The plaintiff joined the first defendant on 1 July 2006. He was employed by the first defendant as its Financial Controller and Company Secretary. It was a specific term of his employment that the plaintiff would be entitled to the use of a motor vehicle and to participate in the Group motor vehicle scheme. In due course, a Mazda 3 was procured and allocated to the plaintiff.

On 31 July 2007, the plaintiff left the employment of the first defendant. He took the motor vehicle with him. On 10 August, he was recalled to the offices of the second defendant, the holding company for the first defendant, to discuss the issue of the motor vehicle. After discussions, the plaintiff swore to an affidavit in which he deposed that he had sold the motor vehicle to the first defendant. He then surrendered possession of the vehicle to the first defendant but retained the registration book of the motor vehicle and the spare keys to the vehicle.

On 7 September 2007, the plaintiff issued summons against the defendants, claiming the following orders:

“1. Declaring that the purported sale of the Mazda 3 Registration Number AAV 8577; Engine No. LF614706; Chasis No. JMZBK12F201323749, non-existent, null and void ab initio;

2. Declaring that the affidavit issued and authoured by defendants and signed by plaintiff which confirms the purported sale is null and void ab initio because of having been induced by duress, and, moreso, for lack of compliance with lawful and proper laws of authentication and commissioning (notarial practice).

3. Compelling the 1^st and 2^nd defendants to restore possession of the vehicle, Mazda 3 registration Number AAV 8577; Engine No. LF614706; Chasis No. JMZBK12F201323749 to the plaintiff within 24 hours of this order; and, in the event that the 1^st and 2^nd defendant have failed to do so, the Deputy Sheriff is and hereby ordered to effect restoration of possession and ownership of the vehicle to plaintiff from 1^st and 2^nd defendants by whatever means available to his disposal;

OR, ALTERNATIVELY

4. In the event that the 1^st and 2^nd defendants having changed ownership of the vehicle referred to in paragraph 1, all defendants are hereby ordered to reverse the ownership into the names of the plaintiff within seven days of this order and the event of failure to do so, the Deputy Sheriff is hereby ordered to reverse ownership into the name of the plaintiff.”

The suit was defended.

In the main, the defendants contended that the plaintiff had compromised any alleged rights that he had to the motor vehicle under the scheme and his contract of employment when he voluntarily agreed to pay for the motor vehicle at its market value before he could claim it as his.

At the trial of the matter, the plaintiff gave the following evidence.

He was employed by the first defendant as Financial Controller and Company Secretary on 1 July 2006. In terms of the contract of employment, he was entitled to the use of a vehicle. A new motor vehicle scheme was then introduced in September 2006. As he was in the requisite grade, he was entitled to participate in the new scheme. In April 2007, he was informed by the Human Resources Executive that the scheme was now operational. A couple of e-mails were exchanged between the parties in this regard. He was given a loan agreement whereby the first defendant was loaning to him a sum equivalent to the cost price of the vehicle. The amount of the loan was agreed in the sum of $5,304,200=. He duly signed the loan agreement, and, in due course, the deductions specified in the agreement to offset the loan were made against his salary.

At some stage, he discussed the issue of the change of ownership of the motor vehicle into his name with the first defendant's Managing Director, who then facilitated such.

In July 2007, he tendered a letter indicating his intention to resign from the first defendant. After discussing the issue with his Managing Director, he paid up the balance outstanding on the loan. On July 31, he terminated his employment with the first defendant and took the motor vehicle with him.

On 1 August he was invited to a farewell party at which his Managing Director intimated that the motor vehicle scheme would be varied. This was soon followed by a request that he attends a meeting at the offices of the second defendant. The request and the meeting were on August 10 2007. Present at the meeting were the Group Managing Director, Mr B Kumalo, the Group Commercial Director, Mr Morris Chinyani. He was advised that the defendants were going to revalue the vehicle. Mr Kumalo then gave him an affidavit to sign. In giving him the affidavit, he said if he did not sign it, he, Kumalo, was going to incarcerate him. At the time, he had an aunt who was not feeling well. He intended to travel and attend to her. Kumalo forced him to sign the affidavit, which he did. Had he not been forced to sign the affidavit, he would have prepared it himself and supplied all the details missing from the affidavit.

The defendants withheld the motor vehicle.

On the same day of the meeting, Kumalo wrote a letter confirming that he would have the vehicle revalued. He followed this, on 20 August, with another letter, advising the plaintiff the amount that he had to pay. The plaintiff got the impression that Kumalo was now revaluing the loan and sought the advice of his legal practitioners.

He denied that the parties reached any agreement and that he compromised his claim to the vehicle.

Under cross–examination, the plaintiff testified that he was only threatened with incarceration by Kumalo after he had brought the motor vehicle back. In this regard, he testified that two meetings were actually held on the same day even though he would not refer to the second one as a meeting. The threat came after the inspection of the vehicle.

The plaintiff did not impress as a witness. I gained the impression that he was not telling me the truth about the circumstances, nature, and the time when he was allegedly threatened and coerced against his will into signing the affidavit. He was clearly inconsistent on this point.

Firstly, he testified that he was coerced into signing the affidavit during the course of the meeting. When he was asked why he did not report the extortion to the police when he went to his house to pick up the motor vehicle, he realized the inadequacy of his testimony and altered it to allege that he was only threatened after he had brought the vehicle to the defendant' premises.

He was not detailed or clear as to the nature of the threat and how this may have broken his will and made him do what Kumalo requested of him. His alleged fear of incarceration was most unreasonable in the circumstances where he had not committed any offence and no allegation of criminality was being levelled against him. No police were in attendance at the meeting and no evidence was adduced to the effect that a report had been made against him to the local police.

The sick aunt, who later sadly passed on, was not mentioned during the meeting and there was no evidence adduced that Kumalo was aware of her and her condition and used this to bend the will of the plaintiff to his purposes.

All in all, I find the evidence of the plaintiff on this issue most unreliable especially when I compare it with the evidence of the defendants' witnesses as to what transpired at the all important meeting of 10 August 2007.

In my view, having found the evidence of the plaintiff unreliable on the above issue, this marks the end of the inquiry into the matter as the plaintiff has failed to prove, on a balance of probabilities, that he was coerced into parting with possession of the motor vehicle and was further coerced into entering into a new arrangement regarding the motor vehicle.

I shall, however, proceed to briefly summarize the evidence that was led on behalf of the defendants.

The defendants called four witnesses.

The first to testify was Morris Fortune Nhamo Chinyani. He is the Board Chairman of the first defendant, and, at the time of the meeting of 10 August 2007, he was the Group Commercial Director for the second defendant.

On 10 August 2007, he attended the meeting at which the plaintiff surrendered possession of the motor vehicle to the defendants. He recalls that at the meeting the position of the defendants was put to the plaintiff. This was to the effect that the motor vehicle scheme had been put in place to attract and retain executives and that in the opinion of the defendants, the plaintiff had not earned the vehicle as yet as had only served for ten months after the introduction of the scheme. The plaintiff agreed with the sentiments of the representatives of the defendants present and further agreed to return the vehicle to the first defendant pending its evaluation. It was also agreed in the meeting that the valuation would give him a figure to pay for the vehicle should he wish to purchase it. The meeting was cordial and the plaintiff was not threatened in any manner. He agreed that the first defendant could change back from his name the ownership of the vehicle in the event that he did not pay for the vehicle within a reasonable time. He then signed an affidavit that would allow the first defendant to effect the necessary changes.

The witness gave his evidence clearly and in measured tones. His understanding of the terms of the loan agreement and of the motor vehicle scheme may not have been legally correct, but that, in my view, does not detract from his credibility as a witness.

The defendant also called the evidence of Cannan Samkange. He is the Group Human Resources Executive for the holding company. He was in attendance at the meeting of 10 August 2007 when the plaintiff surrendered the motor vehicle to the defendants. At the meeting, he recalls that Kumalo asked the plaintiff whether by leaving the employment of the first defendant when he did, the plaintiff thought that it was fair and right that he takes the motor vehicle with him. After some hesitation, the plaintiff conceded that it was not. Regarding the way forward, the plaintiff asked the executives present to spell out what the defendants wanted. Kumalo advised the plaintiff that he wanted the vehicle returned or for the plaintiff to pay a fair price for it. The plaintiff opted to purchase the vehicle at a fair price.

The plaintiff then signed the affidavit that was prepared for him in the presence of the three executives who attended the meeting. In signing the affidavit, the plaintiff was not threatened at all. After some time, the vehicle was brought back by the driver who had been assigned to accompany the plaintiff to his residence to collect the vehicle. The witness went to inspect it and found all the accessories intact save for the registration book and the spare keys to the vehicle. The plaintiff invited him to pick these up later at his residence as they were locked up in the plaintiff's bedroom.

The witness came across as honest and reliable. He was forthright in his responses to questions put to him under cross-examination and was quite clear as to the policy of the defendants regarding the motor vehicles and why certain decisions were made and implemented. He was also clear on the relationship between the plaintiff and the defendant regarding ownership of the vehicle. He testified that while the plaintiff held the registration book, the vehicle belonged to the first defendant who had a say as to how it was used until ownership in the vehicle was transferred to the plaintiff.

I shall rely on the evidence of this witness.

The defendants also called Richard Nyatsoka. He is Managing Director of the first defendant. He was the plaintiff's immediate boss.

The witness testified as to the terms of the motor vehicle policies that the defendants had and how the plaintiff qualified under the second defendant's policy. He also confirmed that he had authorized the plaintiff to transfer registration of the vehicle into his name. Towards the end of July 2007, he discussed with the plaintiff the imminent departure of the plaintiff and how the defendants would treat the vehicle now that the plaintiff was leaving. At the time the plaintiff left employment, he was under the impression that the plaintiff would leave the vehicle behind. In accordance with proper corporate decorum, he did not repossess the motor vehicle from the plaintiff on the plaintiff's last day of service. He only learnt, on 7 August, that the plaintiff had failed to surrender the vehicle to the defendants. At this stage, he was on leave. He spoke to the plaintiff about the issue but did not attend the meeting of 10 August when the vehicle was surrendered. He returned from leave on 27 August to learn that the vehicle had been returned and the plaintiff had agreed to pay a fair price for it should he wish to purchase the vehicle.

Generally, the witness gave his evidence well and would make good eye contact, giving the impression that he was telling the truth and had nothing to hide. He was however not present at the all important meeting of 10 August, and, thus, in my view, his evidence is of marginal value.

Like the first witness, I find that the interpretation given to some of the clauses of the loan agreement and of the motor vehicle scheme by this witness may not be legally sound, but, again, in my view, this cannot detract from his generally favourable demeanor in the witness box.

The last witness to testify for the defendants was Benjamin Nkosentya Kumalo. He is the Group Managing Director of the second defendant. He called for the meeting held on 10 August 2007 to discuss the issue of the motor vehicle with the plaintiff. In attendance at the meeting were the plaintiff, the Group Human Resources Executive, and the Group Commercial Director and Chairman of the first defendant.

At the meeting, which the witness chaired, he asked the plaintiff how he had transferred registration of the motor vehicle and how much he had paid for the vehicle for the short period that the scheme had been operating before he terminated his services. He further asked the plaintiff whether, in the circumstances, his taking of the motor vehicle did not amount to unjust enrichment. The plaintiff agreed with the sentiments expressed on behalf of the defendants. The parties proceeded to determine a formula by which a fair price for the vehicle would be established and at which price the plaintiff would purchase the vehicle. The plaintiff requested for a letter from the witness confirming what the parties had agreed to so that he would be protected from any possible reneging by the defendants. The witness wrote a letter confirming that he would commission an evaluation of the motor vehicle and inform the plaintiff about the established value in due course. The meeting was quite amicable and he did not threaten the plaintiff in any manner. The plaintiff agreed to and voluntarily surrendered the motor vehicle. The parties also agreed that the plaintiff signs an affidavit that would assist the first defendant in re-registering the vehicle into its name in the event that the plaintiff did not pay a purchase price equivalent to the market price of the vehicle within a reasonable time.

The witness commissioned the affidavit as he is an ex officio Commissioner of Oaths.

He was present when the vehicle was brought to the premises although he did not go to inspect it. There was no subsequent meeting after the vehicle was brought to the premises. A few days later, he wrote to the plaintiff advising him of the fair market value of the vehicle.

The witness was impressive in the witness box. He gave his evidence well. He answered all questions put to him under cross–examination with forthright answers. His understanding of the terms of the loan scheme and of the loan agreements was, in my view, legally sound and he readily accepted that he had commissioned the affidavit by the plaintiff even though he had an interest in the matter as he was unaware that he could not do so.

I will rely on the evidence of this witness.

At the pre-trial conference of the matter, five issues were identified as falling due for determination at the trial of the matter. These were framed as follows:

1. Whether there is a valid and enforceable agreement of sale of the motor vehicle in dispute by the plaintiff to the defendant.

2. Whether the affidavit signed by the plaintiff is null and void by reason of duress and improper authentication and commissioning.

3. Whether the plaintiff is entitled to the motor vehicle in dispute in terms of the Motec Vehicle Scheme.

4. Whether the plaintiff is entitled to pay the sum of $4,5b to the first defendant and purchase the vehicle in dispute from the first defendant.

5. Whether if the first defendant has changed ownership of the vehicle in dispute, such change of ownership could be reversed.

At the hearing of the matter, the plaintiff abandoned his alternative prayer for the payment of the sum of $4,5b, thus leaving four issues for determination.

With respect, in my view, the four issues as settled at the pre-trial conference do not capture the essence of the dispute between the parties.

It is common cause that the plaintiff was entitled to possession of the motor vehicle during the course of his employment with the first defendant. It is further common cause that the plaintiff did not sell the motor vehicle back to the first defendant as captured in the affidavit that he swore to on 10 August 2007.

In my view, the dispute between the parties is whether the plaintiff is entitled to ownership of the motor vehicle in terms of his contract of employment, and, if so, whether he has waived or compromised his entitlements thereto.

The founding document in this dispute, in my view, is the second defendant's Group Management Vehicle Purchase Scheme. It is common cause that this is the scheme under which the plaintiff became entitled to the use of the motor vehicle in question. It is also common cause that this document has to be read together with the loan agreement between the parties.

While I accept that the loan was granted on paper, with no money actually changing hands, in my view, the importance of the loan agreement, as a document, lies in establishing the purchase price of the vehicle. It is in the loan agreement that the amount representing the purchase price of the vehicle is set. The motor vehicle scheme simply makes reference to the loan agreement in respect of the purchase price of each vehicle falling under the scheme.

In my view, the plaintiff, having qualified to participate in the motor vehicle scheme, was clearly entitled to the motor vehicle in terms of that scheme during the course of his employment with the first defendant and would have been entitled to the vehicle upon termination of his employment upon satisfying the terms of the scheme and of the loan agreement.

Richard Nyatsoka testified that it was a requirement of the loan agreement and of the motor vehicle scheme that the plaintiff had to approach him, as Managing Director of the first defendant, before he paid up the balance outstanding on the loan.

I read no such term in the scheme.

It may have been the practice that the defendants wished to obtain on the ground but it was not a specific term of either of the two governing documents. I further do not read into the scheme an implied term that the whole amount of the loan, which incidentally represented the purchase price of the motor vehicle in issue, had to be re-valued on the date of repayment, to take into account the appreciated value of the vehicle. This was the understanding of the defendants' witnesses. It is however not in the letter of the agreement.

I may add here, for the benefit of the defendants, that if it is their wish to dis-entitle employees who have not served the organization for the requisite number of years for each model of the qualifying vehicles, then this must be clearly spelt out in the motor vehicle scheme. Similarly, if it is their wish to reserve the right to the defendants to revalue vehicles on the date of disposal to the employee, again this is spelt out in clear language in the motor vehicle scheme. The letter of the scheme as it stands bears little, if any, bearing to their understanding of what the rights and obligations of the employees are under the scheme.

On the basis of the foregoing, I have no doubt in my mind that having paid for the balance outstanding on the loan agreement before his employment with the first defendant terminated, the plaintiff was entitled to claim ownership of the vehicle under the motor vehicle scheme.

However, as counsel for the defendants points out, and correctly so in my view, the parties reached another agreement on 10 August 2007, in terms of which the plaintiff surrendered his entitlement under the motor vehicle scheme and agreed that he would pay the market price of the vehicle if he desired to own it.

The issue is to determine the nature and effect of this subsequent agreement.

In his pleadings, the plaintiff seeks to avoid this second agreement by pleading that is not binding on the parties as it was induced by duress.

I have already found above that I do not believe the plaintiff's testimony that he was threatened at all during the meeting of 10 August to come to a position contrary to his volition. I note that counsel for the plaintiff, in his closing submissions, has not pressed me to find that the plaintiff was compelled by reasonable fear of any imminent evil to his person to agree to surrender the motor vehicle and to be able to acquire ownership of the vehicle by way of a purchase.

The issue that I now have to determine in this matter is whether there was an agreement reached on 10 August 2007 and whether the effect of that agreement was to supersede the obligations and rights that the parties had agreed to prior.

I have no doubt in my mind that the parties were in agreement on 10 August 2007. The essence of that agreement was that the plaintiff would return the vehicle to the first defendant, that the vehicle be re-valued and that if he wished to own the vehicle, the plaintiff had to pay its market value, as established by the evaluation.

I have indicated above that, in my view, the plaintiff was entitled to ownership of the vehicle upon the termination of his employment and after having paid off the balance outstanding in accordance with the provisions of the loan agreement as read with the motor vehicle scheme. The plaintiff may not have been confident of his rights in this regard, or may have been aware that the defendants held a different interpretation on the provisions of the two documents governing the issuance and ownership of motor vehicles between the parties. This is all now speculation on my part and is largely irrelevant in view of the new agreement that the parties concluded on 10 August 2007. I raise the issue simply to buttress my conclusion that by entering into the new arrangement, the plaintiff adversely affected his rights under the prior contract and may have done so ill-advisably. It is my view that the second agreement was ill advised but is nonetheless binding on the parties like any other bad bargain.

