Urgent
Chamber Application for rei
vindicatio
TAGU
J:
The
applicant seeks an order of rei
vindicatio.
It seeks recovery of its property namely- motor vehicle, a Toyota
Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung
Galaxy S5 and a Samsung tablet 4 presently in the possession of the
respondent without the applicant's consent.
The
circumstances are that the respondent was employed by the applicant
as a Director of Works in terms of a written contract. The respondent
gave notice of his intention to resign from the applicant's
employment. He indeed resigned on the 18th
December 2017. During the term of his employment the respondent was
issued with a motor vehicle and other gadgets for use in the
performance of his duties. Upon resignation the respondent remained
in possession of the vehicle and the gadgets. Despite the termination
of his employment the vehicle and the gadgets remained registered in
the names of the applicant. The applicant requested the respondent to
surrender the motor vehicle and other gadgets that were issued to the
respondent during the course of his employment. The respondent
despite lawful demand declined to return the property in question
prompting the applicant to file a police report at ZRP St Marys CR
68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the
Prosecutor General who declined to prosecute holding that the dispute
was civil.
This
prompted the applicant to file this urgent chamber application for
rei
vindicatio.
The
respondent opposed the application. He raised three points in
limine
in his Notice of Opposition which he thought could dispose of this
matter which can be summarized as follows -
(a)
The application is frivolous and vexatious;
(b)
The application is not urgent;
(c)
Lis alibi pendens; and
(d)
That the High Court has no jurisdiction to hear this matter.
I
have to examine the points in
limine
first to decide whether they dispose of the matter without dealing
with the merits of the application.
THE
APPLICATION IS FRIVOLOUS AND VEXATIOUS
The
respondent's contention was that he is entitled to the vehicle and
the other gadgets in terms of clause 17 of his employment contract
which provides that on resignation he was entitled to an option to
purchase his allocated vehicle at 10% of book value. He averred that
since he resigned his contract provides that as his benefits he is
entitled to a 90% discount on his conditions of service hence in the
event of not getting the vehicle he would be prejudiced of his 90%
discount on the vehicle.
The
applicant opposed this point in
limine
and relied on the cases of Joram
Nyahora
v CFI
Holdings (Private) Limited
SC 81/2014 and Tendai
Savanhu
v Hwange
Colliery Company
SC -8-2015.
Clause
17 of the respondent's contract of employment provides that -
“Purchase
Option at 10% of Book Value
The
HOD shall be given the first right of refusal to purchase his/her
allocated vehicle as follows:
(i)
On expiration of contract.
(ii)
Upon resignation or resignation on medical grounds.
(iii)
Upon dismissal no purchase option will be exercised.”
The
applicant's argument was that the property in question remained the
property of the applicant and was never given to the respondent hence
the applicant has a right to bring this application for rei
vindicatio.
It said though the contract of employment talks of respondent's
right of first refusal to purchase the vehicle in question, the
applicant was not obligated to sell the property in question to the
respondent. See Eastview
Gardens Residents Associations
v Zimbabwe
Reinsurance Corporation Ltd and Others
SC-90-02.
In
this case it is not in dispute that the respondent resigned from his
employment. It is common cause that by the time of his resignation
the applicant had neither made a decision to dispose of the vehicle
and the gadgets nor offered the said property to the respondent for
sale. In my view the ownership of the vehicle and the other gadgets
remained vested in the applicant. I therefore agree with the
applicant's argument that by ceasing to be an employee of the
applicant the respondent's possession and use of the gadgets also
ceased unless they had been offered to the respondent to purchase. I
entirely agree with the decisions of the Supreme Court in the cases
of Tendai
Savanhu
v Hwange
Colliery Company
and Joram
Nyahora
v CFI
Holdings (Private) Limited supra.
On this basis the first preliminary point lacks merit and is hereby
dismissed since the application is not frivolous and vexatious.
THE
APPLICATION IS NOT URGENT
The
respondent's argument was that this matter is not urgent because he
advised the applicant on or about the 15th
of December 2017 that he was not willing to release the said assets
but the applicant took about 15 days without bringing this
application. He attacked the certificate of urgency in that it did
not disclose what the applicant was doing all along, that is it
failed to disclose the reasons for the delay. For this contention the
respondent referred the court to the case of Kuvarega
v Registrar
General and Another
1998 (1) ZLR 188 (H) at 193 where chatikobo
J said -
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if at the time the need to act arises,
the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the dead-line draws near is not
the type of urgency contemplated by the rules. It necessarily follows
that the certificate of urgency or the supporting affidavit must
always contain an explanation of the non-timeous action if there has
been any delay.”
See
also Document
Support Centre
v Mapuvire
HH-117-06.
In
casu
the applicant disputed the assertions made by the respondent. It
argued that it first of all advised the respondent to return the
assets. When the respondent refused to release the assets it lodged a
report with the police. It was only three days after the Prosecutor
General declined to prosecute the matter that it lodged this
application.
Indeed
I had sight of both the certificate of urgency and the founding
affidavit. It is not true that the urgency in this matter was
self–created because the papers clearly showed that the applicant
firstly requested the respondent to return the assets. When he
refused a police report was made. The matter was referred to court
and the Prosecutor–General then declined to prosecute. Only then
did the applicant lodged this application. In my view, this matter is
urgent and the second point in
limine is
dismissed.
LIS
ALIBI PENDENS
The
respondent submitted that he instituted a claim with the Ministry of
Labour and Social Welfare in terms of section 93 of the Labour Act.
The subject matter before the Labour Officer is a determination of
his benefits including the car. This is the same claim which the
applicant has brought to this Honourable Court. Hence he wants this
claim to be dismissed.
