This
is an action for the vindication of the plaintiff's vehicle. The
salient features of this action may be summarised as follows:
The
plaintiff is the registered owner of a Toyota Land Cruiser
registration no. ACF 1290. The defendant was appointed a
non-executive Chairman of the plaintiff's Board of Directors since
2006. He was allocated the above referenced vehicle for his use in
July 2011, a month before he was removed from the plaintiff's
Board. Upon his removal as chairperson, the defendant did not return
the motor vehicle and has refused to return the vehicle to the
plaintiff.
The
plaintiff called its Company Secretary, Mr Tembelani Kohle Ncube, as
its only witness. His evidence is summarized as follows:
The
plaintiff is the owner of the Toyota Land Cruiser in issue. The
defendant has possession of the vehicle which was allocated to him as
non-executive chairperson of the plaintiff's Board of Directors. He
was allocated the vehicle to use for both business and private
purposes during his tenure of office. The defendant has been removed
as the chairperson of the plaintiff and he is not entitled to possess
the vehicle. He is not aware of any policy or resolution which
entitles former Board chairpersons and members to retain vehicles
issued to them. The chairperson is issued with a vehicle he uses in
terms of a Board resolution. The motor vehicle policy available
covers executive, middle managers, and employees, other than
directors, who are entitled to motor vehicles in terms of their
employment contracts. The defendant was previously issued two
Mercedes Benz vehicles and a Toyota Prado and these were returned to
the pool when he was allocated a new car. The defendant returned
these vehicles because he had a replacement vehicle. The defendant
was not entitled to retain the vehicle when he ceased to be a Board
member or non-executive Chairperson. A Board meeting of 11 December
2012 resolved that the incumbent chairperson purchase his vehicle and
it is specific to that incumbent chairperson. When the defendant was
in office, there was no such policy and the company would retain the
vehicle.
The
witness was not aware of any non-executive Director, before the
defendant, who retained his official vehicle.
The
defendant testified as follows:
He
was the non-executive chairperson of the plaintiff for the past six
(6) years. He started using the vehicle in issue in 2011.The vehicle
belongs to the plaintiff and he possesses it. He is entitled to the
vehicle because his predecessors were allowed to purchase their
vehicles after leaving the company. His predecessor, Mr Kadenga, was
allowed to purchase his vehicle after leaving the company. Mr Kudenga
was offered his vehicle but he turned down the offer because he was
not happy with its state. The practice is to allow chairpersons to
exercise the right to purchase their vehicles. He expected that he
would be offered to purchase the vehicle. He was treated unfairly as
he was not offered the vehicle. He served the company well. He is
prepared to pay for the vehicle.
The
current position, as from December 2012, is that a non executive
chairperson can purchase his vehicle at 20% of book value. The
company has decided to come up with a resolution to cover or protect
a certain individual so that he can benefit by purchasing his vehicle
when he leaves the company.
The
witness contended that although there was no resolution allowing
chairpersons to purchase their official vehicles, there was an
understanding and a practice in place that allowed purchase of
vehicles by non-executive chairpersons. The witness conceded that his
letter of appointment does not mention the right of retention of the
vehicle on termination of the appointment. He expected that the
company would offer him the vehicle as shown by precedent. He is
holding onto the vehicle for justice to prevail and wants the parties
to negotiate and if he is given a fair price he will pay. Without
prejudice negotiations have failed.
The
evidence of Mr Fortune Chasi, to the effect that previous
non-executive chairpersons were offered to purchase their issues and
that same may have taken the offers, was admitted by consent of both
parties.
The
issue that will dispose of this dispute is whether the defendant is
entitled to possess the plaintiff's car by reason of the fact that
the same ought to have been offered to him for purchase because
former non–executive directors were offered their issues.
The
rei vindicatio is a common law remedy which is based on the principle
that an owner of property cannot be deprived of his property without
his consent and is entitled to recover it from any person who
possesses it without his consent.
In
Chetty v Naidoo 1974 (3) SA 13 the court recognised that an owner has
exclusive possession of his property and that no other person may
withhold that right from the owner unless he is vested with an
enforceable right against the owner. Similar sentiments were
expressed by MALABA J…, in the case of Stanbic Finance Zimbabwe v
Chivhunga 1999 (1) ZLR 262 (HC) where he made the following remarks;
“The
owner may claim his property wherever found, from whosoever 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 Oakland Nominees v Gelria Mining & Investment Co. Limited
1976 (1) SA 441 (A).
A
litigant seeking to rely on the plea of rei vindicatio must prove the
following;
(i)
That he is the owner of the property in question. See Jolly v Shannon
and Anor 1998 (1) ZLR 78 (HC).
(ii)
Once ownership is proved, its continuation is presumed. See Stanbic
Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC).
