Urgent
Chamber Application
WAMAMBO
J:
Applicant
seeks a rei
vindicatio
order. It seeks to recover its property retained by respondent.
The
applicant is a body corporate duly constituted in terms of the Great
Zimbabwe University Act [Chapter
25:24].
The
respondent was an employee of the applicant holding the position of
Chief Security Officer.
The
respondent holds property belonging to the applicant which property
respondent was holding by virtue of his being an employee of the
applicant. The property consists of guns, a security motor vehicle
and office and gun cabinet keys. The respondent's contract of
employment with applicant has been terminated.
As
is usual in such applications respondent raised a number of points in
limine.
Respondent
contends that there is no proper certificate of urgency filed, that
the matter is not urgent that the draft order is defective and
unlawful.
I
will briefly deal with these points in
limine.
Apparently
the certificate of urgency copies and pastes the founding affidavit.
It does not reflect an independent view regarding urgency, so it is
argued. The certificate of urgency was deposed to by Mr
Mpoperi.
While it goes in some detail on the background facts it is not quite
a regurgitation of the founding affidavit. The deponent attempts to
justify the application and gives reasons and grounds thereof.
Paragraphs 6, 7, 8, 9, 10, 11 and 12 articulate the basis upon which
the application is predicated. Whilst appreciating that the
certificate of urgency could be broader or clearer, it does formulate
clear and justified reasons on which the application is made.
I
therefore dismiss this point in
limine.
On
urgency respondent avers that the founding affidavit does not reflect
urgency. It is deposed to by the Vice Chancellor Professor Rungano
Jonas Zvobgo. A number of complaints are raised by respondent. I find
the complaints unmeritorious. The founding affidavit gives the
background of the matter in detail. It spans almost 3 pages. The
detailed background is essential for one to appreciate what steps
applicant took in the matter, what options were open to it and
whether or not there are alternative remedies.
For
an appreciation of what the founding affidavit establishes I will
delve into some detail on the founding affidavit. This might
illuminate issues particularly on the raised issue of lack of
urgency.
The
facts as per the founding affidavit are as follows:
The
respondent's employment with applicant was terminated with the
effective date of termination being 31 October, 2019. Respondent
retained the keys to the office housing the gun cabinet and the keys
to the gun cabinet. Respondent also retained a motor vehicle used in
the security department. As matters would have it as will become
clearer in due course the three guns are lodged in the gun cabinet.
Effectively applicant cannot access its office and its three guns.
The
applicant took steps to recover the property at the centre of the
dispute to no avail. Applicant sought the help of the police. To
achieve this applicant wrote a letter dated 23 October, 2019 directed
to the police seeking recovery of inter
alia
the property in contention in this case. The letter further
emphasises the urgency of the matter citing that the State President
would preside over a graduation ceremony at applicant's premises on
1 November, 2019.
The
police responded to the request through a letter dated 29 October,
2019 and indicated that the matter is more civil than criminal. In
paragraph 4 of the said letter the Officer Commanding, Police
Masvingo Central District who penned the response indicated that his
office is open “for further assistance should you legally require
it”.
The
invitation to assist culminated in the Police taking custody of the
guns and ammunition in question on 31 October, 2019.
On
4 November, 2019 the police returned the guns and ammunition to the
gun cabinet.
Mr
Makausi
argued that there were efforts to calm the situation and the return
of the guns and ammunition marked the point when the applicant acted
by filing this application a day later.
I
am satisfied in the circumstances that the applicant did act when the
need to act arose and that he did so expeditiously. To that end I
dismiss this point in
limine.
The
last point in
limine
deals with the allegation that the interim relief being sought is
definitive and thus final in nature. In effect that the interim and
final orders are the same.
There
was a strenuous argument by Mr
Nyandoro
for the respondent that the relief sought is final disguised as
interim relief. He also argued that the request sought is meant for
the ordinary roll and not the urgent chamber application route.
To
this end I was referred to the matter of Williams
v Katsande
2010 (1) ZLR 266. Mr
Makausi
for the applicant was content to rely on the matter of Chitungwiza
Municipality vs Maxwell Karenyi
HH93-18.
Without
splitting hairs it would appear that it may have been more prudent to
couch the final order to reflect that the respondent should show
cause why he is of the view that he is entitled to the property at
the heart of the application. I am however not convinced that the
final order as couched is fatal to the application before me.
I
also dismiss this point in
limine.
On
the merits the application is for rei
vindicatio.
In
Chitungwiza
Municipality vs Maxwell Karenyi
(supra) TAGU J formulated the requirements of rei
vindicatio
applicant must satisfy as follows at page 5:
“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.”
