did not know the owner or if the applicant was not
the owner, how could the first respondent offer to buy the vehicle
from a non-owner?
I
am convinced that the first respondent feigned ignorance on this
point simply to protract his continued hold onto the motor vehicle.
The
first respondent further contended that he has a right of retention
of the motor vehicle based on the fact that he has not been paid his
terminal benefits as stipulated in section 12C(2) of the Labour Act
[Chapter 28:01].
This
argument is also without merit.
It
is common cause that after the applicant had terminated the first
respondent's contract, as at 31 October 2015, the first respondent
was enjoined to surrender the vehicle as of that date. His retention
and use of the motor vehicle thereafter was unlawful. The first
respondent's challenge of the termination did not entitle him to
the continued use of the vehicle. See Chisipite
Schools Trust (Pvt) Ltd v Clark
1992 (2) ZLR 324 (S).
The challenge of the termination had the effect of delaying the
release of the terminal benefits as the first respondent was
challenging it.
The
applicant, on the other hand, had to await the outcome of the first
respondent's challenge of the termination which was only finalised
on 23
September
2016. In the meantime, the applicant had called on the respondent to
surrender the vehicle to no avail.
In
their letter of 9 January 2017, addressed to the first respondent's
legal practitioners, the applicant's legal practitioners reiterated
the applicant's readiness to release the terminal benefits upon the
respondent surrendering the vehicle. Paragraph 3 of that letter reads
as follows:
“We
hereby place it on record that your client's termination packages
are available and the only reason they have not been released is the
vehicles that they have continued to unlawfully hold on to. In the
circumstances, your clients are hereby ordered to bring the said
vehicles within twenty four (24) hours of this letter to facilitate
an inspection of the same before the release of the terminal packages
due to them in terms of the Labour Act.”
When
the parties appeared before me for the hearing, the applicant's
counsel made it very clear that his client was ready and able to pay
the terminal benefits in terms of the Labour Act but would want the
first respondent to produce the vehicle for inspection as he has been
unlawfully holding on to the motor vehicle for a long time.
Counsel
for the parties agreed to seek inspection of the vehicle by a third
party.
Unfortunately,
nothing came of this as the first respondent would not abide by what
the legal practitioners had conceded was an amicable way of resolving
the issue.
It
was clear to me that the first respondent, despite unlawfully holding
onto the motor vehicle, was not intent on resolving the issue. This
then exposes his dilatory attitude by raising frivolous and vexatious
issues as defences to the application.
The
lack of bona
fide
on
the part of the first respondent made it imperative that the
applicant first be assured that the vehicle was still available and
on its state before releasing the terminal benefits to the first
respondent. That stance is reasonable in the circumstances of this
case. If the first respondent was sincere he would surely have
surrendered the motor vehicle and been paid his terminal package
without much ado.
After
hearing the parties and considering the merits of the application, I
am of the view that the first respondent's opposition has no merit.
The opposition was not bona fide at all but was meant to frustrate
the applicant in recovering its vehicle. It was an abuse of court
process warranting censure. He clearly is unlawfully holding on to
the applicant's motor vehicle. He simply has no defence and has
unnecessarily caused the applicant to bring this application at great
expense. It is only proper that the first respondent be ordered to
pay costs on the higher scale of legal practitioner and client scale
as requested by the applicant.
Accordingly,
it is hereby ordered that:
1.
The first respondent shall surrender to the applicant, or its
authorized representative, a Nissan Qushquai motor vehicle
registration number ACX 4888 within twenty four (24) hours of the
service of this order.
2.
Should the first respondent fail or refuse to surrender the said
motor vehicle, the Sheriff be and is hereby directed to repossess the
said motor vehicle and deliver same to applicant.
3.
The first respondent shall pay costs of this application on a legal
practitioner and client scale.