Our law of contract has for long recognized that a new agreement that settles a dispute operates as res judicata in respect of the old agreement and in itsself becomes a valid and binding contract between the parties. Not only can the original cause of action no longer be relied upon, but a defendant is not entitled to go behind the compromise and raise defences to the original cause of action when sued on the compromise. See Road Accident Fund v Ngubane 2008 (1) SA 432 (SCA); Lieberman v Santam Ltd 2000 (4) SA 321 (SCA)…,.; Hamilton v Van Zyl 1983 (4) SA 379 (E); and Majora v Kuwirirana Bus Service (Pvt) Ltd 1990 (1) ZLR 87 (SC).

This, in our law, is referred to as a compromise.

The courts in South Africa have even moved on to hold that a compromise need not necessarily, however, follow upon a disputed contractual claim. Any kind of doubtful right can be the subject of a compromise. A valid compromise may be entered into to avoid even on a clearly spurious claim.

Counsel for the plaintiff submitted that there was no dispute between the parties.

With respect, I do not agree.

The parties clearly had a dispute regarding the ownership of the motor vehicle. In any event, on the authority of the above authorities, even if the parties were not locked in a dispute, they could still validly conclude a compromise as to the possession and ownership of the vehicle, which, in my view, they proceeded to do.

In establishing whether a claim has been compromised, one is concerned simply with the principles of offer and acceptance. See E Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd 2008 (2) SA 327 (SCA).

In casu, I am satisfied that at the meeting of 10 August 2007, the parties reached a compromise.

In my view, at this meeting, the parties achieved consensus on all the relevant contractual requirements. They unequivocally intended to settle the dispute of the motor vehicle by this new consensus. In terms of this new consensus, I am satisfied that the defendants offered to sell the vehicle to the plaintiff for its market value and the plaintiff, in turn, accepted the offer. He asked the defendants to reduce the offer to writing, which Kumalo did in his letter of 10 August 2007. Thereafter, the plaintiff did not pay for the motor vehicle in terms of the agreement and is thus not entitled to claim possession and ownership of the vehicle. It is my further view that he showed his acceptance of the offer by surrendering the vehicle and demanding that the offer be put in writing so that the defendants would not backtrack on same.

In my view, the parties before me compromised the dispute of the motor vehicle on 10 August 2007. The effect of the compromise was to discharge the prior agreement embodied in the loan agreement and in the motor vehicle scheme. It established a new contract between the parties that is binding and enforceable. The new contract does not entitle the plaintiff to possess the motor vehicle. It entitled him to purchase the motor vehicle upon certain terms and conditions - which terms and conditions the plaintiff did not comply with.

On the basis of the foregoing, there is thus no basis upon which the plaintiff's claim can succeed. As is clear from the authorities, the plaintiff is not allowed to raise the old agreement to raise a cause of action against the defendants.

In the result, I make the following order:

The plaintiff's claim is dismissed with costs.

On receipt of their retrenchment packages, the respondents undertook to vacate Greenhills Farm. They declared as follows -

“We, the undersigned workers, voluntarily choose to accept a retrenchment package from the owners of Intercontinental Holdings (Private) Limited t/a Prima Flora, understanding that it complies with S.I.252 of 1992. The package to be paid will be as follows:-

Three months notice pay;

Three months severance pay;

Three months relocation allowances;

Outstanding leave;

Gratuity of two months per completed year worked.

After payment, as stated above, is received, we agree to vacate the farm within forty eight hours. We have no other claims against the farm or owners in question. We acknowledge this notice constitutes formal notice of termination of employment required by law, and commences 1 May 2006 and shall end 31^st May 2006. It is agreed that NSSA, NEC, and any income tax, will be deductible from the amounts below, and our attached signatures hereby confirm that we are in agreement with the amount of monies to be received.”

The retrenchment package referred to in the above declaration is in line with what was approved by the Ministry of Public Service, Labour and Social Welfare.

Contrary to their undertaking, the respondents have not vacated Greenhills Farm, and, hence, this application.

The applicant argues that the respondents are not entitled to continued occupation of Greenhills Farm. Many efforts have been made to ensure the departure of the respondents from Greenhills Farm – but to no avail.

Counsel for the applicant submitted that he would abide by the filed Heads of Argument. I then asked Veronica Nechitima to respond to the applicant's arguments on her own behalf, and on behalf of the other respondents.

She reluctantly proceeded and submitted that in the main the respondents would have preferred to meet face to face in court with Mr.Dobson, the applicant's Managing Director. She then submitted that the main issue was that although they accepted payments under the retrenchment package, the package had been signed for by management. The respondents had no problems though with the package except that it was not based on the agreed May increases.

Veronica Nechitima admitted that the employment relationship between the respondents and the applicant had terminated at the end of May 2006 when all the respondents were paid their packages. She said, however, they had to accept the money since “no one can refuse money.” In the main, Veronica Nechitima's arguments were that they had nowhere to go and served the applicant for a long time, and that the retrenchment package had been irregularly imposed on the respondents.

The papers before me clearly indicate that the respondents were retrenched in terms of the law. The respondents accept that Greenhills Farm is owned by the applicant and that they could only remain there by virtue of their employment. When that employment was lawfully terminated as the end of May 2006, through agreement, and subsequent approval by the relevant Ministry, the respondents had no right to remain at Greenhills Farm.

Assuming that the respondents were being provided with employer accommodation at Greenhills Farm, the maximum period of remaining at Greenhills Farm, after termination of employment on 31 May 2006, would have been one month. Even if we were to extend that to 7 June 2006, when the Ministry of Public Service, Labour and Social Welfare approved the retrenchment package(s), the respondents would still remain unprotected by the law. This is so because section 12(6) of the Labour Act [Chapter 28:01] provides as follows -

“1. ...,;

2. ...,;

3. ...,;

4. ...,;

5. ...;

6. Whenever an employee has been provided with accommodation directly, or indirectly, by his employer, the employee shall not be required to vacate the accommodation before the expiry of a period of one month after the period of notice specified in terms of subsection (4) or (5);

7. ..,.”

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township, Bindura was ordered together with costs of suit.

On 4 February 2008 the first respondent issued summons out of this court, in case number HC642/08, alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003 which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent. The first respondent further averred that the applicant's employment, having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated. The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008. On 12 May 2008 the first respondent submitted an application for default judgment which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant) was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005 - it is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed. What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so many be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008. He goes on to say that he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price. In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said “rent-to-buy” showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued, on behalf of the first respondent, that, as the owner of the house with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance to the first respondent of the purchase price. He vehemently argued that in terms of that lease agreement the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed. He took the view that as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced. The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007. Counsel for the applicant insists that letter is a recent fabrication by the first respondent and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005 giving the applicant notice of his retirement on 31 December 2005. The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules, 1971 provides:-

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:-

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules, 1971 are well established. They have been discussed and applied in many decided cases in this country. See, for instance, Barclays Bank of Zimbabwe Ltd v C C International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226 E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211 C-F.

They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant for failure to respond to the summons is not convincing especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to respond to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S) that the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgment has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter I stated:-

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast', if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees' representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction. The same instalment is reflected on a written lease agreement.

It must be understood that in an application of this nature the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled that the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale. That issue was considered by MAKARAU JP…, in; 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H) which matters involved the same arguments as in casu. She distinguished that case and concluded…, as follows:-

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation. I am not aware if that judgment has been challenged but until such time that it is overturned I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view that the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment. Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgment entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

The applicant and the respondent were employer and employee respectively. The respondent was employed by the applicant as its Chief Pharmacist with effect from 1 December 2002 up to November 2008. It was a specific term of her employment that the respondent would be entitled to the use of a motor vehicle during the course of her employment.

At the time of her joining the applicant, there was no policy in place regulating the use and entitlement to the vehicle. Such was put in place later and there is no dispute between the parties that it applied to the respondent.

In terms of her contract of employment, the applicant was allocated a VW Polo registration number AAG 1727.

On 30 October 2008, the respondent wrote to the applicant, giving notice of her intention to resign from employment. In her letter, she indicated that her last working day would be 17 November 2008. She indicated that she had some days that had accrued to her as leave which she intended to forfeit in lieu of the requisite notice period.

It may be pertinent to note, at this stage, that while the parties wrangled for some time as to whether the respondent had given adequate notice or not, that dispute is not before me and has since been resolved. The status of the respondent as a former employee of the applicant is thus not in dispute.

On 14 November 2008, three days before her last working day, the respondent wrote to the applicant seeking to clarify her calculation of the notice period she had given to the applicant. In the second paragraph of the letter she wrote that she was entitled to purchase the motor vehicle in her possession. It is not clear on the papers how this issue had arisen.

On 17 November 2008, the respondent left the employment of the applicant taking the motor vehicle with her. The applicant, not being persuaded that the respondent was entitled to retain possession of the vehicle after the termination of her employment, wrote to the respondent requesting her to surrender the vehicle. The respondent did not return the vehicle maintaining that she was entitled to purchase the vehicle. This prompted the applicant to file this application seeking an order compelling the applicant to surrender the vehicle to it.

The application was opposed.

In opposing the application, the respondent objected to the jurisdiction of this court, arguing that the dispute between the parties is essentially a labour issue over which the Labour Court has exclusive jurisdiction.

Further, the respondent argued that notwithstanding that her last working day was in November 2008, she remained an employee of the applicant until her notice period had run out, and, as at the time she left employment, the applicant's motor vehicle policy applied to her, entitling her to purchase the vehicle. She further alluded to an agreement between the parties wherein the applicant's agent had agreed that the applicant would sell the vehicle to her and that the only remaining issue to be agreed upon was the currency in which the transaction was to be concluded.

I will deal with each of the issues arising from the respondent's opposing affidavit.

The issue of when the jurisdiction of this court is ousted in favour of the exclusive jurisdiction of the Labour Court has been before this court in a number of instances. In my view, it is the settled position at law, now, that the jurisdiction of all other courts is excluded in matters where the Labour Court has been granted specific jurisdiction by the Labour Act [Chapter 28.01] (“the Act”). See Tuso v City of Harare 2004 (1) ZLR 1…, and Zimtrade v Malord Makaya HH52-05.

The issue that falls for determination in this application is whether the dispute before me is a dispute that the Labour Court has exclusive jurisdiction.

Section 89(6) of the Labour Act provides that:

“(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).”

Section 89(1) of the Labour Act provides:

“(1) The Labour Act shall exercise the following functions -

(a) Hearing and determining 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.”

In interpreting these two sections of the Labour Act, this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Labour Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in the Labour Act.

In all other matters, where the cause of action and the remedy are at common law, the jurisdiction of this court is not ousted.

It is common cause that the applicant and the respondent are no longer employer and employee respectively. The resignation of the respondent as the applicant's Chief Pharmacist is not in dispute. The dispute between the parties centres on the possession of the applicant's motor vehicle to which the respondent claims a right.

While it has to be accepted that the respondent's claim of right to the motor vehicle arises from her terminated contract of employment with the applicant, this is a far cry from holding that there is a labour dispute between the parties that can find a remedy or resolution in terms of the Labour Act.

The resolution of the dispute between the parties is not entwined with the resolution of the contract of employment as was the case in Zimtrade v Malord Makaya HH52-05, where, pending determination of the contract of employment, the employer sought to repossess its assets from the employee using the rei vindicatio.

It appeared to me then to be the correct position at law that where the validity of the suspension of the employee or the termination of their employment is still pending, the rei vindicatio could not properly lie at the instance of the employer. I am still of the same view. On the contrary, where the status of the former employee is without dispute, the rei vindicatio can lie at the instance of the employer, in appropriate cases, and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment.

It is my view that 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 the Labour Act.

On the basis of the foregoing, I would dismiss the point in limine raised by the respondent and hold that the jurisdiction of this court over this matter remains.

I now turn to the second issue.

The applicant seeks an order compelling the respondent to surrender to it possession of the motor vehicle that was allocated to her during the course of her employment. The respondent has opposed the order on the basis that she is entitled to purchase the motor vehicle. She argues, and validly so in my view, that she exercised the option to purchase the motor vehicle during the subsistence of her employment with the applicant.

It is common cause that the applicant's motor vehicle policy provided, in clause 5 thereof, that a vehicle allocated to an employee would be replaced after 4 years and that such a vehicle would be sold to the user at 50% of its market value if the user opted to purchase the vehicle. It is also not in dispute that the vehicle allocated to the respondent had reached its retirement age, and, further, that the respondent indicated her option to purchase the vehicle before she left employment, albeit, during the very last days of her employment as if the purchase of the vehicle was an afterthought.

That the respondent has the right to purchase the motor appears to me not to be above reproach.

In its founding affidavit, the applicant deposed to its belief that the respondent was not entitled to purchase the motor vehicle in dispute as she had resigned when she purported to exercise her right as given under the contract of employment.

The applicant was erroneous in its belief in this regard.

As correctly conceded by counsel for the applicant, during the hearing of the matter, the respondent exercised her option to purchase the motor vehicle whilst still an employee of the applicant and the applicant is bound to sell the motor vehicle to her. In this regard, reference has to be made to the letter of the respondent of 14 November 2008 wherein she inelegantly referred to her entitlement to the vehicle without specifically spelling it out that she was electing to purchase the vehicle. The option was however exercised and when it was exercised, the respondent was still an employee of the applicant. It is common cause that she ceased to be an employee on 17 November 2008 and not before.

The issue that remains for my determination in this matter is whether the respondent is entitled to retain possession of the motor vehicle pending the finalization of the agreement of sale between the parties.

I am unaware of any law that entitles a prospective purchaser to have possession of the merx against the wishes of the seller, prior to delivery of the merx in terms of the sale agreement. I was not referred to any such law during the hearing of the matter. My limited research has not yielded any.

I am aware that in some instances, where there is an amicable relationship between the parties, for instance, where the employer-employee relationship still subsists or was amicably terminated, the seller may allow the prospective purchaser who is already in possession of the merx to retain possession pending finalization of the sale. Another instance that immediately suggests itself is where a tenant purchases the leased property from the landlord. Such a tenant may remain in occupation pending finalization of the agreement of sale and transfer. An analysis of the two examples I have given above will reveal that they are borne out of consent. They cannot thus be cited as precedent for creating any right or entitlement on the part of similarly circumstanced prospective purchasers to enforce possession against the wishes of the seller.

Where the arrangement obtains, in my view, it is simply an incidence of an owner willingly parting with possession of his property pending transfer of ownership in favour of the possessor. Such willingness on the part of the seller cannot be compelled by an order of court.

On the basis of the foregoing, I am of the view that notwithstanding my finding above that the respondent has the right to purchase the motor vehicle in question in terms of the provisions of the applicant's motor vehicle policy, she is nevertheless not entitled to retain possession of the vehicle against the wishes of the applicant pending the finalization of the agreement of sale.

In the result, I make the following order:

1. The respondent, or any person possessing through her, shall, upon service of this order, surrender to the applicant a motor vehicle, namely, a VW Polo, registration number AAG 1727, failing which the Deputy Sheriff is hereby empowered to take possession of same and hand it over to the applicant.

2. The respondent shall bear the costs of this application.

The first respondent is the owner of the property known as Stand No. 492, Bautina Road, Chiredzi.

On or before 14 May 1991, the respondent leased the property to RMS (Pvt) Ltd, a section or branch of the first respondent. On 23 April 1991, the property was inspected for occupation and on 14 May the applicant, an employee of RMS (Pvt) Ltd, took occupation.

On 14 January 1999, following a Collective Bargaining Agreement between itself and its employees, the first respondent issued a Special Notice 2313, relating to the disposal of houses. The relevant parts of the Notice, which was intended for the first respondent's employees, read as follows –

“1. It is notified for the information of staff and all concerned that the National Railways of Zimbabwe, the three unions, namely, Railway Association of Engineman (R.A.E.), Railway Artisans Union (R.A.U.) and the Amalgamated Railwaymen's Union (Z.A.R.U.), recently completed negotiations on the terms and conditions of the disposal of Railway Houses in the major and smaller urban centres.  

DISPOSAL OF HOUSES

1. The Railways agrees to dispose of houses which it holds under freehold title in major and smaller urban centres to Railway sitting tenants in Grades 4-10, and to non-Railway sitting tenants in the following order of priority.

2.1.1. Sitting tenants.

2.1.2 Married emergent staff on the waiting list.

2.1.3 In the event that the aforementioned categories of buyers do not exercise their option to purchase Railway housing on offer, the option to purchase the houses shall be given to the rest of the Railway employees who are not sitting tenants, at prices shown in clause 2.2.2.

2.1.4 Should there be houses remaining unsold, these shall be offered to members of the public who may, or may not, be sitting tenants, at market prices.

2.2 Selling Price

2.2.1 ...,.

2.2.2 ...,.

2.2.3 Non-Railway Employees: Sitting Tenants

Selling price shall be prevailing market prices at date of sale.

2.3 ...,.

2.3.1 ...,.

2.3.2 ...,.

2.3.3 ...,.

2.3.4 ...,.

3. ...,.

4. ...,.

5. ...,.

5.1 ...,.

5.2 ...,.

6. EFFECTIVE DATE

The agreement shall be effective from 1 October 1998 and shall apply to serving employees and those who were in service as at 30 September 1998.

