MATHONSI
J:
The
applicant and the respondent enjoyed an employer-employee
relationship for a period of 16 years, the respondent having been
taken in initially as a low level employee but, to his credit, rising
through the ranks to the position of Branch Manager for Marondera.
At
some stage during the period of employment, the respondent was issued
with the employer's Ford Ranger 1800 pick-up registration number
AAO 4838 for use although initially he was not entitled to it. When
he was promoted to Branch Manager, it was a condition of employment
that he be allocated a vehicle and therefore held the vehicle as part
of his conditions of service. In addition, he was also allocated a
company house, being No.1088 Fairview Crescent, Winston Park,
Marondera at a nominal rental of US$20-00 per month deducted from his
salary.
On
16 May 2011, the respondent resigned from employment and in his
letter of resignation of that date, he requested to purchase the
motor vehicle that he was using. The applicant refused to sell the
motor vehicle to him and demanded that he surrenders it and also
vacate the company house on a given date. The respondent did not
surrender the vehicle neither did he vacate the house.
I
must mention that a dispute arose between the parties hinging on
whether the respondent had resigned or had been dismissed as the
applicant had, after the respondent's resignation, purported to
conduct a disciplinary hearing and to dismiss him from employment.
Although that leg of the dispute between the parties is not before
me, I mention for completeness that it has since been resolved by the
Labour Court which concluded that the respondent had in fact resigned
and had not been dismissed.
Be
that as it may, the respondent's refusal to surrender both the
vehicle and the house prompted the applicant to make this application
before this court seeking an order compelling the respondent to
surrender the property.
The
application is opposed and in his opposing affidavit which also
betrays the level of acrimony in the relationship between the
parties, the respondent sought to argue that as the motor vehicle and
accommodation were part of his employment benefits, those issues were
outside the jurisdiction of this court and fell for determination by
the Labour Court which was then seized with an appeal he had lodged
therein.
The
respondent insisted that in terms of the conditions of service of the
applicant, he was entitled to purchase the vehicle as he had had it
for 7 years when the conditions of service allowed an employee the
right to purchase a vehicle allocated to him at the expiration of a
period of 5 years.
I
intend to deal with the issues which fall for determination in turn.
Regarding
the issue of jurisdiction this court has stated on times without
number that its jurisdiction has been ousted by the provisions of
section 89(6) of the Labour Act [Cap 28:01] only in those matters
where the Labour Court is granted specific jurisdiction by section
89(1) of the Act: Medical Investments Ltd v Pedzisayi 2010 (1) ZLR
111 (H) 114C; DHL International Ltd v Madzikanda 2010 (1) ZLR 201 (H)
204 B-D; Moyo v Gwindingwi N.O. & Anor HB168/11 at p 5-6; Jambwa
v GMB HH124/13; PG Industries (Zimbabwe) Ltd v Machawira HH255/12.
The
Labour Court enjoys exclusivity in all matters where the cause of
action and the remedy are all provided for in the Act. Outside that,
for instance where the cause of action and the remedy are located in
the common law, the ouster provision in the Labour Act has no
application and this court will exercise jurisdiction.
In
casu, it is common cause that the employment contract of the parties
was terminated in May 2011. The applicant insisted that it had been
terminated by dismissal while the respondent took the view that he
had resigned. As I have already stated, the Labour Court decided in
favour of the respondent concluding that he had resigned. Whatever
the case, the employment of the respondent was terminated and he is
no longer an employee of the applicant.
The
situation presented by this case is the same as that which arose in
Medical Investments Ltd v Pedzisayi (supra) and I can do no better
than repeat what was stated by MAKARAU JP (as she then was) at 114
F-H 115 A that:-
“While
it has to be accepted that the respondent's claim of right to the
motor vehicle arises from her terminated contract of employment with
the applicant, this is a far cry from holding that there is a labour
dispute between the parties that can find a remedy or resolution in
terms of the Act. The resolution of the dispute between the parties
is not entwined with the resolution of the contract of employment, as
was the case in Zimtrade v Makaya supra (2005 (1) ZLR 427 (H)).
