The
applicant is a duly registered corporate entity under the laws of
this country. On 30 March 2008, following conciliation through an
arbitrator, the dismissal of the respondent from amongst the ranks of
the applicant's employees was confirmed.
As
a result, the parties' formal relation came to an end.
At
the time, the respondent was in possession of a vehicle belonging to
the applicant. The applicant had requested that the respondent, some
time prior to these sad events, use her own vehicle for the business
of the applicant. In turn, the applicant undertook to have the
vehicle serviced and repaired at its own cost. The vehicle required
certain repairs, and, as a result, the respondent was given use of
the applicant's vehicle on the understanding that it would be
returned once hers had been properly repaired. When the relationship
was terminated, the respondent's vehicle was still undergoing
repair. Some time thereafter the applicant sent the respondent's
vehicle to her with a request that its own be returned. The
respondent refused and it is that refusal that has prompted the
applicant to launch these proceedings for a rei
vindicatio
for the return of the vehicle.
The
respondent has opposed the granting of the relief in question.
Our
law, as it currently stands, 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
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 then to return the
property in the absence of a recognizable 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)
and Mashave
v Standard Bank of South Africa 1998 (1) ZLR 436 (S).
In
the latter case, the Supreme Court, per McNALLY JA…, stated
authoritatively:
“The
Roman-Dutch law protects the right of an owner to vindicate his
property, and, as a matter of policy, favours him as against an
innocent purchaser. See, for instance, Chetty
v Naidoo
1974 (3) SA 13 (A) at 20A-C. The innocent purchaser's only defence
is estoppel.”
This
dicta was quoted by MALABA J…, in Stanbic
Finance Zimbabwe Ltd v Chivhunga 1999 (1) ZLR 262 (H).
In
casu,
the respondent does not claim a right to retain the vehicle through
an agreement to purchase the vehicle as was the case in the two cases
quoted above. Rather, she seeks to rely on what has been termed an
antecedent agreement between the parties.
In
his heads of argument, counsel for the respondent argued that the
parties had an agreement which imposed consecutive obligations on
each other. He contends that the applicant had to finance and service
the respondent's motor vehicle to a satisfactory and roadworthy
condition, facilitate its transfer into the respondent's name, and,
thereafter, deliver it to the respondent. It was only then, so the
argument goes, that the applicant would be entitled to have the
Toyota Corolla returned to it. He relies on SA
Crushers (Pty) Ltd v Ramdass
1951
(2) SA 543
for this submission. At p 546D-F SHAW J stated;
“Mr
Cooper, for the respondent, submitted that the two obligations could
not be separated in this way although practically they would have to
be performed consecutively. The passage above cited from Mackenzie's
case, indicates, however, that where the obligations fall to be
performed consecutively, the party who must first perform is not
entitled to withhold performance merely because the other party has
not tendered performance pari
passu
or expressed his willingness to perform at a later date.”
I
did not understand counsel for the applicant to challenge the
correctness of this principle.
His
contention, rather, was that there were no consecutive obligations
imposed by the parties on the return to the applicant by the
respondent of the vehicle in question and that this was a defence
mounted by the respondent as an afterthought to the vindicatory
claim.
It
is necessary therefore to consider the facts.
The
vehicle was a benefit afforded to the respondent in terms of a
contract of employment with the applicant. That contract has since
been terminated. The respondent has therefore to establish a defence
to the claim by the applicant for the return of its vehicle to its
possession. The respondent has contended that the applicant was
obliged to repair, service and register in her name, the vehicle she
had purchased from the former and which was still in its name. The
respondent has not produced a written contract and seeks to rely on
an alleged oral agreement which the applicant disclaims.
The
return of the vehicle was claimed by way of a written communication
to the respondent dated 6 October 2008 but delivered to the
respondent on 8 October 2008. Her own vehicle was returned under
cover of the letter in question. The respondent received and retained
her own vehicle but refused to surrender the applicant's. She wrote
a note in which she raised the lack of insurance on the vehicle
(hers), the lack of a licence, and that the vehicle, presumably hers,
had nothing to do with her contract as “GM Finance and Corporate
Affairs.”
On
9 October 2008, acting on instructions from their client, the
applicant's legal practitioners addressed a suitable letter to the
respondent demanding a return of the vehicle. The letter received a
prompt reply from the respondent's legal practitioners, who
requested for an extension to 27 October 2008 for their client, the
respondent, to have use of the vehicle.
The
alleged contract now being sought to be relied on as a defence was
not alluded to by the legal practitioners in question.
The
request was acceded to by letter dated 21 October 2008, and, on 22
October, the respondent's legal practitioners then wrote a letter
to the applicant's legal practitioners requesting an indefinite
extension for their client to return the vehicle. This was turned
down and a repeated demand was made for the return of the vehicle
ultimately resulting in the launching of these proceedings by the
applicant for the recovery of its vehicle.
The
respondent's use of the applicant's vehicle was by virtue of her
employment with the applicant and her right to retain possession
terminated with her dismissal from employment. She did buy a vehicle
from the applicant and whatever obligations the applicant assumed
under that agreement, those obligations were not tied to the
respondent's use of her officially allocated vehicle as a member of
staff of the applicant.
It
is clear on the facts that the obligation by the applicant to service
and repair the respondent's vehicle arose from the use by the
respondent of her vehicle on the applicant's business and that this
usage had occurred prior to her being suspended from duty. In any
event, the communication from herself and her legal practitioners,
prior to the institution of these proceedings, does not establish an
oral agreement as alleged by her for the rectification of defects on
her vehicle. There was no demand by her for the alleged service and
repairs to be effected before she could return the applicant's
vehicle. Indeed, as submitted by counsel for the applicant,
repairs to her vehicle was not a condition upon which the parties had
agreed for her to retain the applicant's vehicle. Rather, she is
seeking to justify her retention of the vehicle on the basis of
claims arising out of her contract of employment which she has not
even litigated upon.
In
the premises, I find that the applicant is entitled to an order as
prayed. I therefore make an order in the following terms:
IT
IS ORDERED THAT:
1.
The respondent, within 24 hours of the date of service of this order
upon her, shall deliver the applicant's vehicle viz,
a Toyota Corolla registration number AAP 6950 to the applicant's
premises at Pockets Hill, Highlands, Harare.
2.
In the event that the respondent fails to comply with paragraph 1.
above, then the Sheriff for Zimbabwe or his lawful deputy is hereby
ordered and authorized and required to seize the aforementioned
vehicle from the respondent or from whomsoever or wherever it may be
found and to deliver the same to the applicant.
3.
The Deputy Sheriff is authorized, in the execution of his duties
above, to enlist the assistance of members of the Zimbabwe Republic
Police as he may deem necessary.
4.
The respondent shall pay the costs of this application.