7. MODALITIES OF IMPLEMENTING THE ABOVE AGREEMENT

7.1 Applications

Staff wishing to purchase houses will be asked to indicate, in writing, and within fourteen days from the date of publication of this Special Notice, their intention to buy the houses on offer. The applications should be submitted to Manager, Supplies and Stores, c/o Secretary, Tender Board, Room 807, Africa House. An Agreement of Sale will be entered into between the purchaser and the Administration, and the relevant forms will also be available in the office of the Chief Civil Engineer, Estates Section.

7.2 ...,.

8. ...,.”

On 11 January 2002, the first respondent entered into a direct formal lease agreement with the applicant. The effective date of the lease was 1 December 2001.

On 20 January 1999, on the basis of Special Notice 2313, the applicant addressed the following letter to the first respondent's Manager, Supplies & Stores:

“PURCHASE OF N.R.Z. DISPOSED HOUSES-RE: JL77

Sir

I, MUSHANDIKWA EZERA (R1568) Ex NRZ 311870, residing at 492 Bautina Road, Chiredzi (JL77) wish to purchase the abovementioned property on the conditions stated in Weekly Notice 2313 dated 14/1/99.

I look forward to your considerations.

Thank you.

E. Mushandikwa”

The first respondent never responded to the applicant's letter, and on 24 May 2002, the applicant wrote to the first respondent inquiring on progress. The applicant's letter, addressed to the District Civil Engineer, and indicating that an earlier inquiry had been made, read as follows:

“RE: DISPOSAL OF RAILWAY HOUSES J.L.77 (D492)

Sir

I write this letter as a follow-up to my letter dated 02/01/02 of the same reference. Please may I know the progress of the matter.

Yours faithful

Ezera Mushandikwa

(Sitting Tenant)”

The applicant did not receive any response from the respondent, and on 13 August 2002, he filed this application seeking the following relief:

“It is hereby ordered that:

1. First and second respondents be and are hereby ordered to sign an agreement of sale for Stand No. 492, Bautina Road, Chiredzi, in favour of applicant, within ten days of the granting of this order.

2. First and second respondents be and are hereby ordered to take all necessary steps to ensure transfer is effected to the applicant upon applicant making all necessary payments.

3. Should the respondents fail to comply with para 1 and 2 of this order, then leave be and is hereby granted for the applicant to lodge a copy of this order as a caveat with the Registrar of Deeds, Harare, against the property.

The above facts clearly show that there was never any agreement of sale, whether oral or written, between the applicant and the first respondent

There is no agreement which this court can confirm and/or on the basis of which it can order specific performance on the part of the first respondent.

It is not denied that the applicant was not an employee of the first respondent, and it is also not denied that prior to the lease agreement signed by the applicant on 3 December 2001, the sitting tenant was RMS (Pvt) Ltd, who had allocated the property to its employee (the applicant).

It is also interesting to note that whereas the applicant claims to have accepted the offer in Special Notice 2313 on 20 January 1999, he went on to sign a lease agreement on 3 December 2001 without raising the issue of his offer. According to the papers before me, he only makes an inquiry in January 2002 (i.e as per his letter of 24 May 2002...,.)

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 duly 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 728-511J

I, Dr. Mapfumo Takavada, do 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 Acc PSMI Head Office 0140025396501 on the 9^th of June 2007, and to complete the balance by two instalments into the same Account before the 20^th of July 2007. Meanwhile the car will be parked at PSMI Car Park as from 9^th of June 2007 until full payment is made.

In the event of me failing to settle the balance before the agreed date, the company will reimburse me my payments and repossess the vehicle.”

The applicant signed the handwritten agreement on its 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 abovementioned 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 vehicle scheme that was promulgated in 2005, and as such you have not been making monthly payments in respect of the abovementioned vehicle which renders it a company vehicle.

...,.

In view of the abovementioned reasons, the directorate has reached the decision to withhold the vehicle as it is company property.”...,.

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.

The correct history of the house that is at the centre of this dispute is that it belonged to the Department of Water, which was inherited by the Zimbabwe National Water Authority.

The then Department of Water built a number of houses for its employees in Beitbridge Town. As time went by, the Department of Water came to some arrangement with the Ministry of Health, whereby some employees of the Ministry of Health were allowed to occupy some of the houses built by the Department of Water.

The applicant, who was then employed as a clerk in the Ministry of Health, was one of the beneficiaries of that arrangement. The applicant became the tenant of the said house by virtue of his employment with the Ministry of Health.

When his employment with the Ministry of Health terminated, he was, consequently, no longer entitled to occupy the said house.

When asked to vacate the house, he refused to do so.

That being the case, the Zimbabwe National Water Authority instituted eviction proceedings in the Beitbridge Magistrates' Court against the applicant.

The applicant claims to have a defence to the respondent's claim.

He reiterated that he was on the housing waiting list, and was finally allocated the house in 1995. He would, therefore, be prejudiced if the provisional order was not confirmed, as he had been in occupation of the house since 1995.

The applicant produced no proof of being on the waiting list. Neither did he produce proof that he was offered to purchase the house.

The fact that the applicant was given a rent card, and has been paying rent religiously, is no proof that he was offered to purchase the house. Moreso, when documents filed of record reveal that the said house belongs to the Zimbabwe National Water Authority, which inherited it from its predecessor i.e. the Department of Water.  

There is evidence that he was allocated the house by virtue of being a clerk in the Ministry of Health. His entitlement ceased when he terminated employment with that Ministry.

The applicant has no entitlement to the house. He has no right over it, as it belongs to the Zimbabwe National Water Authority.

In the result, the provisional order is discharged with costs.

This is an appeal against the trial court's order of eviction.

The history of this matter is that the appellant was employed by the President's office at the department of Central Intelligence Office and was based at Beitbridge. During his employment he was allocated House Number 795 Dulibadzimu Township, Beitbridge.

The circumstances surrounding this matter are that the respondent constructed sixty houses. It then gave forty of the said houses to Beitbridge Rural District Council (hereinafter referred to as “the Council”) while it retained twenty. The twenty houses were being managed by the Council. The President's office approached the respondent for accommodation for its members of staff and they were allocated the twenty houses. The Council then started charging the occupants for water and other services.

The appellant, as an employee of the Central Intelligence Office, benefited from this arrangement and hence took occupation of this property. The Council issued him with a rent card. The issuance of a rent card was for the purpose of collecting and monitoring payments for services rendered by the Council to all occupants.

The term “rent card”, is, however, misleading as one might think that the applicant was renting accommodation from the Council, yet, in fact and in truth, the applicant had no lease agreement with the Council, therefore, he was not paying any rent at all to the Council, but, was paying for water and other services only. The reason for the use of this rent card, even if it is so referred to, was because Council has always had these cards in existence anyway. It would not, in my view, make any business sense to print and give them another title for a few people under the agreed scheme.

After termination of his services with the Central Intelligence Office, he was asked to vacate the premises allocated to him during his employment.

The appellant has argued that the house was allocated to him by the Council and he was issued with a rent card.

His argument that he was issued with a rent card for the payment of rent does not support the arrangement between the respondent and the Council. It was for the purposes of recording payment of service charges to the Council and not rent. The Council could not charge him rent in a proper and legal sense because the house was not theirs, but, that of the respondent. It was erroneous, therefore, for him to conclude that the house was now his.

The Council had no legal capacity to sell a house which is not theirs. The only legal contractual transaction would have been executed by the respondent. His former employers have all the powers to re-allocate the said house to any of its members as long as the respondent has not withdrawn the house from them.

The appellant, therefore, did not acquire this property, all he had was the right of occupation which was at the pleasure of his former employer.

This appeal is accordingly dismissed with costs.

The respondent was employed by the applicant as its Finance Manager up to July 2009 when allegations of misconduct were levelled against him.  A disciplinary hearing was convened to determine the validity of the allegations, and it found him guilty as charged.

He appealed to the applicant's Area Managing Director against the dismissal – without success.

He then appealed to the Labour Court arguing that his dismissal was racially motivated, and, in any event, the penalty meted out against him was unduly harsh. The appeal to the Labour Court was pending at the time of the hearing of the application.

After the respondent had lost his appeal to the Area Managing Director the applicant demanded the return of its assets that were in the possession of the respondent, being assets that the applicant had put into his possession in fulfilment of his conditions of service. The respondent did not hand over to the applicant a motor vehicle, an Isuzu truck bearing the registration number AAG 0764.

This prompted the applicant to file this application seeking an order compelling the respondent to deliver the vehicle.

The application was opposed.

In opposing the application, the respondent denied that he was properly dismissed from employment, and submitted that he has bright prospects of success on appeal. It was his view that the justice of the matter demands that he retains the motor vehicle pending the determination of his appeal by the Labour Court.

In my view, two issues arise.

Firstly, I have to determine whether this court has jurisdiction over the dispute between the parties. If this court does enjoy jurisdiction in the matter I must proceed to determine whether or not, pending determination of the respondent's appeal in the Labour Court, the applicant can retrieve its motor vehicle from the respondent using the rei vindicatio

From the number of similar disputes being filed with this court, one would say that there appears to be a general misconception amongst employers that one can easily avoid the jurisdiction of the Labour Court by seeking to recover property in the possession of an employee without first exhausting dealing with the termination of the employment of that employee.

This appeal deals with the oft recurring question whether an employee whose contract of employment has been terminated, and who has appealed to the Labour Court against that termination, is entitled, pending resolution of the appeal, to retain a motor vehicle allocated to him for the performance of his duties during the course of his employment. 

It also addresses the question of the jurisdiction of the High Court in these circumstances to grant relief to the employer under the rei vindicatio.

The appellant, who was employed by the respondent as the Chief Executive Officer of its subsidiary, Victoria Foods (Pvt) Ltd, was, on 3 August 2012, suspended without pay and benefits pending disciplinary proceedings to be brought against him. He was ordered to return to the respondent a certain motor vehicle, a BMW X5, allocated to him for use in the performance of his duties as the respondent's employee. He refused to do so and an additional charge of wilful disobedience to a lawful order was preferred against him.

On 3 October 2012, the determination of the disciplinary authority finding him guilty of misconduct and dismissing him from employment with the respondent was communicated to the appellant by a letter to his legal practitioners. In the same letter, the appellant was directed to surrender the vehicle to the respondent by 5 October 2012, failing which it was intended to hand the matter over to legal practitioners to obtain recovery thereof. When no positive response to the letter was received, the respondent successfully filed an urgent application in the High Court for a provisional Order. The order, dated 16 October 2012, and granted by consent of the parties, read as follows:

“TERMS OF FINAL ORDER

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. That the respondent be and is hereby ordered to surrender possession of and to return to applicant the motor vehicle, namely, a BMW X5, registration number AAX 8022, upon service of this order failing which the Deputy Sheriff be and is hereby authorised to take all and any such steps as may be necessary to recover the said motor vehicle from the respondent or any person whomsoever is in possession thereof on the authority of the respondent and return it to the applicant.

2. That the respondent shall pay the costs of suit on the Law Society of Zimbabwe scale of attorney and client.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this Provisional Order, Applicant is granted the following relief:

1. That the motor vehicle, namely, a BMW X5, registration number AAX 8022, be and is hereby placed under judicial attachment.

2. The respondent be and is hereby ordered to surrender and return the motor vehicle to the applicant's premises being c/o Victoria Foods (Private) Limited, 83 Woolwich Road, Willovale, Harare where it shall be kept/stored by the applicant pending the return day.

3. In the event of the respondent failing to comply with the terms of paragraph 2 of this order, the Deputy Sheriff be and is hereby directed and authorised to take any or all such steps as are necessary to recover the motor vehicle from the respondent or any person whomsoever is in possession thereof on the authority of the respondent and return it to the applicant for purposes of compliance with paragraph 2 of this order.

4. Both the applicant and the respondent are hereby prohibited/interdicted with immediate effect from driving, using or in any manner dealing with the motor vehicle and/or allowing any other person to do so except for the purposes of complying with this provisional order.”

On the same day, the appellant appealed to the Labour Court against his dismissal by the disciplinary authority of the respondent. 

The provisional order was confirmed by the High Court on 24 July 2013.

The appellant now appeals against the whole judgment of the High Court on grounds;

(i) Firstly, that the High Court had no jurisdiction to entertain the matter; and

(ii) Secondly, that in terms of the contract of employment, the appellant had a right to purchase the vehicle which right constituted a defence to the vindicatory action brought by the respondent.

THE JURISDICTION OF THE HIGH COURT

It was submitted by counsel for the appellant that judicial authority in this jurisdiction has established the principle that the jurisdiction of the High Court is specifically ousted in cases such as the present. Reference was made to section 89(6) of the Labour Act [Chapter 28:01], which, it was submitted, (as I understand the submission) conferred exclusive jurisdiction on the Labour Court in all matters concerning or linked to employment issues. It was submitted that the possession of the motor vehicle was so interdependently linked to the contract of employment of the appellant that one cannot decide one without deciding the other. Therefore, so the submission went, because the Labour Court has exclusive jurisdiction over one, it also has exclusive jurisdiction over the other.

Counsel relied on DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201. See also Zimtrade v Makaya 2005 (1) ZLR 427 (H).

It was further submitted that the noting of the appeal to the Labour Court had suspended the decision of the disciplinary authority dismissing the appellant, and, (presumably as an employee), he was therefore entitled to retain possession of the motor vehicle until his appeal was finally resolved by the Labour Court.

Counsel for the respondent contended, however, that this was not one of the matters over which the Labour Court could exercise jurisdiction in terms of section 89 of the Labour Act [Chapter 28:01] which circumscribes the limits of its jurisdiction; that the High Court is a superior court with inherent jurisdiction; and that there is a presumption against the ouster of the jurisdiction of a court unless this is clearly the intention of the legislature. He referred the Court to De Wet v Deetlefs 1928 AD 286…, where the principle was stated by SOLOMON CJ as follows:

“It is a well-recognized rule in the interpretation of statutes that, in order to oust the jurisdiction of a court of law, it must be clear that such was the intention of the legislature.”

And also to the following remarks by INNES CJ in R v Padsha 1923 AD 281…,:

“It is competent for Parliament to oust the jurisdiction of the courts of law if it considers such a course advisable in the public interest. But where it takes away the right of an aggrieved party to apply to the only authority which can investigate, and, where necessary, redress his grievance, it ought surely to do so in the clearest language. Courts of law should not be astute to construe doubtful words in a sense which will prevent them from doing what is prima facie their duty, namely, from investigating alleged injustice or illegality.”

In line with the above, he submitted, any provision in any statute or contract that purports to oust the jurisdiction of the courts is restrictively interpreted.

It was submitted, further, that an examination of the provisions of section 89(6) of the Labour Act [Chapter 28:01], which must be read with section 89(1) of the Labour Act [Chapter 28:01], clearly shows that section 89(1)(a) of the Labour Act [Chapter 28:01] grants power to the Labour Court to hear applications and appeals already defined in the Labour Act or any other enactment that makes reference to the Labour Act.

DETERMINATION

The Labour Court is a creature of statute. Its jurisdiction is set out in section 89 of the Labour Act [Chapter 28:01]. Sections 89(1) and (6) of the Labour Act [Chapter 28:01] 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 section 89(6) of the Labour Act [Chapter 28:01] 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 Labour Act [Chapter 28:01] are clearly set out in the Act and need no further elaboration. 

Reference was made, among others, to the applications referred to in sections 92C and 93(7) of the Labour Act [Chapter 28:01]. See also National Railways of Zimbabwe v Zimbabwe Railways Artisans Union & Others SC08-05. These are applications in terms of the Labour Act [Chapter 28:01] and no other court has jurisdiction to hear or determine such applications at first instance.

Applications or appeals in terms of any other enactment would be those where that enactment specifically provides for an application or an appeal to be made to the Labour Court. We were referred, by way of example, to the Public Service (General Conditions of Service) Regulations S.I. 1/2000 which makes reference to an appeal to the Labour Court against a decision of the Public Service Commission. As it was put, the words “any other enactment” is limited to those pieces of legislation that specifically make provision for an application or an appeal to the Labour Court.

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 section 89(1)(a) of the Labour Act [Chapter 28:01] has not been abrogated. Nothing in section 89(6) of the Labour Act [Chapter 28:01] 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 section 89 of the Labour Act [Chapter 28:01] 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….,.

The appeal on this ground therefore fails.

The plaintiff issued summons claiming:

1. Payment of $135,964= being monies due and payable to the plaintiff in respect of unpaid salary and benefits in terms of the contract of employment which the plaintiff gave written notice to terminate beginning 1 October 2004.

2. Interest from 1 January 2008 to date of payment in full calculated at the prescribed rate.

3. The release of the Isuzu KB320 registration no. 780-824W to the plaintiff within 48hours of the date of this order; and

4. Costs of suit.

The defendant entered an appearance to defend.

The basis of the claim is set out in the plaintiff's declaration as follows-

On 29 September 2004, the plaintiff tendered his letter of resignation from the defendant's employment and gave three months' notice with effect from 1 October 2004. The defendant accepted the letter of resignation but instructed the plaintiff to leave employment with immediate effect. The plaintiff avers that it was also part of the contract of employment between the parties that the company's motor vehicle the plaintiff was using, an Isuzu KB320 Twin Cab registration number 780-824W, would be given to him after it had travelled 200,000 kilometres. As it had clocked 220,000 km at the date at the date of his resignation he was entitled to the right of ownership of the vehicle.

In its plea, the defendant denied that the plaintiff gave three months' notice of resignation. It states that the contract of employment was terminated with immediate effect on 30 September, by mutual consent, after the defendant waived the three months' notice period required of the plaintiff.