There, pending determination of the contract of employment, the
employer sought to repossess its assets from the employee using the
rei vindicatio. It appeared to me then to be the correct position at
law that where the validity of the suspension of the employee or the
termination of their employment is still pending, the rei vindicatio
could not properly lie at the instance of the employer.
I
am still of the same view.
On
the contrary, where the status of the former employee is without
dispute, the rei vindicatio can lie at the instance of the employer
in appropriate cases and the matter thereby falls outside the purview
of the Labour Court as it is not a matter that can be heard or
determined in terms of the Labour Act or any other related enactment.
It is my view that the rei vindicatio is not a cause of action whose
remedy can be granted in terms of the Act as a stand-alone remedy in
the absence of a dispute that is specifically provided for under the
Act”.
I
associate myself fully with that pronouncement. I will therefore
exercise jurisdiction.
Regarding
the merits of the matter, the respondent's opposition is twofold;
namely, that he is entitled to purchase the motor vehicle as he has
had it for more than 5 years as provided for in his conditions of
service. Secondly, he is entitled to remain in the employer's house
until such time that he has been paid his terminal benefits.
Mr
Mufuka for the respondent submitted that the respondent is willing to
vacate the house but would want that to be tied to payment of his
terminal benefits.
While
conceding that the respondent did not have a lien right over the
house, he still insisted on some kind of entitlement.
What
is clear from the papers is that the respondent did not purchase the
vehicle. At no time did the parties conclude a sale agreement
involving the motor vehicle. In fact the respondent only requested to
purchase the vehicle in his letter of resignation which request was
turned down. I have also been referred to the applicant's Personnel
Policy and Procedure Manual dealing with the vehicle policy; section
11 of which gives the applicant the sole discretion to authorise
disposal of vehicles to employees, taking into account a number of
factors including the employee's disciplinary record, good
performance at work and the vehicle's mileage.
It
cannot be said with any degree of certainty that the respondent is
entitled to purchase the vehicle. Even if he was, this cannot give
rise to an entitlement to retain it pending the conclusion of a sale
agreement. To that extent, the words of MAKARAU JP (as she then was)
in Medical Investments Ltd v Pedzisayi (supra) at 116A are apposite.
She said:
“I
am unaware of any law that entitles a prospective purchaser to have
possession of the merx against the wishes of the seller prior to
delivery of the merx in terms of the sale agreement. I was not
referred to any such law during the hearing of the matter. My limited
research has not yielded any”.
In
my view, it is the height of turpitude for the respondent to hold on
to both the vehicle and the house years after termination of the
employment contract under circumstances where he has no rights
whatsoever over the properties.
Mr
Mufuka could not advert to any legal authority entitling a former
employee to confiscate a former employer's property in the manner
the respondent has done. He could not come up with any authority
disentitling a former employer from vindicating against a former
employee in respect of its property.
The
fact that the respondent is owed terminal benefits is not a ground
for refusal to surrender assets.
In
the end we are left with the tired and limping argument that because
the respondent has referred the issue of whether the employment
contract was terminated by dismissal or by resignation to the Labour
Court, then this court should not entertain this application even
though the Labour Court dispute not only did not have anything to do
with the issues before this court but also determined that dispute by
judgment delivered in May 2013. I am satisfied that the applicant has
made a good case for the relief sought. Accordingly, I make the
following order, that:-
1.
The respondent, or any person possessing through him shall within 48
hours of service of this order, surrender to the applicant a motor
vehicle, namely, a Ford Ranger 1800 registration number AAO 4838,
failing which the Sheriff for Zimbabwe or his lawful deputy is hereby
authorised and directed to take possession of the vehicle and hand it
over to the applicant.
2.
The respondent and all those claiming occupation through him shall
vacate premises known as No. 1088 Fairview Crescent, Wiston Park,
Marondera within two (2) days of service of this order failing which
the Sheriff for Zimbabwe or his lawful deputy is hereby authorised
and directed to evict them from the said premises and handover
possession to the applicant.
3.
The respondent shall bear the costs of suit.
Honey
& Blanckenberg, applicant's legal practitioners
Mufuka
& Associates, respondent's legal practitioners