The
respondent avers that he is challenging the termination of his
employment. That is clearly not material.
When
dealing with the same contention MWAYERA J in The
Minister of Higher and Tertiary Education, Science and Technology
Development vs Rudolf Pimai Matsanga
HH104-19
says as follows at page 3:
“Whether
or not the respondent is challenging the termination of employment is
immaterial. The basis of occupation which is employment no longer
exits and the owner of property is entitled to vindicate”.
In
the case of Montclair
Hotel and Casino vs Farai Mukutwa
HH200-15 MATHONSI J made pertinent remarks emphasizing that once the
basis of occupation has been terminated then the owner is entitled to
vindicate. The Honourable Judge MATHONSI remarked:
“Just
from where do former employees think they can derive the authority to
hold on to property belonging to a former employer given to them for
use during the subsistence of the contract of employment in the
discharge of their duties as employees after they have lost
employment? This matter is one of several of its nature which are now
finding their way to the court with alarming frequency of late where
a dismissed employee would simply not surrender the employer's
property but would cling to it as if life depends on it.”
The
above sentiments apply with equal force to the instant matter.
Apparently
as a red herring the applicant contends that the guns in question are
registered in his name and he fears that if they get in the wrong
hands mayhem may ensure and he will be held accountable.
It
is common cause that the guns are owned by the applicant and
respondent's name appears on the firearm certificate as a
representative of the applicant.
Apparently
efforts are underway by applicant to appoint persons to be
responsible for the firearms. See the letter dated 4 November, 2019
addressed to the Officer Commanding, Masvingo Province, ZRP by the
applicant through its Registrar's office.
Whilst
an attempt has been made to justify possession of the keys to the
office and cabinet wherein the guns are lodged the issue of the
security vehicle is not addressed in depth by respondent. The
applicant contends that the vehicle in question is a security vehicle
and its absence impacts on the security of the applicant's
premises.
It
is common cause that the guns, the office and cabinet where they are
lodged belong to the applicant. The keys to both the office and gun
cabinet belong to the applicant. The same applies to the security
vehicle.
It
is common cause that the above property existed at the time of action
and that respondent was in possession of the said property. The
efforts by applicant to have the property retained has not succeeded.
The action by the police is one such result of the applicant's
attempt to retain its property. It also reflects that the respondent
possesses the property without applicant's consent.
A
somewhat novel argument was raised by Mr
Nyandoro
for the respondent. It is to the effect that there has not been a
demand for the return of the property in question.
A
number of letters addressed to applicant reflect that a request was
made for the return of applicant's property in the possession of
respondent. A letter dated 30 September, 2019 addressed to applicant
reads in part as follows:
“Pursuant
to our letter dated 25 September, 2019 informing you of the
abolishment of the post of Chief Security Officer, kindly handover
property of the University in your possession to Mr Richard
Tivakudze, the Senior Security Officer. For security sensitive items
such as guns and ammunition kindly do the handover in the presence of
the Acting Vice Chancellor Dr E. Chikodza, Acting Registrar Mr I.
Chinyemba and Acting Bursar Mr I. Jamela”.
Following
the above letter are other letters addressed to respondent requesting
the handing over of the property in question; See letters dated 10,
21, 23 and 29 October, 2019.
In
the circumstances I find that the applicant has proven that he is
entitled to the interim relief he seeks. For clarity I will grant the
interim order as prayed for as amended. Applicant appears to have
repeated the contents of paragraph 1. To that end paragraph 2 of the
draft order is deleted.
IT
IS HEREBY ORDERED AS FOLLOWS:
Pending
confirmation of discharge of this provisional order, applicant is
granted the following relief;
1.
The respondent be and is hereby ordered to surrender and return –
(a)
3 guns and rounds of ammunition (the details of the guns are listed
below);
(a)(i)
Revolver Taurus, Serial Number 1290665.
(a)(ii)
Shortgun B.S.A. Serial Number 111-3754.
(a)(iii)
Pistol Norinco Serial Number 49109461.
(b)
Keys to the gun cabinet.
(c)
Applicant's vehicle MAZDA BT50 Registration Number 9417.
(d)
Applicant's office and keys; upon service of this order, failing
which the Sheriff of Zimbabwe or his lawful deputy be and is hereby
authorised to take all the necessary steps to recover the said
property from the respondent or any person whomsoever is in
possession thereof and wherever the property may be situate and
return the same to applicant where it shall be kept by the applicant.
2.
The applicant and/or his legal practitioners be and are hereby
authorised to serve this Provisional Order on the respondent.
Saratoga
Makausi Law Chambers,
applicant's legal practitioners
Hamunakwadi
and Nyandoro Law Chambers,
respondent's legal practitioners