At the pre-trial conference, three issues were identified for the resolution of this dispute. These are:-

a) Whether the plaintiff is entitled to cash in-lieu of leave; ….,;

b) Whether the plaintiff is entitled to $135,960= or any other lesser amount by way of cash in lieu of leave; and

c)  Whether the plaintiff is entitled to the Isuzu KB 320 motor vehicle identified above.

The plaintiff gave evidence on his own behalf on the matter.

In respect of the first issue he stated that he joined the defendant's company at a fairly senior level in 1996 and had rose through the ranks to become its General Manager (Mining) in 1998. He enjoyed the use of a company car. He enjoyed non-contributory medical aid with his family. He decided to resign. He handed in his letter of resignation to the company's Managing Director on 29 September 2004. The Managing Director requested that he meets him to discuss who was to succeed him and other handover take over issues. In his letter of resignation he pointed out that he intended to serve the three months' notice period. This effectively meant he would work up to 31 December 2004. As such, if the defendant did not require his services he would be entitled to three months' salary in lieu of notice. When he went into the meeting with the Managing Director, Mr. McTaggart, another Director, Richard Bridges, was called to attend. He says that the meeting was an acrimonious one as Mr McTaggart became rude and upset. He claims the defendant's Managing Director literally dismissed him in the meeting and ordered that he removes his property from the premises. He denied that the meeting was conducted in an amicable manner. He felt intimidated by the two Directors and ended up signing an Acknowledgement of Debt and a certificate for audit purposes. He denied that he was engaged in a private mining venture.  Had he been so found, he could be fired on the spot for conflict of interest. He disputed that the parties agreed to a mutual termination of employment. He explained why he did not protest the treatment he got by saying he felt overawed by the two Directors.

On this issue, the defendant says that when Mr. McTaggart saw the letter of resignation by the plaintiff he was concerned as to the reasons he gave. The plaintiff had helped build the defendant up to where it was. Why was he leaving? Could it be remuneration or other reasons that he could look into and rectify?  When the plaintiff came into his office to obtain the resignation he had asked the plaintiff if he was involved in activities which were in conflict with those of the defendant company. The plaintiff confirmed this to him stating that he had been seeking Tribute Agreements with Zimasco. The plaintiff indicted that he had also established a mining consultancy company. Mr. McTaggart told the court that in view of the conflict of interest he accepted the resignation and terminated the contract of employment between the defendant and the plaintiff. He asked the Financial Director, one Bridges, to finalise any financial agreements with the plaintiff as the plaintiff had taken a loan from the defendant. In view of the fact that the plaintiff was seeking a Tributary Agreement with Zimasco, which is a client of the defendant, the plaintiff's continued presence at the defendant's premises was in conflict with the defendant's interests. This was the basis for the mutual termination of their relationship.

Mr McTaggart denied that he had promised the plaintiff ownership of an Isuzu KB Double Cab once it had clocked 200,000km. He could not do so as any disposal of the defendant's assets required a company resolution to that effect. Previously, company managers used Toyota Hilux pick-ups. The managers had requested that they upgrade to Twin Cabs. The Isuzu KB 320 were bought for their use in light of their positions. It was never agreed that ownership of the motor vehicles reverts to them upon the motor vehicles clocking 200,000km. He had approached one Kudakwashe Makoni to take over the plaintiff's position. The latter accepted. Kudakwashe Makoni was given the KB320 to use.

As to whether the plaintiff was dismissed and ordered to leave immediately, Mr. McTaggart stated that up till 30 September 2004, the plaintiff enjoyed a professional relationship with the Directors of the defendant. The resignation letter tendered by the plaintiff precipitated the meeting of 30 September 2004 in which the Directors sought to discuss whether the reason for the resignation could be addressed so as to avoid the plaintiff's departure. As the plaintiff made it clear he was going to pursue private interests, which were clearly in conflict with the defendant, it was untenable that the plaintiff would serve the statutory three months' notice period. In any event, there was a loan outstanding which the plaintiff acknowledged. An amicable solution was found and the parties agreed that upon an appropriate handover takeover being undertaken the plaintiff would leave. According to Mr. McTaggart, this took about a week. The handover takeover involved visits to various mines; it could not be done in a day.

Richard Christopher Bridges is the defendant's Financial Director. His evidence was that he was in charge of Human Resources issues. In September 2004, the plaintiff tendered exhibit 1, his notice of intention to retire. A meeting was convened by Mr. McTaggart in the latter's office. The purpose of the meeting was to discuss the plaintiff's resignation….., Mr McTaggart wished the plaintiff to leave without giving three months' notice pointing to a conflict of interests. In the discussion, it emerged that the plaintiff would be working in competition with the defendant for the benefit of the same client - Zimasco. The plaintiff agreed to forego the notice period as this would permit him to start immediately on his new venture. Mr. McTaggart asked him to go and work out the plaintiff's terminal benefits. The plaintiff had taken out a loan for Z$50,000,000= some five or six months before September 2004…., He suggested that 4/12 or 5/12 of the loan be deducted in view of the fact that the plaintiff had not met his production target through no fault on his part. He instructed Mrs. Rachel Thorpe to calculate the plaintiff's terminal benefits and deduct the balance of the loan from those benefits. According to Richard Christopher Bridges, it would be unusual for an employee to acquire ownership of a company vehicle on the basis that it has done 200,000km. He denied the existence of such a policy at the defendant.

The respondent was a senior employee of the applicant holding the post of Commercial Director. On account of his employment, he enjoyed the use of a company motor vehicle, a Toyota Prado. On 5 February 2010, the respondent's contract of employment was terminated pursuant to a disciplinary hearing. The respondent has appealed against that decision of the disciplinary authority. The appeal is pending before the Labour Court.

In the meantime, the applicant has sought to repossess the Toyota Prado  issued to the respondent on account of his employment, arguing that despite the noting of the appeal, the respondent is no longer its employee and he cannot, on that account, hold on to its vehicle.

This is an urgent application seeking to restore the applicant to the peaceful and vacant possession of Number 28 Fourth Street, Ross Camp, Bulawayo.

The applicant was charged for contravening paragraph 14 of the Schedule of the Police Act [Chapter 11:10]. He was tried, convicted and sentenced to eight (8) days imprisonment. He was dissatisfied with that decision and filed an appeal with this court under case HC number 01/10 which appeal is pending. A lot of activities have since taken place between the applicant and either one or all the respondents which ultimately led to the applicant's eviction from his residence at Ross Camp, Bulawayo.

The applicant's argument is basically premised on three points. The first point is that it was unlawful for the respondents to evict him without a lawful court order.

Secondly, he is presently on bail at the Magistrate Court and one of the bail conditions is that he should reside at the address where he has been evicted from.

The third and final argument is that the decision for his conviction is pending before this court, and, as such, if he is evicted he will be prejudiced in the event of the success of his appeal.

The respondents…., have argued that:

(1) The appeal before this court is un-procedurally filed, and, as such, there is no appeal at all pending before the court; and

(2) That third respondent has a right to remove applicant from its premises as the allocation of accommodation is not part of the conditions of service. It is therefore only a privilege and not a right.

The applicant concedes that the third respondent may be correct in holding the view that the accommodation given to him was not a right but a privilege. However, the argument does not end there.   The correct legal position, with regards to spoliation is that a person in possession of property or right over a thing is protected irrespective of his status with regards to ownership. The applicant has no real right over the respondent's property, but, is in possession thereof and is legally protected from being deprived of such ownership without due process of law. All the possessor needs to do is to prove to the court that:

(1) At the relevant time he was in peaceful and undisturbed possession;

(2) That he derived some benefit from the said thing/property; and

(3) That the respondent's action was unlawful.

See Krammer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C).

The respondent's actions of evicting the applicant from their residence amounted to spoliation as they had no court order to do so….,. I find that there is, indeed, merit in the applicant's apprehension that in the event of the applicant succeeding in his appeal, the success would be brutem fulmen.

Taking into account all the factors in this matter, it is clear to me that the respondents acted unlawfully in this matter. The applicant has made a good case for himself and is entitled to the relief sought. The application accordingly succeeds and the following order is made:

“It is ordered that:

Pending determination of the applicant's appeal being matter no. HC01/10.

(1) Respondents immediately, upon receipt of this order, restore the Applicant to the peaceful and vacant occupation of Number 28 Fourth Street, Ross Camp, Bulawayo.

(2) In the event that the Respondents have given occupation of the said property to any third party, they be ordered to immediately, upon service of this order, remove the said occupant. Failing which the Deputy Sheriff, Bulawayo, or his lawful Deputies, be and are hereby authorized and directed to evict the said occupant and place applicant into vacant occupation.

(3) The Respondents be and are hereby ordered to give absolute peace to Applicant in that they must not threaten, harass, victimize or do any other action which can be construed as disturbing the peace of Applicant and members of his family in occupation of the said property.

(4) This Provisional Order to be served by the Deputy Sheriff, or his lawful assistants, upon the Respondents or any lawful persons found present at Mzilikazi Police Station, Bulawayo.”

Section 179 of the Companies Act [Chapter 24:03] deals with any payment to a Director for loss of office in connection with the transfer of a company's property. It provides that:

“(1) It shall not be lawful, in connection with the transfer of the whole or any part of the undertaking or property of a company, for any payment to be made by any person to any director of the company by way of compensation for loss of office or as consideration for or in connection with his retirement from office, unless particulars with respect to the proposed payment, including the amount thereof, have been disclosed to the members of the company and the proposal is approved by the company in general meeting.

(2) Where a payment which is hereby declared to be illegal is made to a director of the company, the amount received shall be deemed to have been received by him in trust for the company.”…,.

I would simply note that section 179(1) of the Companies Act, like section 178, requires the prior approval of members at a general meeting as a pre-condition for any compensatory payment envisaged in the provision.

The facts of the Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) case were that one Gonyora, an employee of Blue Ribbon Foods, had found alternative employment after he had noted an appeal against the decision of the Labour Relations Officer (“LRO”) who had granted permission for his dismissal, but before such appeal had been heard. The appeal before the LRO had eventually succeeded. However, because Gonyora had found alternative employment the RHO had ordered reinstatement only up to the time he had found the alternative employment. Blue Ribbon Foods took the decision of the RHO on review to this court. One of the grounds of review was that the RHO had lacked jurisdiction to deal with the matter because Gonyora had taken up alternative employment elsewhere. Having lost in this court Blue Ribbons Foods took the matter on appeal to the Supreme Court. The appeal succeeded. It was held that although Gonyora had taken up alternative employment elsewhere and had therefore ceased to be an employee of Blue Ribbon Foods nevertheless his rights as employee had existed up to the time he had noted his appeal against the decision of the LRO. Once that right had vested in him Gonyora had been entitled to an order from the RHO. At pp 151 – 152 of the judgment, McNALLY JA said:

“Gonyora's rights as an employee existed at the time he noted his appeal against the decision of the Labour Relations Officer. He was entitled to a full re-hearing in terms of s17 of SI 368/85, as read with s15 of the same Statutory Instrument. Once that right vested he is entitled to an order, whether or not his status is subsequently altered. Obviously reinstatement would not, at that stage, be a viable option, but an order that back-pay be paid up to the time of the termination of employment could be made in terms of s111(2)(a) of the Act.”

The Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) case was decided in 1993 under the then Labour Relations Act. Since then, this Act has undergone numerous changes. The issue of vested rights of ex-employees is put beyond issue in section 13 of the current Labour Act [Chapter 28:01]. It reads:

“13 Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, whether any person –

(a) Is dismissed from his employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(c) …,.

(d) …,.

he or his estate, as the case may be, shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death, as the case may be, including benefits with respect to any outstanding vacation and notice period, medical aid, social security and any pension, and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.”

This is an apposed court application. The facts, which are wholly common cause, are as follows:

The applicant was in the respondent's employ for the past thirty-two and half years. On 24 October 2012 she resigned on medical grounds. The resignation was accepted by the respondent on 29 October 2012. In a letter authored by the respondent's Human Resources Manager, dated 25 March 2013, the applicant was advised by the respondent that the total net of her terminal benefits amounts to US$45,147=03. The respondent paid the applicant US$10,000= leaving a balance of US$35,147=03. The applicant also claimed US$2,698= being her October and November 2012 arrear salaries. 

The respondent failed to pay the balance outstanding prompting the applicant's lawyers to send a letter of demand to the respondent on 3 April 2013. The respondent ignored that letter leading to the current court application for debt recovery…..,.

The applicant has approached the court on an urgent basis seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

That you show cause, if any, to this Honourable Court, why a final order should not be made on the following terms:

1. That the possession of the Ford Ranger vehicle registration No.ACO2985, Chassis Number 6FPPXXMJ2PCG40156 by the 1^st respondent be and is hereby declared unlawful and the first respondent has no right to possess the vehicle.

2. That the 1^st respondent shall pay the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following relief:

1. That the 1^st respondent be and is hereby ordered to return to the applicant the said motor vehicle in her possession, namely, a Ford Ranger vehicle, registration No.ACO2985, Chassis Number 6FPPXXMJ2PCG40156, within 24 hours of service of this order upon her.

2. That the 1^st respondent, including any of her agents, be and is hereby interdicted, barred and stopped from interfering with the ownership and possession by the applicant of the motor vehicle, namely, a Ford Ranger vehicle, registration No.ACO 2985, Chassis Number 6FPPXXMJ2PCG40156.

3. In the event that the 1st respondent fails to restore possession in terms of clause 1 and 2 above, the 2nd respondent be and is hereby ordered and authorised and required to seize the aforementioned vehicle from the 1st respondent or from whomsoever is in possession of the vehicle and deliver the same to the applicant.

4. The 2^nd respondent is authorised, in the execution of his duties above, to enlist the assistance of members of the Zimbabwe Republic Police as he may deem necessary.

5. The 1^st respondent shall pay costs of this application on a legal practitioner and client scale.”

The first respondent was employed by the applicant up to 28 February 2014 when her fixed term contract expired. There is a dispute as to how the said contract was terminated which the first respondent has referred to a Labour Officer for conciliation. During the tenure of her employment contract, the first respondent had access of a motor vehicle belonging to the applicant for use in the discharge of her duties. The applicant maintains that the vehicle was not given to the first respondent as a benefit, and, although not disputing that fact, the first respondent insists that “is neither here nor there” especially as her post has been abolished thereby entitling her to the vehicle as a retrenchment package. In anticipation of the expiry of her employment contract, the applicant notified the first respondent months earlier, that her contract would not be renewed, sparking a dispute which has been referred to a Labour Officer aforesaid. The first respondent has refused to surrender the vehicle, even after the expiry of her employment contract, insisting that she was unfairly dismissed and that until such time that the issue of her dismissal is determined she has a right to the vehicle which, in any event, is a negotiable package.

This has prompted the applicant to approach this court…, seeking an order for the return of the vehicle which it says is required for use in its business, and, in any event, is a subject of a rebate granted by the tax authorities upon its importation in 2012. For that reason, it should be in the possession and use of the applicant.

It appears common cause that the first respondent's employment contract expired on 28 February 2014, at which point she would have been expected to surrender the employer's property - including the motor vehicle….,.

On the merits of the matter, there can be no doubt that the vehicle in question belongs to the applicant and not the first respondent. It was given to the first respondent for use in the discharge of her duties as an employee of the applicant. At no time was the vehicle part of her benefits in terms of her employment contract. In fact, she admits that it was available for use by other employees of the applicant and that a log book on its movement was kept. At no time did the parties agree to transfer ownership to the first respondent.

The issue of a former employee's entitlement to an employer's vehicle after termination arose in Zimtrade v Makaya 2005 (1) ZLR 427 (H); Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H); and William Bain & Co Holdings (Pvt) Ltd v Nyamukunda HH309-13.

In my view, Zimtrade v Makaya 2005 (1) ZLR 427 (H) is distinguishable from the present case in that pending termination of the contract of employment, the employer sought to repossess its assets from the employee using the rei vindicatio and the court reasoned that where the validity of the suspension of the employee is still pending, the rei vindicatio cannot lie at the instance of the employer.

In casu, it is common cause that the employment contract terminated by effluxion of time on 28 February 2014. What the employee probably wants to argue is presumably that she had a legitimate expectation of a renewal. She can do that, but the employer cannot be detained in relying on the rei vindicatio.

In Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) MAKARAU JP…, stated…, that:

“I am unaware of any law that entitles a prospective purchaser to have possession of the merx against the wishes of the seller prior to delivery of the merx in terms of the sale agreement. I was not referred to any such law during the hearing of the matter. My limited research has not yielded any.”

By parity of reasoning, it cannot be said that an employee is entitled to retain the vehicle in anticipation that it may be given to her as a retrenchment package. A retrenchment which has not even begun, may never occur, and is just a pipe dream in light of the expiry of the employment contract.

In William Bain & Co Holdings (Pvt) Ltd v Nyamukunda HH309-13…, I made the point, which I repeat here, that:

“In my view, it is the height of turpitude for the respondent to hold on to both the vehicle and the house years after termination of the employment contract under circumstances where he has no rights whatsoever over the properties…,. The fact that the respondent is owed terminal benefits is not a ground for refusing to surrender assets. In the end, we are left with the tired and limping argument that because the respondent has referred the issue of whether the employment contract was terminated by dismissal or by registration to the Labour Court, then this court should not entertain this application even though the Labour Court dispute not only did not have anything to do with the issues before this court but also determined that dispute by judgement delivered in May 2013.”

See also PG Industries (Zimbabwe) Ltd v Machawira 2012 (1) ZLR 552 (H).

To the extent that the applicant owns the vehicle and that it was not given to the first respondent as a benefit, and to the extent that the first respondent retains it without the authority of the owner for use as a bargaining tool, the applicant has made a case for the relief sought.

