The
plaintiff is the Central Bank of Zimbabwe, constituted in terms of
the Reserve Bank of Zimbabwe Act [Chapter 22:15]. It is headed by a
Governor, who, at the material time, had created a post of Advisor to
the Governor, a post not provided for in the Reserve Bank Act which
provides for the appointment of not more than two Deputy Governors,
but created all the same, whose incumbent was one Dr Munyaradzi
Kereke.
The
position of Advisor to the Governor enjoyed a lot of autonomy, what
with a fleet of three (3) pool motor vehicles in its stable and
drivers for those vehicles employed by the plaintiff, but under the
control of the Advisor, who also wielded significant authority,
including the authority to hire a driver in his personal capacity.
Although such driver was not on the payroll of the plaintiff, the
Advisor was entitled to allow him access to all the motor vehicles
within his stable belonging to the plaintiff.
The
defendant was one such driver in the office of the Advisor, employed,
initially, by the plaintiff, but, after his retrenchment at the end
of January 2011, he retained that position at the pleasure of the
Advisor.
When
the time came for the plaintiff to retrench some of its employees,
and having sought and obtained authority to do so, the Governor wrote
to the affected employees a letter dated 7 January 2011 advising them
of that eventuality and the process that was to be followed to
achieve the outcome. The defendant was a recipient of that letter and
it stated in part:
“Dear
Mr Maturure Privilege
RE:
Termination of Contract of Employment through Retrenchment
1.
In line with the provisions of section 12C of the Labour Act No.17 of
2002 covering the above subject, and the Labour Relations
(Retrenchment) Regulations, Statutory Instrument 186 of 2003; Notice
was given to the Works Council that staff who wanted to go on
voluntary retrenchment were to present their names to management.
This has since been done. Some members of staff would be put on
involuntary retrenchment for re-alignment purposes. This too has been
done.
2.
Approval has been received in respect of the total package from: The
Reserve Bank of Zimbabwe Board; The Works Council; The Ministry of
Public Service, Labour and Social Welfare.
3.
Regrettably, you are one of the candidates identified for
retrenchment by your Divisional Management, so that, in line with the
new Board's approved structure,
the Bank can focus on its core objectives.
4.
You are requested to kindly get in touch with the Human Resources
Division to be advised of your total package details before the end
of day on Friday the 14th of January 2011 in order to facilitate the
release of your first entitlement of the package and to re-confirm
your payment account details.
5.
In the interest of good order, and in compliance with the law, you
are required to sign an Acknowledgement Form, which is the basis upon
which such fiscal entitlement as the retrenchment tax-free thresholds
allowance can be availed to you and tax returns submitted to ZIMRA.
6….,.
7….,.
8….,.”
The
defendant complied with the provisions of the retrenchment letter. He
attended at the Human Resources Division and signed the
Acknowledgment Form. He also completed a clearance form with the
various departments of the plaintiff which set out the details of the
employer's property he was surrendering.
At
the Transport Division it was endorsed that the motor vehicle he had
been using was “being used in Advisor's office.”
I
have already stated that after retrenchment the defendant continued
in the employ of the Advisor, in a private arrangement between them,
and continued using the motor vehicle which had been assigned to him
before, namely, a Toyota Hilux Vigo registration number ABD 7870
(“the vehicle”), which, at separation, it had been accounted for
as “being used in Advisor's office.”
When
the office of the Advisor was abolished or became vacant with the
departure of Dr Kereke, at the end of January 2012, the plaintiff
demanded the return of the vehicle.
The
dispute then arose because the defendant lay a claim to it as his
retrenchment package and refused to surrender the vehicle.
The
parties could not resolve the dispute, as a result, the plaintiff
instituted this action seeking an order compelling the defendant to
return the vehicle, damages for unlawful use and deprivation of the
vehicle from 9 February 2012 and punitive costs.
In
its declaration, the plaintiff averred that the vehicle had been
issued or assigned for use in the Advisor's office where the
defendant was attached as a driver. It was in that capacity that the
defendant had access to use the motor vehicle which remained the
property of the plaintiff. The office of the Advisor having become
vacant, upon termination of his contract, the plaintiff was entitled
to the return of the vehicle for re-deployment.
In
response, the defendant asserted that he is the owner of the vehicle;
it having been given to him as a retrenchment package in terms of the
parties agreement of 7 February 2011. For that reason he has been in
lawful possession of the vehicle and the plaintiff has not suffered
any damages.
