MUCHAWA
J:
This
is an application for rei vindicatio made in terms of common law. The
following draft order is sought:
“1.
The application for rei vindicatio be and is hereby granted.
2.
The respondent be and is hereby ordered to surrender the Mazda BT50
motor vehicle registration number AFF 1103 to the applicant's
offices within forty-eight (48) hours of this order.
3.
In the event that respondent fails to comply with the order in (2)
above, the Deputy Sheriff be and is hereby empowered to seize from
the respondent and deliver to the applicant the Mazda BT50 motor
vehicle registration number AFF 1103 without notice.
4.
Should the application be opposed, respondent shall pay costs of suit
on an attorney and client scale.”
It
is common cause that the respondent was employed by the applicant in
terms of a fixed term contract which was to lapse on 31 December
2024, in the capacity of human resources manager. On the 14th of July
2020, the respondent was served with a notice of termination of
employment contract in terms of s12(4a)(c) of the Labour Act,
[Chapter 28:01], as read with his employment contract.
On
the 27th of October 2020, the respondent referred to conciliation
before, a labour officer, his complaint of unfair dismissal.
That
matter is still pending.
It
appears from supplementary affidavits filed in this matter, that a
meeting was held on 26 May 2021, between the applicant and the
respondent which explored the possibility of reinstatement and
withdrawal of all pending cases.
Nothing
came out of it as the respondent's post was then advertised on 7
November 2021 and respondent applied to resume duty.
It
is the applicant's case that it is the owner of the vehicle in
issue which was only availed for use by the respondent in furtherance
of the employer's interests during his employment. It was submitted
that since the respondent's contract of employment had been
terminated, his entitlement to possess and use the vehicle had ceased
and he was bound to surrender it. It was argued that as the owner,
the applicant had a vindicatory right against the whole world,
respondent included.
In
opposition, the respondent took a point in limine that the High Court
has no jurisdiction, in the first instance, to deal with this matter
which jurisdiction lies with the Labour Court in terms of s89(6) of
the Labour Act.
I
heard the parties on this point and on the merits and reserved my
judgment. This is it, starting with the point in limine.
Whether
the High Court has jurisdiction to deal with this matter
Mr
Kanengoni submitted that since the motor vehicle in issue came into
the respondent's hands by virtue of his employment contract, whose
termination has been challenged, this is a pure labour matter which
falls within the purview of s89(6) of the Labour Act and the High
Court's jurisdiction in the first instance is ousted. Reference was
made to the case of Stanley Nhari v Robert Gabriel Mugabe & 2 ORS
SC 161/2020 as having clarified this position in the face of
conflicting High Court decisions.
The
effect of this decision was said to be the qualification of the
inherent jurisdiction of the High Court granted by s171 of the
Constitution of Zimbabwe, 2013.
It
was argued that precedence is to be given to the specialized courts
whose jurisdiction for the Labour Court is circumscribed in s172 of
the Constitution as read with s89(6) of the Labour Act.
In
support of resolving the question of the applicability of s89(6) when
one seeks vindicatory relief, the Court was referred to the case of
DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) wherein
it was held that the clear intention of the Legislature should be
upheld and that the jurisdiction of a special court should not be
ousted by the mere framing of disputes into common law causes of
action where the Act has made specific provisions for the same.
It
was pointed out that the court observed the existence of concurrent
jurisdiction and leaned in favour of the statutory provision.
Further
reference was made to the case of Lazarus Muchenje v Susan
Mutangadura & ORS HH21/21, to argue that the court should look
beyond the relief sought and go into the substance of the
application, in order to decide whether the dispute is one falling
under common law or otherwise.
Paragraph
8 of the founding affidavit was alleged to make it clear that
possession of the motor vehicle was consequent to the employment
relationship and that in paragraphs 9 and 10 the basis for requesting
the vehicle is termination of the employment relationship.
Mr
Kanengoni argued that the real cause of action is the termination of
employment therefore the Labour Court should be the one holding
jurisdiction in deference to the Nhari v Mugabe supra judgment.
Mr
Kondongwe submitted that the respondent is selectively reading the
Nhari v Mugabe supra case as it is distinguishable from the facts in
casu as Nhari approached the Court for an order to be paid terminal
benefits after termination of his contract and the court was correct
to decline jurisdiction of the High Court as the cause of action fell
within the purview of the Labour Court's jurisdiction.