The respondent was employed by the applicant as an engineer and he was a managerial employee. In April 2012, the applicant transferred the respondent. The respondent successfully took issue with the transfer at arbitration and the applicant was ordered not to unilaterally transfer him and others. In addition, on 10 October 2012, the High Court granted an order suspending the transfer pending finalisation of the labour process. 

Nevertheless, on 18 October 2012, the applicant transferred the respondent. 

On 29 November 2012, another arbitration award was granted, ordering the applicant to comply with the earlier award not to transfer the respondent unilaterally. On 4 February 2013, the applicant dismissed the respondent for refusal to obey a lawful instruction in relation to the transfer. The dismissal case went to arbitration. On 30 July 2013, arbitrator Shumba reinstated the claimant “without loss of salary and benefits from 5 September 2012 or payment of damages in lieu of reinstatement on terms to be agreed upon by both parties, failure of which either party can approach the arbitrator for quantification of such damages.”

It is common cause that the respondent was neither reinstated nor offered damages. It is common cause that the respondent approached the arbitrator for quantification of damages. It is also common cause that the applicant has appealed against both the reinstatement and the quantification in the Labour Court.

Prior to the granting of the arbitration award for reinstatement, the applicant had applied to the High Court for a rei vindicatio in respect of the motor vehicle which was issued to the respondent as a Network Manager, a Mazda BT50 Double Cab, Registration No. AAC–1901. The applicant's argument was that it terminated the respondent's employment on 11 December 2012 following disciplinary proceedings and that because of that termination the respondent should hand over the above motor vehicle regardless of the fact that the respondent was challenging the termination.

In response, the respondent raised preliminary issues about lack of authority by the deponent to the applicant's affidavit and citing a wrong name for the respondent. The respondent also said the High Court has no jurisdiction to deal with this matter since it is a labour dispute.

The respondent was employed as the applicant's Chief Executive Officer for a five year contract.

He was issued with a Mercedes Benz S280. The contract was not renewed after its expiry. He lodged a complaint of unfair labour practice with the Ministry of Labour and that matter was still pending at the time this application was filed. On termination, he refused to hand over the vehicle prompting the applicant to compel him to surrender the vehicle through this application.

In the court a quo, the appellants made reference to the provisions of section 13(1)(a)-(d) of the Labour Act [Chapter 28:01]. The argument was that when an employer has not paid terminal benefits the employee remains under employment.

Section 13 of the Labour Act [Chapter 28:01] provides as follows:

“13 Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, whether any person -

(a) Is dismissed from his employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(c) Is incapacitated from performing his work; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation, or death, as the case may be, including benefits with respect to any outstanding vacation and notice period, medical aid, social security and any pension, and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.

(1a) Wages and benefits payable to any person or to his or her estate in terms of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of s12C.

(2) Any employer who, without the Minister's permission, withholds, or unreasonably delays, the payment of any wages or benefits owed in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

(3) The court convicting an employer of an offence in terms of subsection (2) may order him to pay -

(a) To the employee concerned; or

(b) To any person specified by it for the benefit of the employee concerned; in addition, to any other penalty which it may impose, an amount which, in its opinion, will adequately compensate the employee concerned for any prejudice or loss he has suffered as a result of the contravention concerned, within such period and in such instalments as may be fixed by such court.

(4) The court may, at any time, on the application of the employer, employee or specified person concerned, for good cause shown, vary an order made in terms of subsection (3).

(5) Sections 348 and 349 of the Criminal Procedure and Evidence Act [Chapter 9:07] shall apply, mutatis mutandis, in relation to the amount specified in an order in terms subsection (3) as if such amount were a fine referred to in those sections.

(6) Nothing contained in this section shall be construed as precluding a person referred to in subsection (1) or his representative or the executor of his estate, as the case may be, from claiming over and above any wages or benefits to which he or his estate is entitled in terms of subsection (1), damages for any prejudice or loss suffered in connection with such dismissal, termination, resignation, incapacitation or death, as the case may be.”…,.

The first appellant alleged that he never received his terminal benefits….,.

The plaintiff's further submission that section 13(1) of the Labour Act [Chapter 28:01] maintains the employer-employee relationship where terminal benefits have not been paid is incorrect. All it does is to criminalize unreasonable delay in payment and make it an unfair labour practice.

Further, the court a quo, correctly, held that the first appellant deliberately misconstrued the effects of the judgments which dismissed the appeal in order to justify his view that he remained an employee of the second respondent. As a result, the court a quo held that the appellant had not produced evidence to be rebutted by the respondents at the close of his case. Absolution from the instance was granted.

In granting the application for an order of absolution from the instance, the judge said…,:

“….,. I see no basis for declining to determine the issue at the close of the plaintiff's case. The plaintiff's action flowed from the determination of the senior labour officer. He misinterpreted the determination wrongly, claimed for damages and loss of earnings arising from a period after he ceased to be an employee.

There is a dispute as to what transpired at the time of the applicant's discharge regarding the house he was occupying at Ross Camp. 

The applicant stated that the officer-in-charge, Chief Inspector Costa Taduwa, instructed him to forthwith vacate the premises as he had been discharged and that he was not going to be given time to relocate.  As on a previous occasion, the police authorities had humiliated a discharged police constable by throwing his property out in the street. He feared similar treatment. He therefore quickly looked for alternative accommodation and moved out on his own accord.

According to the affidavit of Chief Inspector Costa Taduwa, the applicant vacated the house on his own well before he was discharged. In fact, in early December 2015, he had received information that the applicant was carting his property out of the camp but when Chief Inspector Costa Taduwa questioned him about it, the applicant denied doing that. He however came to the officer in charge's office on 14 December 2015 to inform him that he had decided to swap houses with one Constable Mleya who also occupied a house in Ross Camp to which the officer in charge did not object. As far as he is concerned, the applicant left on his own accord and was not forced out of his accommodation.

In fact, when Chief Inspector Costa Taduwa looked for the applicant, in order to serve him with his discharge papers, he was not at either of the houses as he had vacated. The explanation given by Chief Inspector Costa Taduwa was confirmed by Constable Mleya who stated that she is the one who had approached the applicant on 14 December 2014 seeking a swap; which was effected on 15 December 2015. She later learnt that the applicant had not taken up the house she had left for him.

I am not persuaded that the applicant was forced out of the house. 

There would have been no reason to do that on 14 December 2015, days before the discharge radio was received at the station. It is also significant that when he left he was supposed to move into Constable Mleya's house but did not do so, consistent with the explanation given by Chief Inspector Costa Taduwa that he was moving his property much earlier in that month.

The applicant had been an employee of J. W. Jaggers Wholesalers (Private) Limited (“Jaggers”) before it went bankrupt. Among the applicant's employment benefits was subsidised accommodation in one of Jaggers' houses. After J. W. Jaggers Wholesalers (Private) Limited's placement into liquidation, the first respondent, in his capacity as the liquidator, went about disposing, on the open market, of J. W. Jaggers Wholesalers (Private) Limited's assets - including the house the applicant stayed in. The applicant brought an urgent chamber application, inter alia, to restrain the first respondent from disposing the house to anyone else other than himself. His argument was that as an employee and sitting tenant he had the right of first refusal in any intended sale of that house.

MATHONSI J declined to hear the application on an urgent basis. Among other things, the learned judge pointed out that the applicant was labouring under a misconception. The right of first refusal is not automatic but is one conferred by agreement.

There is no doubt that terminal benefits of an employee are an accrued benefit….,. In short, the applicant has a contingent right that has accrued to him.

On 31 January 2015, I granted an ex tempore order directing the forty three respondents to release, immediately, the forty three heavy duty haulage trucks, together with their cargo, trip documentation for those trucks, and all other property of the applicant which the respondents had unlawfully embargoed and parked at Beitbridge, Harare, and Chirundu.

The respondents were part of a group of one hundred and forty five Zimbabwean nationals employed as transnational haulage truck drivers by the applicant, a South African company that carried on the business of freight forwarding. The drivers transported cargo of various types to customers in most Southern African countries that included Botswana, Malawi, Mozambique, Namibia, Zambia and Zimbabwe.

The respondents went on strike. Their major grievance was that the applicant should summarily dismiss the applicant's Operations Manager whom they accused of all manner of evil including the making of unlawful deductions on their wages. They also complained of general abuse at his hands.

Apparently feeling that the applicant was not moving fast enough to address their grievances, the respondents co-ordinated their efforts. On 21 January 2015, when they had all entered Zimbabwe en route to their various destinations, the respondents aborted their trips. Each of them parked their vehicles, all laden with cargo destined for the different markets, at various premises at three ports in Zimbabwe, namely, Beitbridge, Harare and Chirundu.

The cargo was said to be worth millions of Rand. Each day that passed was costing the applicant huge sums of money. Threats of legal action from the owners or consignees of that cargo started pouring on the applicant. Efforts to engage the respondents in dialogue proved fruitless. At one time, an agreement negotiated with the assistance of the parties' Zimbabwean legal representatives collapsed. At the last minute the respondents refused to append their signatures on the written draft.

Apart from seeking a negotiated settlement, the applicant also pursued the legal route. On 23 January 2015 it obtained, from the Labour Court of South Africa at Durban, a rule nisi calling upon the respondents to show cause why their strike should not be declared unlawful. The rule nisi would operate as an interim interdict. However, the respondents ignored the order. They did not return to work.

The applicant switched the legal fight to Zimbabwe.

They first sought a “show cause” order from the Zimbabwean Minister of the Public Service, Labour and Social Welfare (“the Minister”) in terms of section 106 of the Zimbabwean Labour Act [Chapter 28:01] (“the Act”). The provision empowers the Minister, either on his own initiative, or on application by any person affected by a collective job action such as a strike, boycott, lock-out, sit-in or sit-out, to issue an order calling upon the organisers to show cause why he may not issue a disposal order. A disposal order is a directive that the Minister may issue, inter alia, terminating, postponing or suspending the collective job action. He can also direct that the dispute giving rise to the collective job action be dealt with by conciliation or arbitration in accordance with the provisions of the Act.

The applicant got no official response to its application to the Minister. However, it received information that the Minister had declined to deal with the matter, allegedly because she had no jurisdiction over the matter.

The applicant approached the Zimbabwe Republic Police. It had received information that the respondents had begun vandalising the trucks and/or the cargo. Furthermore, they had turned violent. Relief drivers sent to retrieve the trucks had failed to gain access. However, the police said they would not get involved unless there was an order of court. The applicant then proceeded to file the urgent chamber application.

At the hearing, counsel for the respondents raised four points in limine but I dismissed them all for lack of merit….,.

On the merits, the respondents had no case.

Counsel for the respondents tried to argue that the dispute had to be understood in the context of an employer - employee relationship; that the respondents had serious grievances against the applicant for, among other things, unpaid wages which allegedly were running into thousands of dollars for each of the respondents. He accused the applicant for the collapse of the draft agreement of settlement allegedly because it had refused to make part payment of the outstanding salaries, something that would have ameliorated the respondents' situation to enable them to call off the strike.

Counsel for the respondents conceded that whatever grievances the respondents might have had against the applicant, it was no justification for them having resorted to self-help. It was said that the applicant had already secured a court order in South Africa for the unpaid wages. Therefore, in my view, all they had to do was to execute that order instead of taking the law into their own hands. What the respondents had done was intolerable lawlessness. No court could condone such brazen illegality. It was their free choice to continue with their strike. But they knew that it had been declared illegal by the South African Labour Court. They had no right to keep the applicant's trucks, cargo and all the attendant documentation. I therefore ordered their immediate release.

(xi) Whether or not a member who has a pending criminal case is entitled to full terminal benefits before the finalisation of the criminal case

It is trite that terminal benefits are payable upon termination of employment.

In accordance with section 47 of the Police Act [Chapter 11:10], pending trial, the Commissioner General is only entitled to suspend a member, and not terminate his employment. Further, section 48 provides that termination of employment is only a consequence of conviction; and, in terms of section 39 of the Police Act, certain penalties consequent upon disciplinary proceedings are only recoverable by stoppages of pay.

It seems to me that in these circumstances a member is not entitled to payment of terminal benefits until the conditions in these provisions are fulfilled. However, where a member tenders his resignation, pending the finalisation of a disciplinary matter, section 44 entitles the Commissioner General to dis-entitle him to salary and allowances. Further, section 41 provides that if a member ceases to be so before completion of his sentence, the sentence shall remain valid and binding. I presume that would permit the Commissioner General of Police to withhold his terminal benefits to meet any penalties he may be obliged to pay. Therefore, while the right to terminal benefits is provided for by law, such right has also been limited, by law, in clearly defined circumstances which are reasonably necessary for the protection of the fiscus for the generality of the citizenry. The interests of the individual are thus properly balanced with the public interest in that no terminal benefits are withheld indefinitely and unjustifiably.

Section 13(1) of the Labour Act [Chapter 28:01] deals with wages and benefits upon termination…,. It provides:-

“13 Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, whether any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(c) Is incapacitated from performing his work; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect to any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.”…,.

I have cited the provisions of section 13 of the Labour Act which entitle an employee to wages and benefits upon termination of the employment contract. In the event of a breach of those provisions the employee has remedies, including criminal prosecution against the employer. The employee may also bring an action in the Labour Court, which, in terms of section 89(1), has power to hear and determine any application in terms of the Labour Act. In terms of section 89(2)(c) it can also make an order for back pay and other damages to be awarded to an employee.

This was an appeal against an order of eviction granted by the court a quo in favour of the respondent against the appellant. The order of eviction was in relation to certain premises, a dwelling house, situate Shabani Mine, Zvishavane, owned by the respondent but which had, at all relevant times, been allocated to, and was occupied by the appellant by virtue of his employment with the respondent.

In the court a quo, the grounds of claim, as pleaded by the respondent by way of a court application, were these:

(i) That the appellant was once employed by the respondent as Underground Manager;

(ii) That by virtue of his contract of employment he was entitled to a company house;

(iii) That in accordance with the contract of employment he had been allocated the premises in question;

(iv) That his entitlement to, and occupation of those premises, or any others that he might have been allocated during the currency of his employment, would cease upon the termination of his employment with the respondent;

(v) That the appellant had left the respondent's employment on 31 January 2012 [i.e. more than 4 years ago];

(vi) That on various occasions the respondent had requested the appellant to surrender the premises back to it but that he had not done so;

(vii) That despite a formal letter of demand by the respondent to the appellant to vacate the premises, he had remained in occupation.

The appellant opposed the application.

First, he took a point in limine that this was a labour dispute over which, by virtue of section 89[6] of the Labour Act [Chapter 28:01], the court a quo had no jurisdiction. He then pleaded to the merits and denied that he had left the respondent's employ or that his contract of employment as Underground Manager with the respondent had been terminated but that he had merely been seconded from Shabani Mine to the Zimbabwe Development Corporation [“ZMDC”], which, in turn, had seconded him to Kusena Zim Diamonds.

In brief, the appellant's main grounds of defence in the court a quo were:

(i) That at all relevant times the respondent was a company under a reconstruction order in terms of the Reconstruction of State-Indebtedness Insolvent Companies Act [Chapter 24:27];

(ii) That when it was placed under a reconstruction order the Zimbabwe Development Corporation (ZMDC) “took over” the respondent;

(iii) That on 8 November 2011 the appellant was seconded to Kusena Zim Diamonds;

(iv) That secondment simply means a period when an employee is sent by his employer to work for a different organisation or a different part of the same organisation;

(v) That at Kusena Zim Diamonds, the appellant had been staying in a one-roomed cottage at the Mine Compound;

(vi) That on 22 April 2015 the appellant had further been transferred to Jena Mines, a subsidiary of the Zimbabwe Development Corporation (ZMDC);

(vii) That at Jena Mines the appellant was staying in a guest lodge;

(viii) That as such, the appellant was still employed by the respondent and that until such time that his contract of employment with the respondent was terminated, his entitlement to occupy the premises in question remained.

The respondent produced several documents to back up his claims. One such was “Annexure M”, the letter dated 8 November 2011 written to him by the Zimbabwe Development Corporation (ZMDC). It advised him of his secondment to Kusena Zim Diamonds upon the terms and conditions spelt out therein.

On the duration of the secondment, Annexure M said this would depend on the exigencies of the work at both Kusena Zim Diamonds and some other mines named therein. On accommodation, the letter said the company would provide him with accommodation at the mine, subject to availability. On termination of employment, the letter said subject to the right of dismissal, notice of termination of employment would be three calendar months by either party. It stressed that the termination of that contract, as a disciplinary measure, would in no way give him the option to return to the respondent.

The other document produced by the appellant, “Annexure O”, was the letter to him by the Zimbabwe Development Corporation (ZMDC) on 22 April 2015, advising of his further transfer to Jena Mines until further notice.

On the conditions of service, Annexure O said those obtaining at Jena Mines would apply, and that they included salary and benefits. However, the letter further said that this did not change the appellant's original secondment status from Shabani Mine.

In an answering affidavit, the respondent, among other things, pointed out that Annexure M was the Zimbabwe Development Corporation's letter to him, not a letter from the respondent; that the letter was the appellant's contract of employment with the Zimbabwe Development Corporation (ZMDC); that this showed that his contract of employment with the respondent had since been terminated as one could not report to two masters.

In granting the order of eviction, the court a quo found, or reasoned, as follows:

(i) That the issue before it was not of termination of employment but of eviction, and that as such, the court was empowered to entertain the application;

(ii) That the appellant [then respondent in the court a quo] was on secondment to the Zimbabwe Development Corporation (ZMDC);

(iii) That it had been clearly stated that the mine would provide accommodation and allocate the appellant with new residences at the new stations;

(iv) That therefore there was no valid reason why the appellant should have two houses from different mines at the same time, in the same way that he did not receive two salaries at the same time.

