MATHONSI
J:
The
respondent was employed by the applicant as a Public Relations
Manager on 8 December 2011, and held that position for a period of
about 2 years before his employment contract was terminated on 19
February 2014.
He
could not take the dismissal lying down and has been to the Labour
Court seeking redress without success. After the Labour Court turned
down his appeal, he sought leave to appeal to the Supreme Court which
application is yet to be determined.
Meanwhile,
during the tenure of his employment, the respondent had been afforded
the use of a company vehicle, a Nissan Hardbody, registration number
AAJ 7705, a Lenovo laptop and an office at the company premises at
Stand 17030 Calton Road, Graniteside, Harare, all of which are the
property of the applicant.
The
applicant complains that when the respondent's employment contract
was terminated by reason of serious misconduct, he refused to
surrender the property in question. The office has remained locked up
with the applicant unable to access it for well over a year and the
respondent continues to enjoy the use of the vehicle and laptop
without authority.
The
applicant has brought this application on the basis of rei
vindicatio
as owner of the property seeking an order for the return of the
property. Alternatively, the applicant would want the respondent to
pay US$17,730-00 being the cost of the property.
The
respondent has opposed the application stating in his opposing
affidavit that the deponent of the founding affidavit, Alexander
Johnson, has not shown that he has authority to bring the application
as the company resolution attached to the application instead
authorises one Haresh Dalal to do so.
The
respondent asserts that he is still entitled to use the vehicle as
his employment contract was not lawfully terminated. He is appealing
to the Supreme Court against the decision of the Labour Court which
upheld his dismissal.
As
the matter involves a purely labour issue this court has no
jurisdiction whatsoever to entertain it. It should have been brought
before the Labour Court, where the respondent suffered grief.
In
its answering affidavit, the applicant rectified the error relating
to the attachment of a wrong company resolution explaining that it
had arisen because the applicant had initially been represented by
its General Manager, Haresh Dalal when it sought to recover the
property by urgent application because Alexander Johnson, the Group
General Manager was away at the time. The urgent application was
refused and now having proceeded by ordinary application, they
switched the documents. A proper resolution has since been filed.
Mr
Mwonzora,
who appeared for the respondent would not relent.
He
submitted that the application must stand or fall on its founding
papers.
While
that may be true, in my view that cannot possibly defeat the
application. Even if no resolution had been attached as opposed to a
wrong one, a deponent of the founding affidavit who has stated that
he has authority to represent the company, should generally be
believed by the court. Where he is challenged to produce proof of
such authority by a respondent sceptical of its existence, he would
be allowed to do so in the answering affidavit.
The
requirement that a company representative should produce the
resolution giving authority is to satisfy the court that it is the
company that is litigating and not an unauthorised person. Nothing
more and nothing less: African
Banking Corporation of Zimbabwe Ltd t/a Banck ABC v PWC Motors (Pvt)
Ltd & Ors
HH123/13;
Kettex
Holdings (Pvt) Ltd v Kencor Management Services (Pvt) Ltd
HH236/15.
Mr
Mwonzora
cannot
be allowed to take a forfeit for a mistake in submitting a wrong
resolution even when the correct one has now been submitted. This is
not a game of chess.
In
the absence of evidence pointing to the fact that Alexander Johnson
is not litigating for the company, the objection raised remains
without merit and is accordingly dismissed.
Mr
Mwonzora
also objected to the application on the basis that this court has no
jurisdiction over the matter as it is purely a labour dispute in
which the Labour Court enjoys exclusive jurisdiction in terms of
s89(6) of the Labour Act [Chapter
28:01].
He
submitted that all the authorities relied upon by Mr Masango
for the applicant in asserting the jurisdiction of this court are
merely persuasive and not binding on me and should be departed from
in favour of a refusal to exercise jurisdiction.
He
maintained that the test to be applied in determining whether to
decline jurisdiction is whether the matter is one which, if placed
before the Labour Court, that court would exercise jurisdiction. If
so, then jurisdiction should be declined.
I
have had occasion to pronounce on that argument before in the case of
William
Bains & Co. Holdings (Pvt) Ltd v Nyamukunda
HH309/13 where at p2 of the cyclostyled judgment I stated:
“Regarding
the issue of jurisdiction this court has stated on times without
number that its jurisdiction has been ousted by the provisions of
s89(6) of the Labour Act [Chapter
28:01]
only in those matters where the Labour Court is granted specific
jurisdiction by s89(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
2011
(2) ZLR 368 (H) 374 A; P
G Industries (Zimbabwe) Ltd v Machawira
2012
(1) ZLR 552 (H) 556B.