The
defendant counter claimed seeking payment of his outstanding
retrenchment package and the delivery to him of the vehicle's
registration book.
I
must mention that the defendant's claim for his outstanding
retrenchment money was disposed of in a judgment relating to a point
taken in limine handed down on 2 April 2014 (HH152-14).
The
issues that I still have to decide are:
1.
Whether the vehicle was awarded to the defendant as part of his
retrenchment package in terms of the Acknowledgement Form as read
with the letter of the Governor dated 7 January 2011.
2.
Whether the defendant should surrender the vehicle to the plaintiff;
and
3.
Whether the plaintiff has suffered damages as a result of the
defendant's refusal to surrender the vehicle for which the
defendant is liable and the quantum thereof.
The
plaintiff's case was presented through the evidence of its head of
Human Resources Division, Elliot Short Rwatirera, who has been so
employed for 14 years, and its Senior Executive Support Services,
Francis Tamanikwa.
That
evidence is simple and straight forward. It is to the effect that the
defendant was employed by the plaintiff as a driver, Grade 3, and was
assigned to the office of the Advisor to the Governor, Dr Kereke. He
was not entitled to a personal issue vehicle, but, in the discharge
of his duties, he had access to three (3) pool vehicles belonging to
the plaintiff which were attached to the office of the Advisor.
When
the defendant was retrenched, at the end of January 2011, his
retrenchment package did not include a motor vehicle. Motor vehicles
were given to managerial employees at head level and above. In that
regard, they determined the net book value of the vehicle in the
possession of that employee which would have been allocated to that
employee during the subsistence of the employment contract. Having
determined the net book value, the plaintiff offered the vehicle to
that employee indicating the net book value on the exit package and
the calculated figure would reflect the amount due to the retrenchee
taking into account the vehicle offered.
Elliot
Short Rwatirera testified that everybody who was entitled to a motor
vehicle received, from the plaintiff, a document to take to ZIMRA for
change of ownership. He gave an example of one issued to L. Chari who
was offered a Nissan Wolf Double Cab vehicle. The document reads:
“31
January 2011
Dear
L. Chari
Please
be advised that, in line with the retrenchment formula, you are being
offered the following vehicles(s) at the indicated net book value,
NBV. Reg No. Model/Make Year NBV (USD) AAN 9631 Nissan Wolf 3.0
Double Cab 2006 $0-00. The amount is payable to the Reserve Bank of
Zimbabwe and shall be deducted from your total retrenchment package
and back pay that is due to you. Please note that if your total
retrenchment package plus backpay is less than the value of the
vehicle(s) above you shall be obliged to pay the Bank the balance by
the date of your receipt of final payment from the Bank. Please be
guided accordingly.
Elliot
Rwatirera
Senior
Executive – Human Resources Management”
Elliot
Short Rwatirera explained that such standard letter was given to any
retrenchee being offered a vehicle they were using even if the
vehicle was being offered at zero value. In addition, the vehicle and
its zero value would reflect on such retrenchee's Retrenchment
Package Advice. Where there was a net book value, as was the case
with another example given, that of O. Kanyimo, the document would
show the value which would be deducted from money due to the
retrenchee.
The
defendant did not receive any such documents; his Acknowledgement
Form did not cite any vehicle details and his retrenchment advice did
not make reference to any vehicle simply because he was never offered
a vehicle.
Elliot
Short Rwatirera stated that the defendant was a Level 3 grade, the
lowest level of managerial employees at the Bank, which level was not
entitled to Bank vehicles as part of their employment contracts, and,
in that regard, they were not offered Bank vehicles.
He
made reference to what he said was a Standard Acknowledgement Form
signed by all managerial staff showing the details. In respect of the
defendant, he signed it on 7 February 2011. Under the column dealing
with vehicle, it simply showed the terms under which an employee
entitled to a vehicle would be offered such vehicle, that is, if the
vehicle was more than 5 years old, they would “drive out” without
paying anything. If it was less than 5 years, the plaintiff would
calculate the net book value. No details of a vehicle were inserted
in the defendant's Acknowledgement Form because he was not entitled
to any vehicle.