(v) That upon transfer one could not hold onto the property of the previous station.

Before us, the parties have largely repeated the same arguments as in the court below. Counsel for the appellant has insisted that the Zimbabwe Development Corporation (ZMDC) had “taken over” the operations of the respondent after it was placed under reconstruction and that none of the employees, the appellant included, had any say over their fate, except that the take-over should not prejudice them. He said the premises in question remained the appellant's main accommodation which was tied to his contract of employment and that all the other residences that he might have been allocated at his new stations on secondment remained temporary accommodation.

Counsel for the respondent denied that the Zimbabwe Development Corporation (ZMDC) had taken over the respondent. He denied that there could have been any such thing as “taking over” of a company by another company. He said the respondent was a company under a reconstruction order and which was under the control and direction of an administrator. Counsel for the respondent insisted that the ZMDC was the appellant's new employers and that it was the ZMDC, not the respondent, which was seconding the appellant every time it saw fit.

There were some grey areas on some aspects of the matter which none of the parties could properly shed light. For example, what did it mean that the Zimbabwe Development Corporation (ZMDC) had “taken over” the operations of the respondent? What were the terms and conditions of that take over, particularly with regards to the respondent's labour force and its assets such as housing?

But, undoubtedly, there had been some kind of transfer or relationship between the respondent, under reconstruction, and the Zimbabwe Development Corporation (ZMDC). In the case of Badza v SMM Holdings [Pvt] Ltd [Under Reconstruction] t/a SMM Properties HMA 20-17, it was common cause that the ZMDC, a parastatal, had become the respondent's sole or major shareholder after it had poured a substantial sum of money to resuscitate the respondent's operations. Surely, for such sums of money to pass hands like that some sort of agreement would have been signed to govern the parties' new relations. These agreements might, or might not, shed light on, among things, the fate of the respondent's employees. None of the parties made reference to any such documents, let alone produce them.

The other grey area was in some of the expressions used in certain documents. For example, Annexure O, namely, the Zimbabwe Development Corporation's second letter to the appellant, on 22 April 2015, further transferring him from Kusena Zim Diamonds to Jena Mines said, among other things, that the conditions of service obtaining at Jena Mines and which would now govern the appellant regarding his salary and benefits, would not change the appellant's original status from Shabani Mine. This would seem to support the appellant's argument that, contrary to the respondent's claim, his original contract of employment with it had never been terminated and that he was merely on secondment to the Zimbabwe Development Corporation (ZMDC).

It is true an employee who is on secondment to another branch of the employer or enterprise is transferred on a temporary basis. He remains employed by the seconding office or employer: see Shumba v Commercial Bank of Zimbabwe HH100-06 and Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S].

In Dairibord Zimbabwe Limited v Muyambi 2002 [1] ZLR 448 [S], Dairibord, the employer, had seconded Muyambi, the employee, from its main operations in Zimbabwe to one of its subsidiaries in Malawi on a contract of secondment. Disgruntled by alleged non-performance, in Malawi, Dairibord terminated the contract of secondment. The Supreme Court held that the termination of Muyambi's contract of secondment had not terminated his original contract of employment in Zimbabwe.

Further ambiguity in the present case is brought by Annexure M's clause on termination of employment. It said:

“Subject to the right of dismissal, notice of termination of employment shall be three calendar months notice from either party in writing. Please be advised that termination of this contract, as a disciplinary measure, will in no way give you the option to return to SMM.”

That clause would seem to imply that only the termination of the secondment contract, on disciplinary grounds, would dis-entitle him to return to the respondent on his original contract, suggesting that any other reason for termination would not present that difficulty for him….,.

The appellant's argument is self-defeating. If ZMDC's taking over of the respondent entailed its taking over the of respondent's houses, then if he was being seconded and being given new accommodation at his new work stations, he would not be entitled to retain the original premises. As the court a quo noted, he would not be entitled to two houses from the same employer at the same time, in the same way that he would not be entitled to two or more salaries and benefits from the same employer at the same time. If it was the quality of the accommodation at the new work stations that the appellant was complaining about, then this would be a different case altogether.

However, having looked at this matter holistically, we have found no misdirection by the court a quo in refusing to be entangled in issues of employment contracts and in confining itself to the narrow issue of eviction….,.

We consider the correct position to be that the appellant's original contract of employment with the respondent, which had carried with it an entitlement to accommodation in the premises in question, had long since terminated, and that, as the generality of the documentation showed, he was now on a new and separate contract of employment with the Zimbabwe Development Corporation (ZMDC).

The applicant was employed by the first respondent. As part of his employment benefits, the applicant was allocated House Number 36 School Avenue, Noelvale, Zvishavane. Between 11 and 20 March 2011 the applicant deserted from work and was dismissed, after due process, on 27 March 2011. The applicant did not appeal against the dismissal which still stands to date. The first respondent considered the contract of employment effectively terminated thereby stripping the applicant of all rights that had accrued to him as a consequence of the employment relationship.

The applicant remained in occupation of the first respondent's property prompting the latter to issue summons for eviction on 23 August 2016. The applicant entered appearance to defend and filed his plea on 28 September 2016. On or about 31 August 2017, the first respondent filed an application for summary judgment under case number HC1101/17. A default judgment was subsequently granted against the applicant.

The first respondent obtained a warrant of ejectment and served it on the applicant's sister on 12 January 2018. The applicant then filed this application for stay of execution arguing that neither his legal practitioners nor his corresponding lawyers received the application for summary judgment. The relief he seeks is as follows;

“That pending the determination of this matter, the applicant is granted the following relief:

1. The warrant of ejectment issued on 12^th day of January 2018 be and is hereby stayed pending the determination and finalization of the application for rescission of summary judgment which will be filed within 5 days.

2. In the event that the applicant and all those claiming right through him have been evicted be restored possession of House Number 36 School Avenue, Noevale, Zvishavane pending the determination and finalization of the application for rescission of summary judgment.”

The applicant contended that the matter is urgent because he was facing ejectment in a matter of hours.

He claimed that the balance of convenience favours the granting of this application in that if the application for rescission is not granted, the first respondent will still be entitled to reclaim its house while if he is evicted before the determination of his application for rescission he will not be able to have possession of the house, because the first respondent intends to allocate it to a new tenant. Further, the applicant submitted that he will suffer irreparable harm if this application is not granted in that the first respondent owed him US$23,000= being salary arrears, and, if execution is not stayed, he will not have any recourse to the law because the first respondent is “immune to lawsuits” by virtue of the provisions of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:24].

The applicant also argued that he will suffer heavy prejudice if the warrant for ejectment is not stayed in that he has no alternative accommodation for his family that includes children who are attending school in Zvishavane.

He said he was surprised by the warrant of eviction because he had not been served with the application for summary judgment.

While admitting that according to the certificate of service filed by the first respondent, the application for summary judgment was served on one Edwin Mafa in the employ of his corresponding legal practitioners, he insisted that his lawyers told him that Edwin Mafa denied being served with the application. In this regard, he filed a supporting affidavit from his legal representative confirming that Edwin Mafa denied ever receiving the application for summary judgment. Surprisingly, the applicant omitted to file an affidavit from Edwin Mafa himself.

During argument, it was conceded that the applicant lost his right to continue to enjoy benefits after the termination of the contract of employment. It was nevertheless argued that his defence in the application for rescission would be that he is owed salary arrears by the first respondent who was served with this claim. He lamented the difficulty of suing the first respondent due to its status.

The first respondent opposed the application on the following grounds;

“(a) There is no accompanying urgency as to warrant the relief sought;

(b) There is no fear of an imminent harm and or fear of an injustice being done should the relief sought be denied.

(c) The applicant has not established that he has a clear or prima facie right that would entitle him to get the relief of stay of execution against an order for his eviction from a company house that he is occupying following termination of his employment contract on March 2011.

(d) Applicant has not shown that the balance of convenience is in favour of granting the remedy.”

As indicated above, the applicant has approached this court for a stay of execution pending the filing and determination for rescission of the default judgment granted under HC1101/17.

The principles that a court must have regard to in an application for stay of execution are akin to those considered when deciding whether or not to grant leave to execute pending appeal – see Nzara v Tsanyau and Others 2014 (1) ZLR 674 (H); Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH39-07. They are:

“1. An appellant has an absolute right to appeal and test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.

2. Execution of the judgment of the lower court, before the determination of the appeal, will regate the absolute right that the appellant has and is generally not permissible.

3. Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal resting in the appellant.

4. In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporations (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545.

5. Where the judgment sounds in money and the successful party offers security de restituendo and the appellant has no prospects of success on appeal, the court may exercise its discretion against the appellant's absolute right to appeal.

6. An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success on appeal, especially where the whole object of the appeal is defeated if execution were to proceed. See Woodnov Edwards and Another 1966 RLR 335.”

What must be interrogated in this matter are the applicant's bona fides in bringing an application for rescission of a default judgment.

In order to show good and sufficient cause under Rule 63 of the High Court Rules 1971, for rescission, an applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment and the prospects of success on the merits. These factors are considered cumulatively and not individually. See Earth Moving and Construction Company (Pvt) Ltd v Gurupira and Others 2014 (1) ZLR 304 (H); Roland and Another v McDonnell 1986 (2) ZLR 216 (S); Stockil v Griffs 1992 (1) ZLR 172 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S).

Let me deal first with the reasonableness of the applicant's explanation for the default.

It is noteworthy that he has given two conflicting explanations;

(a) Firstly, he contended that “as such neither my legal practitioner nor any corresponding lawyers received the application for summary judgment.” See paragraph 17 of the applicant's founding affidavit.

(b) Secondly, it was argued that Edwin Mafu was served with the application, but, instead of sending it to the applicant's lawyers, he simply sat on it.

This was despite the applicant's lawyers having been furnished with a copy of the certificate of service with a stamp from Sansole and Senda, the corresponding legal practitioners showing that the application for summary judgment had been served on one Edwin Mafu on 20 April 2017. The applicant did not bother to file Edwin Mafu's affidavit with this application. Also, the applicant did not bother to peruse the file or contact the Assistant Registrar between August 2017 and January 2018. In the absence of a supporting affidavit from Edwin Mafu, this court is left to speculate on what happened between Mutendi, Mudisi and Partners and Sansole and Senda.

In the result, the explanation remains somewhat murky and unreasonable.

As regards the applicant's bona fides, the fact that he conceded that he does not have any residual right to occupy the house after the termination of the contract of employment demonstrates clearly that his intended application is mala fide.

This is especially so if one has regard to the applicant's contention that he is owed US$23,000 in salary arrears. What is surprising is that the applicant has not placed any evidence of his efforts to recover this money in the past seven (7) years. In any event, this fact does not constitute a defence…,.

An examination of the merits of this application, coupled with any prospects of success of the application for rescission, shows that the applicant is motivated by a desire to either buy time or harass the first respondent. The applicant has not established that he has a clear or prima facie right that permits him to continue holding on to the first respondent's property following the termination of the contract of employment.

For starters, section 12(6) of the Labour Act [Chapter 28:01] clearly supports the first respondent's position. It states;

“Whenever an employee has been provided with accommodation, directly or indirectly, by his employer, the employee shall not be required to vacate the accommodation before the expiry of a period of one month after the period of notice specified in terms of subsection (4) or (5).”

The Collective Bargaining Agreement Mining Industry (General Conditions) Statutory Instrument 152/90 also makes provision for the period within which an ex-employee is required to vacate premises after termination of the employment contract.

Section 25(2)(a)(b) of the Collective Bargaining Agreement Mining Industry (General Conditions), S.I.152 of 1990 provides;

“An employee who is in occupation of premises belonging to his employer shall;

If he occupies married quarters and his employment is terminated he shall be allowed a reasonable period of not less than 21 days from the date of termination of employment to vacate such premises.”

On this basis, the applicant was required, by law, to vacate the first respondent's premises within the stipulated period after the termination of his employment contract.

The fact that the applicant was owed arrear salaries is not a valid reason to continue residing in the company house after his contract had been terminated.

Chisipite School Trust (Pvt) Ltd v Clark 1992 (2) ZLR 324; Arundel School Trust v Pettingrea 2014 (1) ZLR 596; Jakazi and Another v Church of the Province of Central African and Others 2010 (1) ZLR 335 (H); Hamtex Investments (Pvt) Ltd v King 2012 (2) ZLR 334.

On the facts of this case, it cannot be said that the applicant would suffer an injustice or irreparable harm if the stay were not granted. The onus is on the applicant to prove irreparable harm that would have justified the granting of the stay of execution. In Chibanda v King 1985 (1) ZLR 116 DUMBUTHSENA AJP held that;

“In an application for stay of execution of the judgment of the court, it is not enough for the applicant merely to allege hardship. He must satisfy the court that he may suffer irreparable harm or prejudice if execution is granted…,.; it must also be borne in mind that if the court were to extend mercy, it would be doing it at the expense of a litigant who has already established, in court, his right and title to what is being claimed. Such mercy should rather be sought in the action itself before judgment is given - not afterwards.”

It is trite that the power to grant stay of execution is a common law exercise of the power that inheres in the court. This discretion is very wide, but, the main guiding principle for the court, in determining such an application, is to grant stay where real and substantial justice requires such a stay, or, conversely, where injustice would otherwise be done – see Mungwambi v Ajanta Properties (Pvt) Ltd HH771-08.

In casu, the applicant cannot be said to suffer injustice if the application is declined in that his eviction will not extinguish his claim for arrear salaries. There is therefore no harm to talk about, never mind irreparable harm. The applicant has got no defence against the claim for summary judgment that was granted. Also, his proposed application for rescission has no legal basis as it is anchored on blatant untruths and misrepresentations of the circumstances leading to the default judgment.

The applicant has other available and satisfactory remedies.

He has stated, in unequivocal terms, that the reason he is refusing to vacate the company house is the fact that he has not been paid his arrear salaries. Although he has filed no proof of such liability on the part of the first respondent, he is at liberty to sue the first respondent for the payment of any such claim. He does not have to remain in the house in order to successfully sue the first respondent. All he has to do is to comply with the mandatory provisions of section 6(b) as read with section 18(e) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:24].

In my view, the balance of convenience would best be served if the applicant is denied the relief he seeks. This is so because the house was allocated to the applicant as an employment benefit during the tenure of his employment contract. That contract was terminated on 30 March 2011 leaving no residual right or legal entitlement on the part of the applicant to the continued free occupation of that house. His continued free occupation of the house will greatly prejudice the first respondent in lost rentals. Already, the first respondent has lost US$26,640= in unpaid rentals over the past six (6) years of the applicant's unlawful occupation of the property. It is common cause that during these six (6) years, the applicant did not render any service to the first respondent.

On the other hand, if the application is dismissed, the applicant will simply pursue his claim against the first respondent. It is laughable, for lack of a better word, to suggest that the applicant cannot secure alternative accommodation in Zvishavane.

All in all, I associate myself with the comments by DUMBUTHSENA J…, in S v Mcnal 1986 (2) ZLR 280 where he said, while considering whether a party should be punished for the negligence of his legal practitioners;

“In my view, clients should, in such cases, suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Salogee and Another v Minister of Community DVT supra at 141 C- E when he said;

'There is a limit beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this court. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation on which the failure to comply with the Rules of this court was due to neglect on the part of the legal practitioners. The attorney, after all, is the representative whom the litigant has chosen for himself and there is little or no reason why, in return for condonation of a failure to comply with a Rule of court, the litigant should be absolved from the normal consequences of such a relationship no matter what the circumstances of the failure are.'”

In the present case, the applicant's legal practitioners negligently failed to comply with a peremptory provision of the Rules. In my view, it is not an acceptable explanation for a legal practitioner to come to court, nine months after the dies induciae has elapsed, and simply say that they did not see the court application for summary judgment contrary to hard evidence showing service and receipt of such an application. Such an explanation is an insult to the intelligence of the court, making it more difficult for this court to be satisfied of the applicant's good faith.

In the result, the application for stay of execution is hereby dismissed with costs.

This is an application for the return of the applicant's motor vehicles that it had issued to the respondents during the tenancy of their employment with the applicant.

The two respondents were employed by the applicant as Group Accountant and Branch Accountant respectively until 31 October 2015 when their services were terminated on notice. During the tenancy of their employment contracts, the respondents had been issued with motor vehicles for both business and private use on terms set out in their contracts as read with the applicant's motor vehicle policy.

The first respondent was issued with a Nissan Qushquai Registration No. ACX 4888 and the second respondent was issued with a Nissan Almera Registration No. ACU 6164. They were both obliged to return the motor vehicles upon termination of their contracts of employment.

When their contracts were terminated, on 31 October 2015, both respondents did not return the vehicles. Instead, they filed a complaint of unfair dismissal against the applicant. Their effort in that direction was unfruitful as the Labour Court, on the 23^rd of September 2016, held that the applicant was entitled to terminate the contracts on notice, and, instead, ordered that the respondents be paid compensation for loss of employment in terms of section 12(4b) as read with section 12C(2) of the Labour Act [Chapter 28:01] as amended.

Neither respondent appealed against the Labour Court judgement hence that decision remained extant to this day.

Despite not having appealed against the Labour Court judgment, the respondents refused to surrender the applicant's motor vehicle. It was, in such circumstances, that the applicant approached this court in this application seeking an order in the following terms:-

1. The respondents shall surrender to the applicant, or its authorised representative, a Nissan Qushquai registration No. ACX 4888 and a Nissan Almera registration No. ACU 6164, respectively, within 24 hours of service of this order.

2. Should the respondents fail or refuse to surrender the said vehicles, the Sheriff be and is hereby authorised to utilise the services of the police to repossess the said vehicles.