The
Muchenje v Mutangadura supra case was also distinguished as one where
the applicant wanted an interdict but the court found that the real
cause of action was a challenge to his dismissal.
It
was argued that the court correctly found it had no jurisdiction but
the Labour Court had, as the cause of action was not based on common
law principles as herein.
Mr
Kondongwe referred to the case of Nyahora v CFI (Pvt) Ltd SC81/14,
which, it was contended falls on all fours with this case and settled
all the conflicting High Court cases.
In
that case the Supreme Court is said to have distinguished the
applicability of the line of cases like Nhari v Mugabe by finding
that the Labour Court is a creature of statute and its jurisdiction
is set out in s89 of the Labour Act. The exclusive jurisdiction set
out in s89(6) is said to be applicable only to matters covered in the
Labour Act which is said not to cover the common law principle of rei
vindicatio.
It
was further argued that the right of an individual to approach the
High Court seeking relief other than relief specifically set out in
s89(1) of the Labour Act has not been abrogated.
Furthermore,
Mr Kondongwe observed that the applicant's counsel had not
distinguished the case of Nyahora v CFI supra and that the Supreme
Court, in the case of Nhari v Mugabe supra, in its wisdom, had also
not ventured into dealing with Nyahora v CFI supra.
The
only logical conclusion, it was argued, is that Nhari v Mugabe did
not depart from Nyahora v CFI and that in the former case, the
Supreme Court simply sought to protect the High Court from general
labour matters being brought to this forum on account of inherent
jurisdiction.
What
is evident from case law is that before the Supreme Court case of
Nyahora v CFI supra, one could be forgiven if they followed the DHL
International (Pvt) Ltd v Madzikanda supra line of cases where an
employer sought to recover its property from an employee upon
termination of the contract of employment and declined jurisdiction
and referred such a dispute to the Labour Court.
The
justification was that it would be a mockery of the clear intention
of the legislature to create a special court in circumstances where
the jurisdiction of the court could be defeated by the framing of
disputes as common law causes of action despite the fact that the
Labour Act would have made specific provision for the same.
The
Supreme Court in Nhari v Mugabe supra considered the case of Stanley
Machote v Zimbabwe Manpower Development Fund 2016 (1) ZLR 195 (H)
whose subject was the registration of an arbitral award.
Also
considered was the case of Nyanzara v Mbada Diamonds (Pvt) Ltd 2016
(1) ZLR 195 (H) in which the issue was outstanding allowances.
In
Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry
Workers' Union and Three Others HH74/16 the subject was a
collective job action.
In
Nhari v Mugabe the Supreme Court observed that the claim was for
outstanding pay though it had been called damages.
The
court did not expressly deal with rei vindicatio claim nor
distinguish its earlier decision in Nyahora v CFI supra. The only
mention of the cases of DHL International (Pvt) Ltd v Madzikanda
supra and Zimtrade v Makaya 2005 (1) ZLR 427 (H) 429 which cases
dealt with rei vindicatio claims was to show that before the current
Constitution, the position was settled that the High Court had no
jurisdiction in labour and employment matters as shown in those
cases.
The
Supreme Court did not go further to consider the implications of
Nyahora v CFI in as far as it dealt with a rei vindicatio claim.
It
is my finding therefore that there has been no departure from Nyahora
v CFI supra in which the position of the law was clearly set out as
shown hereunder;
“The
Labour Court is a creature of statute. Its jurisdiction is set out in
s89 of the Act. Sections 89(1) and (6) are set out hereunder:
'89
Functions, powers and jurisdiction of the Labour Court
(1)
The Labour Court shall exercise the following functions —
(a)
hearing and determining applications and appeals in terms of this Act
or any other enactment; and
(b)
hearing and determining matters referred to it by the Minister in
terms of this Act; and
(c)
referring a dispute to a labour officer, designated agent or a person
appointed by the Labour Court to conciliate the dispute if the Labour
Court considers it expedient to do so;
(d)
appointing an arbitrator from the panel of arbitrators referred to in
subsection (6) of section ninety-eight to hear and determine an
application;
(d1)
exercise the same powers of review as would be exercisable by the
High Court in respect of labour matters;
(e)
doing such other things as may be assigned to it in terms of this Act
or any other enactment…
(6)
No court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in subsection (1).'
The
exclusive jurisdiction conferred by s89(6) relates only to the
hearing and determination, in the first instance, of any application,
appeal or matter referred to in subsection (1).