Again,
the separation clearance form which the defendant signed showed that
he did not surrender the vehicle he had been using because it
remained “being used in Advisor's office.” That shows that he
was not offered the vehicle which he continued using in the Advisor's
office at the pleasure of the Advisor, although it remained firmly
the property of the plaintiff.
The
witness also alluded to the defendant's “Retrenchment Package
Advice” dated 23 August 2011, which, unlike that of Chari, did not
contain any reference to a vehicle whatever its value; again,
emphasizing the fact that the defendant did not have the vehicle as
his retrenchment package.
Even
the ZIMRA application for a tax deduction directive form for the
defendant, which he produced, made no reference to a motor vehicle.
He was not given any document for change of ownership of the vehicle
as no vehicle was offered to him.
The
witness went on to say that after the defendant's retrenchment, the
vehicle continued being fuelled and serviced by the plaintiff in
recognition of the fact that it belonged to the plaintiff. He
produced fuel requisition forms and service records showing that it
was serviced by Harare Toyota and Croco Motors during the time it was
in use at the Advisor's office - long after the defendant had been
retrenched. If the vehicle had ceased to belong to the plaintiff it
would not have been fuelled weekly and serviced regularly at the
plaintiff's expense. The plaintiff does not do that to individuals'
vehicles.
He
stated that when Dr Kereke left employment he was asked to surrender
the vehicle along with that which was being used by another attaché
of his, P. Sibanda. He scribbled a response:
“MR
MANASE
(1)
Please take note:
(a)
Mr Sibanda (ZRP) will bring vehicle today.
(b)
Mr Maturure is not a Bank Employee. He was retrenched last year
(2011).
Thank
you.
M.
Kereke 8/2/12”
That
response was not helpful at all as it did not deal with the status of
the vehicle.
Francis
Tamanikwa, who heads the Transport Division, re-iterated what Elliot
Short Rwatirera said in his evidence producing the registration book
showing that the vehicle belongs to the plaintiff and affirming the
service history and the fuelling of the vehicle while it was being
used by the defendant when he was privately employed by Dr Kereke. He
maintained that it was a pool vehicle used for the day to day running
of the Advisor's office.
The
two (2) gentlemen who testified on behalf of the plaintiff gave their
evidence extremely well supported by documentation which they
explained very clearly. In the process they made up a very good and
clear case for the plaintiff in respect of ownership of the vehicle.
What they failed to do, though, is justify the claim for damages.
They
only stated that the claim for damages is based on a quotation
obtained from Europcar on 3 August 2012 to the effect that they were
hiring out a Mazda BT50 motor vehicle at the time at a daily rate of
$109.
As
to how this relates to the use of the vehicle, itself a Toyota Vigo,
by the defendant and what mileage the use related to, they did not
say. That evidence does not assist me to assess what loss the
plaintiff has suffered as a result of the defendant's refusal to
surrender the vehicle.
Try
as he could, the defendant could not rebut the evidence given on
behalf of the plaintiff. In fact, the defendant did not make a good
witness at all. He stammered, stattered, and, in the end, he could
not show where in the retrenchment documents it says he was given the
vehicle as a package.
Asked
to show where, in the Acknowledgement Form he signed on 7 February
2011, a document he claimed is the basis of his claim to the vehicle,
he could not. He only cited the column of a vehicle which column, as
I have said, does not identify any vehicle but appears to contain
only terms upon which vehicles were offered. It does not offer him
any vehicle. The defendant maintained that he was given the vehicle
although he could not place a finger on anywhere in the retrenchment
documents where he is given the vehicle.
Comically,
he stated that there is nowhere in the documents where it says he is
not entitled to the vehicle - a clear case of putting the cart ahead
of the horse.
While
conceding that those who were offered vehicles were given documents
to that effect for change of ownership, the defendant insisted that
he is still waiting for his own similar document.
The
defendant stated that after his retrenchment he was employed,
privately, by Dr Kereke at his butchery although he still reported at
the plaintiff's offices and that he was using “his” vehicle in
carrying out Dr Kereke's errands. In return, he was being assisted
with school fees for his children. He could not explain why he was
using what he regarded as his personal vehicle to conduct Dr Kereke's
business and why his personal vehicle was fuelled and serviced at the
plaintiff's expense all the time.
I
was not impressed by the defendant as a witness and he simply did not
make out any discernible case at all. His story was so incoherent it
became difficult to think that he wanted to be taken seriously.