(iii)
He must also prove that at the time of commencement of the action,
the defendant was in possession of the property. See Masuli v Jera
HH67-07.
(iv)
He is enjoined to prove that the defendant's possession was without
the plaintiff's consent or concurrence.
The
law does not permit that a property owner be deprived of his property
against his will and is entitled to recover it from any person who
possesses it against his will. See Stanbic Finance Zimbabwe v
Chivhunga 1999 (1) ZLR 262 (HC). Once ownership has been proved, the
onus is on the defendant to prove a right of retention. See Chetty v
Naidoo 1974 (3) SA 13, Claudius Chenga v Virginia Chikadaya and Ors
SC07-13.
In
Introduction to
Law, C.G Van Der MERWE and J.E Du PLESSIS
summarises the defences available in a vindicatory action as follows;
1.
The defendant had acquired the property by prescription;
2.
The third party is the owner;
3.
The property was alienated or destroyed; or
4.
The defendant has a superior contractual right to possess.
In
Oakland Nominees v Gelria Mining & Investment Co. Limited 1976
(1) SA 441 (A) HOLMES JA said the following on the requirement placed
on the defendant to have an enforceable right against the owner;
“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.”
It
is common cause that the plaintiff is the owner of the vehicle in
issue and the defendant has possession of it. The plaintiff avers
that the defendant possesses the vehicle without its consent.
The
defendant conceded that he is in possession of the vehicle without
the plaintiff's consent or concurrence. The defendant did not
pursue his stance that he is entitled to the vehicle as a terminal
benefit. The thrust of his defence was that he is entitled to possess
and purchase the vehicle because former chairpersons were allowed to
purchase their issues and he expected that he would be offered to
purchase his vehicle in accordance with that practice. He alluded to
a resolution passed in December 2012 which enables the incumbent
chairperson to purchase his issue.
The
plaintiff conceded that former chairpersons may have been offered
their issues. The plaintiff's motor car policy covers employees -
other than Directors. It does not cover non-executive Directors whose
benefits are covered by resolutions of the Board. There is no vehicle
policy or Board resolution entitling the defendant to purchase the
vehicle at the end of his term. There is no contractual right to
possess the vehicle. There is also no proof of an offer to purchase
the vehicle either express or implied.
I
am not in agreement with the defendant's contention, in his closing
submissions, that he was offered directorship on the understanding
that the plaintiff would offer him his last car provided that he had
to pay for it.
There
is simply no evidence to support that assertion.
In
the absence of a car policy Board resolution entitling him to
purchase the vehicle, or an offer to purchase the vehicle, the
defendant does not have a claim of right over the vehicle.
The
defendant is trying to arm twist the plaintiff into selling the
vehicle to him on the premise that other directors have previously
been offered to buy their own issues. This state of affairs does not
entitle him to purchase the vehicle. The fact that the plaintiff
offered previous directors their vehicles after the termination of
their contracts does not bind the plaintiff to sell this vehicle to
the defendant. The plaintiff has no obligation to sell the vehicle to
him.
The
defendant is holding the vehicle against the wishes of the plaintiff.
It
is entirely in the discretion of the plaintiff whether to offer the
vehicle to him. The court would err were it to compel the plaintiff
to sell the vehicle to the defendant in the absence of an offer to
sell the car or proof of some other entitlement. Similar sentiments
were expressed by NDOU J in Dhege v Dell Medical Centre HB50-04 where
he remarked as follows;
“In
the circumstances, it cannot be argued that the respondent…, was
obliged to sell the company car to applicant. The court cannot compel
a party to exercise its discretion in a particular fashion. The court
can compel a party to do what is mandatory in terms of an existing
agreement. The right to purchase the company car could only be
exercised after an offer had been made to the employee and not
before. The option to offer for sale, cars used by employees, was a
privilege and not a right.”
The
defendant's right to use the vehicle ceased when he left the
plaintiff's company. The fact that other directors were allowed to
purchase their issues does not confer rights on him to purchase the
vehicle.
I
agree with counsel for the plaintiff's contention that the hope and
expectation of an offer does not justify possession of the vehicle.
The
defendant's expectation that the vehicle would be sold to him is
not legitimate. His hold on to the vehicle is unlawful. The defendant
has failed to show that he has contractual or enforceable rights
against the plaintiff. He has no legal justification to continue
holding onto the plaintiff's vehicle. The applicant is entitled to
the order sought.
In
the result it is ordered as follows:
1.
The defendant is ordered to return Toyota Land Cruiser registration
number ACF 1290 within 7 days of the service of this order on him.
2.
Should the defendant fail to comply with this order, the Deputy
Sheriff be authorised to seize from the defendant a Toyota Land
Cruiser registration number ACF1290.
3.
Costs of suit.