3. The respondents shall pay the costs of this application on a legal practitioner and client scale.

Upon being served with the application, the second respondent duly surrendered the vehicle that had been allocated to him. The first respondent, on the other hand, opposed the application.

The first respondent contended that after being appointed as Branch Accountant, on 1 March 2009, he was subsequently appointed Company Secretary for another company, Clover Leaf Panel Beaters (Pvt) Ltd (herein after referred to as CLPB) which appointment was made before he had completed his probation period with the applicant. This was done without cancelling his appointment as Branch Accountant with the applicant. The appointment as Company Secretary was, however, verbal. He averred that the applicant and Clover Leaf Panel Beaters (Pvt) Ltd are two different companies but with common ownership. When he was promoted to the position of Group Accountant he also continued as Company Secretary for Clover Leaf Panel Beaters (Pvt) Ltd (CLPB).

He further contended that when the vehicle was issued to him, he used it to carry out duties for the two companies. Upon termination of his contract with the applicant, he retained the vehicle as his terms of contract with Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) also entitled him to a motor vehicle. According to the first respondent, it was not clear as to which company had issued him the vehicle.

In the light of the purported employment by Clover Leaf Panel Beaters (Pvt) Ltd (CLPB), the first respondent contended that the present application is fatally defective for non-joinder of Clover Leaf Panel Beaters (Pvt) Ltd as applicant was well aware of his issue with Clover Leaf Panel Beaters (Pvt) Ltd.

It is my view that this point in limine was without merit. The applicant made it clear, in its founding affidavit, that Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) was its subsidiary and that by virtue of being the Group Accountant, the first respondent was required to provide secretarial duties to Clover Leaf Panel Beaters (Pvt) Ltd (CLPB). It was part of his duties and not that he was now separately employed by that subsidiary company….,.

It may also be noted that, in terms of Rule 87(1), the non-joinder of a party is not fatal. Rule 87(1) states that:

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

In casu, the issue between the applicant and the first respondent can easily be decided without the involvement of Clover Leaf Panel Beaters (Pvt) Ltd (CLPB).

A further point in limine raised was that the applicant is approaching court with dirty hands as it has not paid the first respondent his terminal benefits in terms of section 13 of the Labour Act [Chapter 28:01].

It is my view that the principle of dirty hands is inapplicable in the circumstances of this case.

The first respondent himself has been in unlawful possession of the applicant's motor vehicle from the date of termination of employment. The applicant has not refused to release the terminal package but has simply asked the first respondent to surrender the applicant's motor vehicle. It is the attitude of the first respondent that led to the delay in the payment of his terminal benefits, and, in my view, he cannot turn around and seek to benefit from his own intransigent attitude.

These points in limine were thus without merit and are accordingly dismissed.

In his response on the merits, the first respondent admitted that his contract with the applicant was terminated on 31 October 2015. He however contended that he has a right of retention of the motor vehicle by virtue of the fact that he is still employed by Clover Leaf Panel Beaters (Pvt) Ltd (CLPB). He nevertheless conceded that he has not been providing any services to the applicant or to Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) since the date of termination of contract.

Upon a perusal of the papers filed of record, with the exception of a purported answering affidavit as it was fatally defected, I was of the view that the first respondent is desperately clutching at straw.

It is trite that an owner of a property is entitled to vindicate it from whoever is in possession thereof without his consent. In Chetty v Naidoo 1974 (3) SA 13 (A)…, it was aptly stated that:-

“It is inherent in the nature of ownership that possession of the res should normally be with the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or contractual right).”

In Nyahora v CFI Holdings (Pvt) Ltd 2014 (2) ZLR 607 (S)…, ZIYAMBI JA aptly reiterated the legal position as follows:-

“The action rei vindicatio is available to an owner of property who seeks to recover it from a person in possession of it without his consent. It is based on the principle that an owner cannot be deprived of his property against his will. He is entitled to recover it from anyone in possession of it without his consent. He has merely to allege that he is the owner of the property and that it was in the possession of the defendant/respondent at the time of commencement of the action or application. If he alleges any lawful possession at some earlier date by the defendant then he must also allege that the contract has come to an end. The claim can be defeated by a defendant who pleads a right of retention or some contractual right to retain the property.”

See also Jolly v Shannon 1998 (1) ZLR 78 (H) and Arundel School Trust v Pettigrew 2014 (1) ZLR 596 (H) and Musanhi v Mt Darwin Rushinga Co-operation Union 1997 (1) ZLR 120 (SC).

In the present case, the applicant alleged it is the owner of a motor vehicle in the first respondent's possession. Such possession came about as a result of a contract of employment which contract was terminated on 31 October 2015. The motor vehicle had been issued to the first respondent in terms of the contract of employment, in particular clause 19 which provided that:-

“You shall be allocated a company vehicle for business and private use. All private trips outside the radius of 60km from your official residence should be authorised by the Managing Director.”

The first respondent having been issued with the motor vehicle in terms of the above contract was required to return the vehicle upon termination of the contract.

In Zimbabwe Broadcasting Holdings v Gono 2010 (1) ZLR 8 (H)…, GOWORA J…, made this point clear in stating 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' 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 respectively associate myself with the remarks of the learned Chief Justice.”

The above epitomises the situation that should obtain upon termination of employment between employer and employee vis-a-vis benefits that were being enjoyed by the employee prior to the termination. It is unfortunate that the plethora of case authorities on this subject has not deterred litigants from clinging onto what should rightfully be returned to the employer.

Where, as in this case, a right of retention is pleaded, the onus is on the respondent to show that he enjoys such a right. The respondent must establish such right and its basis.

The first respondent's contention was to the effect that his right of retention is derived from the fact that besides being employed by the applicant he had also been employed by Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) as Company Secretary and this employment was not terminated. He averred that when he was issued with the motor vehicle it was not clear which company had issued him the motor vehicle. He thus used the vehicle to perform duties for both companies.

This, in my view, is a lame excuse for the continued possession of the vehicle despite the owner's demand for its return. The applicant made it clear that the first respondent was employed by it and his duties, as Group Accountant, included providing secretarial duties to Clover Leaf Panel Beaters (Pvt) Ltd (CLPB). Clover Leaf Panel Beaters (Pvt) Ltd is, in fact, a subsidiary of the applicant.

This fact is further confirmed by the fact that the first respondent's remuneration was paid by the applicant; hence, when the contract was terminated, no remuneration was paid to the first respondent. Also, the first respondent ceased providing secretarial services to Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) upon termination of the contract with the applicant.

This position was also made abundantly clear to the first respondent in a letter dated 27 November 2015 by the applicant's legal practitioners when responding to the first respondent's inquiry through Likbridge Consultancy Services. In their letter of 27 November 2015, the applicant's legal practitioners stated, inter alia, as follows:-

“We refer to your letter dated 21^st November 2015 addressed to the Human Resources Manager for Clover Leaf Motors. We advise that your said letter was handed to us with instructions to respond to its contents.

We note that in its response to your earlier letter our client's Human Resources Manager explained that the secretarial duties that Mr Butholezwe Zhou was carrying out for Clover Leaf Panel Beaters were actually part of his employment duties as the Group Accountant for Clover Leaf Motors. With respect, this is more than adequate explanation on why and how such services would be automatically terminated once the employment contract has come to an end.”

The first respondent seemed to confirm this when he conceded that he was never remunerated for the Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) secretarial duties. Unlike his appointment as Branch Accountant, on 1 March 2009, and appointment as Group Accountant, the so-called appointment as Company Secretary for Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) was done verbally. In fact, he never applied for such a position in Clover Leaf Panel Beaters (Pvt) Ltd. This buttresses the applicant's argument that the secretarial duties the first respondent was performing for Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) were in fact part of his duties as the Group Accountant. This entity called Clover Leaf Panel Beaters was a subsidiary of the Clover Leaf Motors.

It may also be noted that the first respondent did not categorically deny that he was issued the vehicle by the applicant. He simply said it mattered little, if at all, who between the applicant and Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) would provide the motor vehicle, and, further, that “there was no clarity as to by whom I was given the motor vehicle.”

The first respondent was simply being untruthful as he should surely have known that it was the applicant that had issued him the motor vehicle in terms of Clause 19 of the contract of employment he had signed.

In any case, the first respondent admitted, in his opposing affidavit, that he had in fact offered to buy the vehicle from the applicant at some point. If he did not know the owner or if the applicant was not the owner, how could the first respondent offer to buy the vehicle from a non-owner?

I am convinced that the first respondent feigned ignorance on this point simply to protract his continued hold onto the motor vehicle.

The first respondent further contended that he has a right of retention of the motor vehicle based on the fact that he has not been paid his terminal benefits as stipulated in section 12C(2) of the Labour Act [Chapter 28:01].

This argument is also without merit.

It is common cause that after the applicant had terminated the first respondent's contract, as at 31 October 2015, the first respondent was enjoined to surrender the vehicle as of that date. His retention and use of the motor vehicle thereafter was unlawful. The first respondent's challenge of the termination did not entitle him to the continued use of the vehicle. See Chisipite Schools Trust (Pvt) Ltd v Clark 1992 (2) ZLR 324 (S). The challenge of the termination had the effect of delaying the release of the terminal benefits as the first respondent was challenging it.

The applicant, on the other hand, had to await the outcome of the first respondent's challenge of the termination which was only finalised on 23 September 2016. In the meantime, the applicant had called on the respondent to surrender the vehicle to no avail.

In their letter of 9 January 2017, addressed to the first respondent's legal practitioners, the applicant's legal practitioners reiterated the applicant's readiness to release the terminal benefits upon the respondent surrendering the vehicle. Paragraph 3 of that letter reads as follows:

“We hereby place it on record that your client's termination packages are available and the only reason they have not been released is the vehicles that they have continued to unlawfully hold on to. In the circumstances, your clients are hereby ordered to bring the said vehicles within twenty four (24) hours of this letter to facilitate an inspection of the same before the release of the terminal packages due to them in terms of the Labour Act.”

When the parties appeared before me for the hearing, the applicant's counsel made it very clear that his client was ready and able to pay the terminal benefits in terms of the Labour Act but would want the first respondent to produce the vehicle for inspection as he has been unlawfully holding on to the motor vehicle for a long time.

Counsel for the parties agreed to seek inspection of the vehicle by a third party.

Unfortunately, nothing came of this as the first respondent would not abide by what the legal practitioners had conceded was an amicable way of resolving the issue.

It was clear to me that the first respondent, despite unlawfully holding onto the motor vehicle, was not intent on resolving the issue. This then exposes his dilatory attitude by raising frivolous and vexatious issues as defences to the application.

The lack of bona fide on the part of the first respondent made it imperative that the applicant first be assured that the vehicle was still available and on its state before releasing the terminal benefits to the first respondent. That stance is reasonable in the circumstances of this case. If the first respondent was sincere he would surely have surrendered the motor vehicle and been paid his terminal package without much ado.

After hearing the parties and considering the merits of the application, I am of the view that the first respondent's opposition has no merit. The opposition was not bona fide at all but was meant to frustrate the applicant in recovering its vehicle. It was an abuse of court process warranting censure. He clearly is unlawfully holding on to the applicant's motor vehicle. He simply has no defence and has unnecessarily caused the applicant to bring this application at great expense. It is only proper that the first respondent be ordered to pay costs on the higher scale of legal practitioner and client scale as requested by the applicant.

Accordingly, it is hereby ordered that:

1. The first respondent shall surrender to the applicant, or its authorized representative, a Nissan Qushquai motor vehicle registration number ACX 4888 within twenty four (24) hours of the service of this order.

2. Should the first respondent fail or refuse to surrender the said motor vehicle, the Sheriff be and is hereby directed to repossess the said motor vehicle and deliver same to applicant.

3. The first respondent shall pay costs of this application on a legal practitioner and client scale.

The plaintiff is the Central Bank of Zimbabwe, constituted in terms of the Reserve Bank of Zimbabwe Act [Chapter 22:15]. It is headed by a Governor, who, at the material time, had created a post of Advisor to the Governor, a post not provided for in the Reserve Bank Act which provides for the appointment of not more than two Deputy Governors, but created all the same, whose incumbent was one Dr Munyaradzi Kereke.

The position of Advisor to the Governor enjoyed a lot of autonomy, what with a fleet of three (3) pool motor vehicles in its stable and drivers for those vehicles employed by the plaintiff, but under the control of the Advisor, who also wielded significant authority, including the authority to hire a driver in his personal capacity. Although such driver was not on the payroll of the plaintiff, the Advisor was entitled to allow him access to all the motor vehicles within his stable belonging to the plaintiff.

The defendant was one such driver in the office of the Advisor, employed, initially, by the plaintiff, but, after his retrenchment at the end of January 2011, he retained that position at the pleasure of the Advisor.

When the time came for the plaintiff to retrench some of its employees, and having sought and obtained authority to do so, the Governor wrote to the affected employees a letter dated 7 January 2011 advising them of that eventuality and the process that was to be followed to achieve the outcome. The defendant was a recipient of that letter and it stated in part:

“Dear Mr Maturure Privilege

RE: Termination of Contract of Employment through Retrenchment

1. In line with the provisions of section 12C of the Labour Act No.17 of 2002 covering the above subject, and the Labour Relations (Retrenchment) Regulations, Statutory Instrument 186 of 2003; Notice was given to the Works Council that staff who wanted to go on voluntary retrenchment were to present their names to management. This has since been done. Some members of staff would be put on involuntary retrenchment for re-alignment purposes. This too has been done.

2. Approval has been received in respect of the total package from: The Reserve Bank of Zimbabwe Board; The Works Council; The Ministry of Public Service, Labour and Social Welfare.

3. Regrettably, you are one of the candidates identified for retrenchment by your Divisional Management, so that, in line with the new Board's approved structure, the Bank can focus on its core objectives.

4. You are requested to kindly get in touch with the Human Resources Division to be advised of your total package details before the end of day on Friday the 14th of January 2011 in order to facilitate the release of your first entitlement of the package and to re-confirm your payment account details.

5. In the interest of good order, and in compliance with the law, you are required to sign an Acknowledgement Form, which is the basis upon which such fiscal entitlement as the retrenchment tax-free thresholds allowance can be availed to you and tax returns submitted to ZIMRA.

6….,.

7….,.

8….,.”

The defendant complied with the provisions of the retrenchment letter. He attended at the Human Resources Division and signed the Acknowledgment Form. He also completed a clearance form with the various departments of the plaintiff which set out the details of the employer's property he was surrendering.

At the Transport Division it was endorsed that the motor vehicle he had been using was “being used in Advisor's office.”

I have already stated that after retrenchment the defendant continued in the employ of the Advisor, in a private arrangement between them, and continued using the motor vehicle which had been assigned to him before, namely, a Toyota Hilux Vigo registration number ABD 7870 (“the vehicle”), which, at separation, it had been accounted for as “being used in Advisor's office.”

When the office of the Advisor was abolished or became vacant with the departure of Dr Kereke, at the end of January 2012, the plaintiff demanded the return of the vehicle.

The dispute then arose because the defendant lay a claim to it as his retrenchment package and refused to surrender the vehicle.

The parties could not resolve the dispute, as a result, the plaintiff instituted this action seeking an order compelling the defendant to return the vehicle, damages for unlawful use and deprivation of the vehicle from 9 February 2012 and punitive costs.

In its declaration, the plaintiff averred that the vehicle had been issued or assigned for use in the Advisor's office where the defendant was attached as a driver. It was in that capacity that the defendant had access to use the motor vehicle which remained the property of the plaintiff. The office of the Advisor having become vacant, upon termination of his contract, the plaintiff was entitled to the return of the vehicle for re-deployment.

In response, the defendant asserted that he is the owner of the vehicle; it having been given to him as a retrenchment package in terms of the parties agreement of 7 February 2011. For that reason he has been in lawful possession of the vehicle and the plaintiff has not suffered any damages.

The defendant counter claimed seeking payment of his outstanding retrenchment package and the delivery to him of the vehicle's registration book.

I must mention that the defendant's claim for his outstanding retrenchment money was disposed of in a judgment relating to a point taken in limine handed down on 2 April 2014 (HH152-14).

The issues that I still have to decide are:

1. Whether the vehicle was awarded to the defendant as part of his retrenchment package in terms of the Acknowledgement Form as read with the letter of the Governor dated 7 January 2011.

2. Whether the defendant should surrender the vehicle to the plaintiff; and

3. Whether the plaintiff has suffered damages as a result of the defendant's refusal to surrender the vehicle for which the defendant is liable and the quantum thereof.

The plaintiff's case was presented through the evidence of its head of Human Resources Division, Elliot Short Rwatirera, who has been so employed for 14 years, and its Senior Executive Support Services, Francis Tamanikwa.

That evidence is simple and straight forward. It is to the effect that the defendant was employed by the plaintiff as a driver, Grade 3, and was assigned to the office of the Advisor to the Governor, Dr Kereke. He was not entitled to a personal issue vehicle, but, in the discharge of his duties, he had access to three (3) pool vehicles belonging to the plaintiff which were attached to the office of the Advisor.

When the defendant was retrenched, at the end of January 2011, his retrenchment package did not include a motor vehicle. Motor vehicles were given to managerial employees at head level and above. In that regard, they determined the net book value of the vehicle in the possession of that employee which would have been allocated to that employee during the subsistence of the employment contract. Having determined the net book value, the plaintiff offered the vehicle to that employee indicating the net book value on the exit package and the calculated figure would reflect the amount due to the retrenchee taking into account the vehicle offered.