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”.
I
still stand by that position and Mr Mwonzora
has not said anything that would persuade me to shift.
In
fact in Confederation
of Zimbabwe Industries v Mbatha
HH125/15
I was prepared to take the point further and said that s171(1)(a) of
the new constitution, which came into effect after the introduction
of s89(6) of the Labour Act, has reinstated this court's
jurisdiction on labour matters.
In
any event the rei
vindicatio
is not a cause of action whose remedy can be granted in terms of the
Labour Act as a stand alone remedy in the absence of a dispute that
is specifically provided for under that Act: Medical
Investments Ltd v Pedzisayi, supra,
at 114 F-H, 115A.
I
will therefore exercise jurisdiction.
Outside
those supposedly preliminary points, Mr Mwonzora
had nothing to say.
It
is common cause that the property in dispute belongs to the
applicant, that it was issued to the respondent by virtue of his
employment by the applicant as a Public Relations Manager for use in
the discharge of his duties as such and that he has since lost that
employment.
The
respondent has not even attempted to allege any other right over the
property outside his employment.
He
has argued that he is entitled to hold onto the property because his
employment contract was not lawfully terminated and that he has
appealed to the Supreme Court.
Mr
Masango
submitted that the respondent's challenge of his dismissal was
dismissed by the Labour Court. He has now applied for leave to appeal
which has not been granted yet.
The
authorities I have cited above make it clear that an employer is
entitled to vindicate against a former employee behaving like the
respondent because he has no legal basis to hold onto the property of
the employer. His desire to appeal has no significance to the issue
at hand.
To
those cases I should add the remarks of Gowora J (as she then was) in
Zimbabwe
Broadcasting Holdings v Gono
2010
(1) ZLR 8 (H) 9 G, 10 A-C that:
“Our
law is to the effect that once an employee has been suspended or
dismissed from employment, any benefits extended to such employee
from that relationship cease.
In
Chisipite
Schools Trust (Pvt) Ltd v Clark
1992
(2) ZLR 324 (S) Gubbay CJ stated:
'Pending
the removal of the suspension, the respondent was not entitled to the
continued enjoyment of the benefits comprising the free occupation of
the Headmistress's house and the continued use of the motor
vehicle. A labour relations officer cannot order the respondent to
surrender these particular benefits. Consequently, the applicant
being unable to resort to self-help approached the High Court for
relief. I consider it was justified in doing so'.
I
respectfully associate myself with the remarks of the learned Chief
Justice.
The
respondent stands dismissed and a conciliator has ruled in favour of
the applicant. The respondent has noted an appeal to the Labour
Court, but the noting of the appeal cannot give her the right to
retain the property that she had possession of as a result of the
contract of employment which is currently terminated. She has to
return the property in the absence of a recognisable defence to the
claim by the applicant for the return of its property. See Stanbic
Finance Zimbabwe Ltd v Chivhunga
1999
(1) ZLR 262 (H); Mashave
v Standard Bank of SA
1998
(1) ZLR 436 (S).”
The
respondent in the present case has no recognisable defence to the
applicant's claim for the return of its property. Perhaps that is
the reason why he has based his opposition only on technicalities
which however do not favour him either.
Mr
Masango
conceded
that the applicant had not proved the alternative claim for damages.
It is an issue the applicant may have to pursue outside this
application.
In
the result, it is ordered that:
1.
It be and is hereby declared that the Maroon Nissan Hardbody double
cab motor vehicle registration number AAJ 7705, the Lenovo laptop,
serial number CBQ 4385 027 and 2 keys for the office of the Public
Relations Manager situated at Stand number 17030 Calton Road
Graniteside, Harare are owned by the applicant which has all rights
to their possession and use.
2.
The respondent shall forthwith surrender that property to the
applicant.
3.
The respondent and any other person acting on his instructions shall
not take that property or interfere with the applicant's right of
ownership, possession and use of that property.
4.
The respondent shall bear the costs of this application on a legal
practitioner and client scale.
I.
Murambasvina, Tizirai-Chapwanya,
applicant's legal practitioners
Mwonzora
& Associates,
respondent's legal practitioners