In
my view the matter before the Labour Officer is about the
respondent's benefits and arrear salaries. The matter before this
court is one of rei
vindicatio.
These are two different matters. The claim cannot be dismissed on the
basis of lis
alibi pendens
because the claims are different. This point is again dismissed.
JURISDICTION
OF THE HIGH COURT
The
long and short of the respondent's submission was that the present
matter relates to benefits which he is entitled to on the termination
of his contract of employment hence the Labour Court has exclusive
jurisdiction over this matter. In light of the above this court does
not have jurisdiction to deal with the present matter hence the
matter ought to be dismissed with costs. The respondent said the High
Court declined jurisdiction in the case of Telone
(Private) Limited
v Edwin
Matinyarare
HH-140-13.
In
opposition to the submissions the applicant referred the court to the
case of Joram
Nyahora
v CFI
Holdings (Private) Limited supra
at pages 5-7 where the Supreme Court had occasion to deal with a
similar issue. On p 7 of the cyclostyled judgment the Supreme Court
in the above matter said -
“As
submitted on behalf of the respondent, the right of an individual to
approach the High Court seeking relief other than that specifically
set out in section 89(1)(a) of the Act, has not been abrogated.
Nothing in section 89(6) takes away the right of an employer or
employee to seek civil relief based on the application of pure
principles of civil law, except in respect of those applications and
appeals that are specifically provided for in the Labour Act. Nor is
there contained in section 89 any provision expressly authorizing the
Labour Court to deal with an application, such as in the instant
case, for the common law remedy of rei
vindicatio.
Such applications fall squarely within the jurisdiction of the High
Court.”
I
cannot do any better other than to hold that this court has
jurisdiction to hear this matter.
While
the High Court declined jurisdiction in the case of Telone
(Private) Limited
v Edwin
Matinyarare supra,
in my view this judgment is persuasive but not as binding on me as
the Supreme Court one.
See
also Surface
Investments (Private) Limited
v Maurice
Chinyani
HH295-14; Zimbabwe
Broadcasting Holdings
v Gono
ZLR 2010 (1) ZLR 8; Zimbabwe
Educational Scientific Social And Cultural Workers Union
v Claud
Kaharo
HH222-2011; and Gloria
Rumbidzai Mkombachoto
v Commercial
Bank of Zimbabwe Limited and The Registrar of Deeds
HH10-2002.
AD
MERITS
The
application before me is a rei
vindicatio
action brought by the applicant against the respondent. I will
therefore deal with the matter without regard to what is happening at
the Labour Court. In dealing with the matter I am mindful of the fact
that an applicant seeking to rely on the rei
vindicatio
must prove the following -
1.
That he is the owner of the property - Jolly
Shannon and Anor
1998 (1) ZLR 78;
2.
That at the commencement of the action, the thing to be vindicated
was still in existence and the respondent was in possession of the
property - Masuli
v Jera
HH67-07; and
3.
That the respondent's possession is without his consent - Stanbic
Finance Zimbabwe
v Chivhunga
1999
(1) ZLR 262.
It
is trite law that the owner may claim his property wherever, from
whoever 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. Such as
right of retention or contractual right. The owner need only to prove
that he is the owner and that the respondent is in possession without
his or her consent. See Silvertondale
(Pvt) Ltd
1999 (2) SA 986.
In
casu
the respondent contented that he was supposed to purchase the vehicle
and the other gadgets. Yet it is common cause that the property
belongs to the applicant. In my view the respondent failed to prove
any right or entitlement to the property in question. He therefore
must return it since he has no basis to continue holding onto the
vehicle and the other gadgets.
In
the result the applicant has managed to prove its case.
This
is the point that was well articulated by the Supreme Court in the
cases of Joram
Nyahora
v CFI
Holdings (Private) Limited and Tendai
Savanhu
v
Hwange
Colliery Company supra.
I will therefore grant the following order -
TERMS
OF ORDER MADE
FINAL
ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
1.
The Respondent be and is hereby ordered to surrender possession of
and to return to the Applicant:
(a)
A motor vehicle, namely, a Toyota Hilux Double Cab, Registration
Number AAE 7098;
(b)
HP 450 laptop;
(c)
Samsung Galaxy S5;
(d)
Samsung Tablet 4;
upon
service of this order, failing which the Sheriff of Zimbabwe or his
lawful deputy be and is hereby authorized to take all necessary
steps to recover the said motor vehicle from the Respondent or any
person whomsoever is in possession thereof and wherever the motor
vehicle may be situate and return the same to the Applicant.
2.
The Respondent should pay the costs of suit on an attorney client
scale.
INTERIM
RELIEF
Pending
confirmation or discharge of this provisional order, Applicant is
granted the following relief:
1.
The Respondent be and is hereby ordered to surrender and return -
(i)
A motor vehicle, namely, a Toyota Hilux Double Cab, Registration
Number AAE 7098;
(ii)
HP 450 laptop;
(iii)
Samsung Galaxy S5;
(iv)
Samsung Tablet 4;
to
the Applicant's premises being Chitungwiza Municipality Head Office
where it shall be kept/stored by the Applicant pending the return
day.
2.
In the event of the Respondent failing to comply with the terms of
paragraph 1 of this order, the Sheriff or his lawful deputy be and is
hereby directed and authorized to take any and all necessary steps to
recover the said motor vehicle, HP 450 laptop, Samsung Galaxy S5 and
Samsung Tablet from the Respondent or any person whoever is in
possession thereof and return them to the Applicant for the purposes
of compliance with paragraph 1 of this order.
SERVICE
OF THE ORDER
A
copy of this order be served upon the respondent by the applicant's
legal practitioners.
Kantor
& Immerman,
applicant's legal practitioners
B
Matanga IP Attorneys,
respondent's legal practitioners