Subsection
1(a) in turn clearly limits that jurisdiction to applications and
appeals in terms of this Act or any other enactment.
Instances
in which applications and appeals may be made in terms of the Act are
clearly set out in the Act and need no further elaboration.
Reference
was made, among others, to the applications referred to in ss92C and
93(7) of the Act. These are applications in terms of the Act and no
other court has jurisdiction to hear or determine such applications
at first instance.---------
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 s891(a) of the Act, has not been abrogated.
Nothing
in s89(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 s89 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.”
It
is therefore my finding that the High Court has jurisdiction to deal
with this matter as the common law remedy of rei vindicatio is not
covered under the Labour Act.
I
therefore dismiss the point in limine.
Whether
the respondent has a right to retain the motor vehicle
Mr
Kondongwe submitted that the applicant relies on the actio rei
vindicatio and it is trite that an owner has a right to vindicate his
property against a possessor who holds it without his consent.
The
requirements to be proved are that the applicant is the owner of the
property which the respondent is holding against his or her will.
Once this is shown, it was averred that the onus shifts to the
respondent to prove a right of retention.
It
was submitted and is not disputed that the vehicle in issue is owned
by the applicant.
In
his defence, the respondent submitted that his dismissal was improper
and has been challenged before the labour officer.
He
also sought to rely on the promise of reinstatement which was
intimated in the meeting of 26 May 2021, which meeting, it was argued
was at the instance of the applicant.
He
therefore further argued that he had a legitimate expectation of
reinstatement as his post had not yet been filled at the time of the
hearing of this matter.
The
claim of a legitimate expectation is just that. An expectation. It
does not give rise to any contract of employment entitling the
respondent to retain the vehicle. See Nyahora v CFI where a claim for
legitimate expectation to purchase the company vehicle was dismissed
in the following manner;
“The
appellant's further claim that he had a legitimate expectation to
purchase the vehicle is, in my view, also without merit.
It
seems to me that whatever expectation he had to purchase the vehicle
is merely that - an expectation. It has no legal basis. It is not
justiciable. It cannot be converted into a claim of right.”
Mr
Kanengoni's further argument that the dismissal has been
challenged, is also without merit.
I
rely on what was held by MATHONSI J in Lafarge Cement Zimbabwe v
Chatizembwa HH 413/18;
“I
have stated before that an employee who has lost employment has no
right to hold onto the property of the former employer allocated to
him or her by virtue of employment or as a condition of employment
merely on the grounds that he or she is challenging the termination
of the employment contract.------------
Put
in another way, a former employee does not acquire a right of
retention as can be used to resist a rei vindicatio on the basis of a
challenge of a completed dismissal from employment and a forlorn hope
that such dismissal may be reversed at a future uncertain date.”
It
is my finding that the respondent has not discharged the onus to show
a right of retention of the motor vehicle in issue.
Costs
It
was submitted for the applicant that the question of the retention of
benefits by dismissed employees is a weather-beaten road and the
courts have stressed that such actions are unlawful. It was argued
that the defences mounted by the respondent have been traversed
before and defending the claim was a clear attempt to flog a dead
horse thereby merely frivolous and costs should be awarded on a
higher scale.
What
is apparent however is that the respondent based his defence on the
case of Nhari v Mugabe which was decided in 2020 and in which the
Supreme Court broadly stated the issue for determination as, “whether
the High Court has jurisdiction to deal with matters of labour and
employment.”
The
court reached the conclusion that the High Court does not enjoy the
jurisdiction to deal with each and every civil and criminal matter in
Zimbabwe and that its original jurisdiction had been fettered and
truncated by the Constitution in making provision for the creation of
specialized courts whose jurisdiction may oust that of the High Court
in specific areas.
The
question of whether the Nhari v Mugabe decision had specifically
replaced Nyahore v CFI remained unchartered.
The
defence cannot be said to be frivolous therefore and costs on a
higher scale are unmerited.
Consequently,
I make the following order;
1.
The application for rei vindicatio be and is hereby granted.
2.
The respondent be and is hereby ordered to surrender the Mazda BT50
motor vehicle registration number AFF 1103 to the applicant's
offices within forty-eight (48) hours of this order.
3.
In the event that respondent fails to comply with the order in (2)
above, the Deputy Sheriff be and is hereby empowered to seize from
the respondent and deliver to the applicant the Mazda BT50 motor
vehicle registration number AFF 1103 without notice.
4.
The respondent to pay costs of suit on an ordinary scale.
