UCHENA
J: The applicant was the first
respondent's employee since 1 August 2005. He resigned from the first
respondent's employment on 31 May 2007. The first respondent is a dully
registered company, which runs a voluntary motor vehicle scheme for its
employees. The applicant refused to join the scheme, but the first respondent
bought a motor vehicle which the applicant used as its employee.
When
the applicant resigned from the first
respondent's employment he presented a document to the first
respondent's Human Resources Manager, and Finance Manager, in which he sought
an agreement through which he would buy the first respondent's motor vehicle he had been using. The document
dated 8 June 2007 reads:
“Motor Vehicle Repayment Mazda B2500 728-511 J
I Dr Mapfumo
Takavada do hereby certify that I intend to settle my outstanding bill of my
motor vehicle loan, amount being one hundred (sic) thirty million and five
hundred thousand dollars. (This being car value less 50% deduction). By making
an initial deposit of ten million dollars into Stanbic Bank Acc PSMI Head
Office 01400 25396501 on the 9th of June 2007, and to complete the
balance by two installments into the same Account before the 20th of
July 2007. Meanwhile the car will be parked at PSMI car Park as from 9th
of June 2007 until the full payment is made.
In the event of
me failing to settle the balance before the agreed date, the company will
reimburse me my repayments and repossess the vehicle”
The
applicant signed the hand written agreement on his own behalf. Messers N Savado
Corporate Human Resources Manager and V Chaipa Corporate Finance Manager,
signed it on behalf of the first respondent.
The
first respondent by letter dated 27 June 2007 advised the applicant that it was
cancelling the agreement. The critical part of the letter reads:
“I would like to
draw your attention to the following facts concerning the above mentioned
vehicle which you have been using:
Subsequent to
the review of records, in our possession, it has been revealed that you did not
sign the original motor vehicle scheme that was promulgated in 2005 and as such
you have not been making monthly payments in respect of the above mentioned
vehicle which renders it a company vehicle.
…
In view of the
above mentioned reasons, the directorate has reached the decision to withhold
the vehicle, as it is company property.” (See annexure B to the respondent's
opposing affidavit.)
The
applicant then applied for an order compelling the first respondent to hand
over the motor vehicle to him.
The following facts are common
cause
- That the applicant did not join the motor vehicle
scheme, when he took employment with the first respondent on 1 August
2005.
- That he therefore did not make monthly contributions
towards the purchase of a motor vehicle as required by the motor vehicle
scheme.
- That the agreement signed by the parties does not
represent the truth on the applicant having paid deductions of 50%, for
which a deduction could be made from the value of the motor vehicle, or
entitle the applicant to refund of repayments if he failed to pay the
agreed installments by the agreed date.
- That the applicant did not surrender the motor
vehicle to the first respondent by
the agreed date.
- That when the first respondent discovered that the
applicant had misrepresented that he was a member of the motor vehicle
scheme, it cancelled the agreement by letter dated 27 June 2007.
- The first respondent then allocated the motor vehicle
to the third respondent who is a member of its motor vehicle scheme with a
view of selling it to him.
The
issue to be decided is whether or not the applicant misrepresented that he was
a member of the first respondent's motor vehicle scheme. The agreement he
presented to the first respondent puts that issue beyond doubt. He talks of
“settling my outstanding bill of my motor vehicle loan”. He further states in
it that the value he indicates is a result of a (50% deduction). This demonstrates
willful and fraudulent misrepresentation. There is no doubt that he was
deliberately misrepresenting facts so that he could be allowed to buy the motor
vehicle.
The
question to be answered is, would the first respondent have entered into the
agreement if the applicant had not misrepresented the facts. In my view it
would not because in terms of the agreement annexure F to the applicant's
founding affidavit, the agreement was premised on 50% of the price having been
paid through deductions. No such deductions were made. The price of the motor
vehicle as per the agreement was due to part of the original value of the motor
vehicle having been already paid. No such payments had been made. The applicant
also misrepresented that there was a prior agreement through the motor vehicle
loan scheme, on which annexure F was premised, when no such prior agreement
existed.
I
am therefore satisfied that the first respondent is entitled to cancel the
agreement.
The
applicant deliberately misrepresented facts on which he premised his
application. When the deceit was discover he did not as was expected give up.
He instead persisted in what must have been an apparently hopeless application.
On being advised that the motor vehicle had been allocated to the third respondent
he joined him into the application. If he had reflected on the deceit he had
used to get into the agreement he would not have persisted. He caused the
respondents to incur unnecessary expenses. He must pay their costs on the legal
practitioner and client scale.
In
the result the applicant's application is dismissed with costs on the legal
practitioner and client scale.
Mtombeni, Mukwesha, Muzawazi &
Associates, applicant's legal practitioners.
Matimba &
Muchengeti, first and third respondents' legal
practitioners.