For
instance, when quizzed under cross examination about the contents of
the Separation Clearance Form which recorded that he was not
surrendering the vehicle because it continued being used at the
Advisor's office, he could only say that according to the
Acknowledgement Form he signed, he had already been given the vehicle
and that the Separation Form only allowed him to enter the
plaintiff's premises with it while conducting Dr Kereke's private
business.
Nothing
can be furthest from the truth.
In
my view, the defendant is engaging in a futile exercise because the
Acknowledgement Form he anchors his claim on does not support his
case. Quite to the contrary, all the documents produced in court
point to one direction, namely, that the motor vehicle is registered
in the plaintiff's name. It was used by the defendant during and
after his employment in the furtherance of the plaintiff's affairs
as he was serving under the Advisor. When he was retrenched he was
not offered, and certainly did not accept, the vehicle as his
retrenchment package. When the office of the Advisor became vacant,
the defendant simply engaged in a smash and grab exercise making off
with the vehicle belonging to the plaintiff and refused to return it
without any justification.
The
plaintiff has brought this matter as an actio rei vindicatio, the nub
of which is that an owner of a property, be it movable or immovable,
is entitled to reclaim possession of his property from whomsoever is
in possession of it.
It
is inherent 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
enforceable right against the owner like the right of retention or a
contractual right. Chetty v Naidoo 1974 (3) SA 13 (A)…, where
JANSEN JA said:-
“The
owner, in instituting a rei vindicatio, need therefore do no more
than allege and prove that he is the owner and 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.”
In
our jurisdiction, that pronouncement was quoted with approval in
Hamtex Investments (Pvt) Ltd v King HH403-12; Agrochem Dealers (Pvt)
Ltd v Gomo & Ors 2009 (1) ZLR 255 (H); and in Alspite Investments
(Pvt) Ltd v Westerhof 2009 (2) ZLR 226 (H) where…, MAKARAU JP…,
said:-
“There
are primarily two defences to the rei vindicatio, each aimed at
destroying each of the two essential elements of the action.
The
first one seeks to destroy the claim of ownership completely by
denying that the plaintiff is the owner of the property in question
or seeks to diminish his rights in the property by admitting his or
her ownership but by alleging that the plaintiff has parted, under
some recognised law, with the right to exclusive possession of the
property.
The
second defence, of course, is to deny possession of the property at
the time the action is brought or the claim is instituted.”
I
have stated that the evidence led shows that ownership of the vehicle
lies with the plaintiff. It would ordinarily therefore be entitled to
vindicate against the whole world, and, indeed, the defendant, unless
the latter can sustain any of the two (2) defences alluded to by
MAKARAU JP…, in Alspite Investments (Pvt) Ltd v Westerhof 2009 (2)
ZLR 226 (H).
The
defendant has admitted possession. He would, therefore, survive the
implications of a rei vindicatio by either destroying the claim to
ownership or showing a diminished right of ownership.
In
my view, the defendant has dismally failed to sustain any defence. He
has not shown that he was awarded the vehicle as part of his
retrenchment package in terms of the Acknowledgement Form that he
signed at his retrenchment. He has not pointed to any other basis
upon which ownership could have transferred to him or curtailed. I
conclude, therefore, that the plaintiff is indeed entitled to
vindicate against the defendant who has no choice but to surrender
the vehicle.
Regarding
the second leg of the plaintiff's claim, I have already said that
the plaintiff has not proved its entitlement to a recognisable figure
in the form of damages.
While
the plaintiff is entitled to some form of compensation for the
unauthorised use of its vehicle, it still bears the onus to prove the
quantum of such compensation. Having failed to come up with an
acceptable formulae for computing the damages, I am unable to accede
to the prayer for damages which remains unproven.
Regarding
the claim for costs on the legal practitioner and client scale, the
plaintiff has not established an entitlement to these. It cannot be
said that the defendant's resistance of the claim was outrageous in
the circumstances especially as the plaintiff's conduct of allowing
a non-employee to drive its vehicle under the watch of Dr Kereke for
over a year may have led the defendant down the garden path.
In
the result, IT IS ORDERED THAT:
1.
The defendant shall forthwith deliver to the plaintiff the Toyota
Hilux Vigo motor vehicle registration number ABD7870.
2.
The defendant shall bear the costs of suit on an ordinary scale.