Elliot Short Rwatirera testified that everybody who was entitled to a motor vehicle received, from the plaintiff, a document to take to ZIMRA for change of ownership. He gave an example of one issued to L. Chari who was offered a Nissan Wolf Double Cab vehicle. The document reads:

“31 January 2011

Dear L. Chari

Please be advised that, in line with the retrenchment formula, you are being offered the following vehicles(s) at the indicated net book value, NBV. Reg No. Model/Make Year NBV (USD) AAN 9631 Nissan Wolf 3.0 Double Cab 2006 $0-00. The amount is payable to the Reserve Bank of Zimbabwe and shall be deducted from your total retrenchment package and back pay that is due to you. Please note that if your total retrenchment package plus backpay is less than the value of the vehicle(s) above you shall be obliged to pay the Bank the balance by the date of your receipt of final payment from the Bank. Please be guided accordingly.

Elliot Rwatirera

Senior Executive – Human Resources Management”

Elliot Short Rwatirera explained that such standard letter was given to any retrenchee being offered a vehicle they were using even if the vehicle was being offered at zero value. In addition, the vehicle and its zero value would reflect on such retrenchee's Retrenchment Package Advice. Where there was a net book value, as was the case with another example given, that of O. Kanyimo, the document would show the value which would be deducted from money due to the retrenchee.

The defendant did not receive any such documents; his Acknowledgement Form did not cite any vehicle details and his retrenchment advice did not make reference to any vehicle simply because he was never offered a vehicle.

Elliot Short Rwatirera stated that the defendant was a Level 3 grade, the lowest level of managerial employees at the Bank, which level was not entitled to Bank vehicles as part of their employment contracts, and, in that regard, they were not offered Bank vehicles.

He made reference to what he said was a Standard Acknowledgement Form signed by all managerial staff showing the details. In respect of the defendant, he signed it on 7 February 2011. Under the column dealing with vehicle, it simply showed the terms under which an employee entitled to a vehicle would be offered such vehicle, that is, if the vehicle was more than 5 years old, they would “drive out” without paying anything. If it was less than 5 years, the plaintiff would calculate the net book value. No details of a vehicle were inserted in the defendant's Acknowledgement Form because he was not entitled to any vehicle.

Again, the separation clearance form which the defendant signed showed that he did not surrender the vehicle he had been using because it remained “being used in Advisor's office.” That shows that he was not offered the vehicle which he continued using in the Advisor's office at the pleasure of the Advisor, although it remained firmly the property of the plaintiff.

The witness also alluded to the defendant's “Retrenchment Package Advice” dated 23 August 2011, which, unlike that of Chari, did not contain any reference to a vehicle whatever its value; again, emphasizing the fact that the defendant did not have the vehicle as his retrenchment package.

Even the ZIMRA application for a tax deduction directive form for the defendant, which he produced, made no reference to a motor vehicle. He was not given any document for change of ownership of the vehicle as no vehicle was offered to him.

The witness went on to say that after the defendant's retrenchment, the vehicle continued being fuelled and serviced by the plaintiff in recognition of the fact that it belonged to the plaintiff. He produced fuel requisition forms and service records showing that it was serviced by Harare Toyota and Croco Motors during the time it was in use at the Advisor's office - long after the defendant had been retrenched. If the vehicle had ceased to belong to the plaintiff it would not have been fuelled weekly and serviced regularly at the plaintiff's expense. The plaintiff does not do that to individuals' vehicles.

He stated that when Dr Kereke left employment he was asked to surrender the vehicle along with that which was being used by another attaché of his, P. Sibanda. He scribbled a response:

“MR MANASE

(1) Please take note:

(a) Mr Sibanda (ZRP) will bring vehicle today.

(b) Mr Maturure is not a Bank Employee. He was retrenched last year (2011).

Thank you.

M. Kereke 8/2/12”

That response was not helpful at all as it did not deal with the status of the vehicle.

Francis Tamanikwa, who heads the Transport Division, re-iterated what Elliot Short Rwatirera said in his evidence producing the registration book showing that the vehicle belongs to the plaintiff and affirming the service history and the fuelling of the vehicle while it was being used by the defendant when he was privately employed by Dr Kereke. He maintained that it was a pool vehicle used for the day to day running of the Advisor's office.

The two (2) gentlemen who testified on behalf of the plaintiff gave their evidence extremely well supported by documentation which they explained very clearly. In the process they made up a very good and clear case for the plaintiff in respect of ownership of the vehicle. What they failed to do, though, is justify the claim for damages.

They only stated that the claim for damages is based on a quotation obtained from Europcar on 3 August 2012 to the effect that they were hiring out a Mazda BT50 motor vehicle at the time at a daily rate of $109.

As to how this relates to the use of the vehicle, itself a Toyota Vigo, by the defendant and what mileage the use related to, they did not say. That evidence does not assist me to assess what loss the plaintiff has suffered as a result of the defendant's refusal to surrender the vehicle.

Try as he could, the defendant could not rebut the evidence given on behalf of the plaintiff. In fact, the defendant did not make a good witness at all. He stammered, stattered, and, in the end, he could not show where in the retrenchment documents it says he was given the vehicle as a package.

Asked to show where, in the Acknowledgement Form he signed on 7 February 2011, a document he claimed is the basis of his claim to the vehicle, he could not. He only cited the column of a vehicle which column, as I have said, does not identify any vehicle but appears to contain only terms upon which vehicles were offered. It does not offer him any vehicle. The defendant maintained that he was given the vehicle although he could not place a finger on anywhere in the retrenchment documents where he is given the vehicle.

Comically, he stated that there is nowhere in the documents where it says he is not entitled to the vehicle - a clear case of putting the cart ahead of the horse.

While conceding that those who were offered vehicles were given documents to that effect for change of ownership, the defendant insisted that he is still waiting for his own similar document.

The defendant stated that after his retrenchment he was employed, privately, by Dr Kereke at his butchery although he still reported at the plaintiff's offices and that he was using “his” vehicle in carrying out Dr Kereke's errands. In return, he was being assisted with school fees for his children. He could not explain why he was using what he regarded as his personal vehicle to conduct Dr Kereke's business and why his personal vehicle was fuelled and serviced at the plaintiff's expense all the time.

I was not impressed by the defendant as a witness and he simply did not make out any discernible case at all. His story was so incoherent it became difficult to think that he wanted to be taken seriously.

For instance, when quizzed under cross examination about the contents of the Separation Clearance Form which recorded that he was not surrendering the vehicle because it continued being used at the Advisor's office, he could only say that according to the Acknowledgement Form he signed, he had already been given the vehicle and that the Separation Form only allowed him to enter the plaintiff's premises with it while conducting Dr Kereke's private business.

Nothing can be furthest from the truth.

In my view, the defendant is engaging in a futile exercise because the Acknowledgement Form he anchors his claim on does not support his case. Quite to the contrary, all the documents produced in court point to one direction, namely, that the motor vehicle is registered in the plaintiff's name. It was used by the defendant during and after his employment in the furtherance of the plaintiff's affairs as he was serving under the Advisor. When he was retrenched he was not offered, and certainly did not accept, the vehicle as his retrenchment package. When the office of the Advisor became vacant, the defendant simply engaged in a smash and grab exercise making off with the vehicle belonging to the plaintiff and refused to return it without any justification.

The plaintiff has brought this matter as an actio rei vindicatio, the nub of which is that an owner of a property, be it movable or immovable, is entitled to reclaim possession of his property from whomsoever is in possession of it.

It is inherent in the nature of ownership that possession of the res should normally be with the owner, and, it follows that no other person may withhold it from the owner unless he is vested with some enforceable right against the owner like the right of retention or a contractual right. Chetty v Naidoo 1974 (3) SA 13 (A)…, where JANSEN JA said:-

“The owner, in instituting a rei vindicatio, need therefore do no more than allege and prove that he is the owner and the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

In our jurisdiction, that pronouncement was quoted with approval in Hamtex Investments (Pvt) Ltd v King HH403-12; Agrochem Dealers (Pvt) Ltd v Gomo & Ors 2009 (1) ZLR 255 (H); and in Alspite Investments (Pvt) Ltd v Westerhof 2009 (2) ZLR 226 (H) where…, MAKARAU JP…, said:-

“There are primarily two defences to the rei vindicatio, each aimed at destroying each of the two essential elements of the action.

The first one seeks to destroy the claim of ownership completely by denying that the plaintiff is the owner of the property in question or seeks to diminish his rights in the property by admitting his or her ownership but by alleging that the plaintiff has parted, under some recognised law, with the right to exclusive possession of the property.

The second defence, of course, is to deny possession of the property at the time the action is brought or the claim is instituted.”

I have stated that the evidence led shows that ownership of the vehicle lies with the plaintiff. It would ordinarily therefore be entitled to vindicate against the whole world, and, indeed, the defendant, unless the latter can sustain any of the two (2) defences alluded to by MAKARAU JP…, in Alspite Investments (Pvt) Ltd v Westerhof 2009 (2) ZLR 226 (H).

The defendant has admitted possession. He would, therefore, survive the implications of a rei vindicatio by either destroying the claim to ownership or showing a diminished right of ownership.

In my view, the defendant has dismally failed to sustain any defence. He has not shown that he was awarded the vehicle as part of his retrenchment package in terms of the Acknowledgement Form that he signed at his retrenchment. He has not pointed to any other basis upon which ownership could have transferred to him or curtailed. I conclude, therefore, that the plaintiff is indeed entitled to vindicate against the defendant who has no choice but to surrender the vehicle.

Regarding the second leg of the plaintiff's claim, I have already said that the plaintiff has not proved its entitlement to a recognisable figure in the form of damages.

While the plaintiff is entitled to some form of compensation for the unauthorised use of its vehicle, it still bears the onus to prove the quantum of such compensation. Having failed to come up with an acceptable formulae for computing the damages, I am unable to accede to the prayer for damages which remains unproven.

Regarding the claim for costs on the legal practitioner and client scale, the plaintiff has not established an entitlement to these. It cannot be said that the defendant's resistance of the claim was outrageous in the circumstances especially as the plaintiff's conduct of allowing a non-employee to drive its vehicle under the watch of Dr Kereke for over a year may have led the defendant down the garden path.

In the result, IT IS ORDERED THAT:

1. The defendant shall forthwith deliver to the plaintiff the Toyota Hilux Vigo motor vehicle registration number ABD7870.

2. The defendant shall bear the costs of suit on an ordinary scale.

This is an action for the vindication of the plaintiff's vehicle. The salient features of this action may be summarised as follows:

The plaintiff is the registered owner of a Toyota Land Cruiser registration no. ACF 1290. The defendant was appointed a non-executive Chairman of the plaintiff's Board of Directors since 2006. He was allocated the above referenced vehicle for his use in July 2011, a month before he was removed from the plaintiff's Board. Upon his removal as chairperson, the defendant did not return the motor vehicle and has refused to return the vehicle to the plaintiff.

The plaintiff called its Company Secretary, Mr Tembelani Kohle Ncube, as its only witness. His evidence is summarized as follows:

The plaintiff is the owner of the Toyota Land Cruiser in issue. The defendant has possession of the vehicle which was allocated to him as non-executive chairperson of the plaintiff's Board of Directors. He was allocated the vehicle to use for both business and private purposes during his tenure of office. The defendant has been removed as the chairperson of the plaintiff and he is not entitled to possess the vehicle. He is not aware of any policy or resolution which entitles former Board chairpersons and members to retain vehicles issued to them. The chairperson is issued with a vehicle he uses in terms of a Board resolution. The motor vehicle policy available covers executive, middle managers, and employees, other than directors, who are entitled to motor vehicles in terms of their employment contracts. The defendant was previously issued two Mercedes Benz vehicles and a Toyota Prado and these were returned to the pool when he was allocated a new car. The defendant returned these vehicles because he had a replacement vehicle. The defendant was not entitled to retain the vehicle when he ceased to be a Board member or non-executive Chairperson. A Board meeting of 11 December 2012 resolved that the incumbent chairperson purchase his vehicle and it is specific to that incumbent chairperson. When the defendant was in office, there was no such policy and the company would retain the vehicle.

The witness was not aware of any non-executive Director, before the defendant, who retained his official vehicle.

The defendant testified as follows:

He was the non-executive chairperson of the plaintiff for the past six (6) years. He started using the vehicle in issue in 2011.The vehicle belongs to the plaintiff and he possesses it. He is entitled to the vehicle because his predecessors were allowed to purchase their vehicles after leaving the company. His predecessor, Mr Kadenga, was allowed to purchase his vehicle after leaving the company. Mr Kudenga was offered his vehicle but he turned down the offer because he was not happy with its state. The practice is to allow chairpersons to exercise the right to purchase their vehicles. He expected that he would be offered to purchase the vehicle. He was treated unfairly as he was not offered the vehicle. He served the company well. He is prepared to pay for the vehicle.

The current position, as from December 2012, is that a non executive chairperson can purchase his vehicle at 20% of book value. The company has decided to come up with a resolution to cover or protect a certain individual so that he can benefit by purchasing his vehicle when he leaves the company.

The witness contended that although there was no resolution allowing chairpersons to purchase their official vehicles, there was an understanding and a practice in place that allowed purchase of vehicles by non-executive chairpersons. The witness conceded that his letter of appointment does not mention the right of retention of the vehicle on termination of the appointment. He expected that the company would offer him the vehicle as shown by precedent. He is holding onto the vehicle for justice to prevail and wants the parties to negotiate and if he is given a fair price he will pay. Without prejudice negotiations have failed.

The evidence of Mr Fortune Chasi, to the effect that previous non-executive chairpersons were offered to purchase their issues and that same may have taken the offers, was admitted by consent of both parties.

The issue that will dispose of this dispute is whether the defendant is entitled to possess the plaintiff's car by reason of the fact that the same ought to have been offered to him for purchase because former non–executive directors were offered their issues.

The rei vindicatio is a common law remedy which is based on the principle that an owner of property cannot be deprived of his property without his consent and is entitled to recover it from any person who possesses it without his consent.

In Chetty v Naidoo 1974 (3) SA 13 the court recognised that an owner has exclusive possession of his property and that no other person may withhold that right from the owner unless he is vested with an enforceable right against the owner. Similar sentiments were expressed by MALABA J…, in the case of Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC) where he made the following remarks;

“The owner may claim his property wherever found, from whosoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res; the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

See also Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441 (A).

A litigant seeking to rely on the plea of rei vindicatio must prove the following;

(i) That he is the owner of the property in question. See Jolly v Shannon and Anor 1998 (1) ZLR 78 (HC).

(ii) Once ownership is proved, its continuation is presumed. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC).

(iii) He must also prove that at the time of commencement of the action, the defendant was in possession of the property. See Masuli v Jera HH67-07.

(iv) He is enjoined to prove that the defendant's possession was without the plaintiff's consent or concurrence.

The law does not permit that a property owner be deprived of his property against his will and is entitled to recover it from any person who possesses it against his will. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC). Once ownership has been proved, the onus is on the defendant to prove a right of retention. See Chetty v Naidoo 1974 (3) SA 13, Claudius Chenga v Virginia Chikadaya and Ors SC07-13.

In Introduction to Law, C.G Van Der MERWE and J.E Du PLESSIS summarises the defences available in a vindicatory action as follows;

1. The defendant had acquired the property by prescription;

2. The third party is the owner;

3. The property was alienated or destroyed; or

4. The defendant has a superior contractual right to possess.

In Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441 (A) HOLMES JA said the following on the requirement placed on the defendant to have an enforceable right against the owner;

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless, of course, the possessor has some enforceable right against the owner.”

It is common cause that the plaintiff is the owner of the vehicle in issue and the defendant has possession of it. The plaintiff avers that the defendant possesses the vehicle without its consent.

The defendant conceded that he is in possession of the vehicle without the plaintiff's consent or concurrence. The defendant did not pursue his stance that he is entitled to the vehicle as a terminal benefit. The thrust of his defence was that he is entitled to possess and purchase the vehicle because former chairpersons were allowed to purchase their issues and he expected that he would be offered to purchase his vehicle in accordance with that practice. He alluded to a resolution passed in December 2012 which enables the incumbent chairperson to purchase his issue.

The plaintiff conceded that former chairpersons may have been offered their issues. The plaintiff's motor car policy covers employees - other than Directors. It does not cover non-executive Directors whose benefits are covered by resolutions of the Board. There is no vehicle policy or Board resolution entitling the defendant to purchase the vehicle at the end of his term. There is no contractual right to possess the vehicle. There is also no proof of an offer to purchase the vehicle either express or implied.

I am not in agreement with the defendant's contention, in his closing submissions, that he was offered directorship on the understanding that the plaintiff would offer him his last car provided that he had to pay for it.

There is simply no evidence to support that assertion.

In the absence of a car policy Board resolution entitling him to purchase the vehicle, or an offer to purchase the vehicle, the defendant does not have a claim of right over the vehicle.

The defendant is trying to arm twist the plaintiff into selling the vehicle to him on the premise that other directors have previously been offered to buy their own issues. This state of affairs does not entitle him to purchase the vehicle. The fact that the plaintiff offered previous directors their vehicles after the termination of their contracts does not bind the plaintiff to sell this vehicle to the defendant. The plaintiff has no obligation to sell the vehicle to him.

The defendant is holding the vehicle against the wishes of the plaintiff.

It is entirely in the discretion of the plaintiff whether to offer the vehicle to him. The court would err were it to compel the plaintiff to sell the vehicle to the defendant in the absence of an offer to sell the car or proof of some other entitlement. Similar sentiments were expressed by NDOU J in Dhege v Dell Medical Centre HB50-04 where he remarked as follows;

“In the circumstances, it cannot be argued that the respondent…, was obliged to sell the company car to applicant. The court cannot compel a party to exercise its discretion in a particular fashion. The court can compel a party to do what is mandatory in terms of an existing agreement. The right to purchase the company car could only be exercised after an offer had been made to the employee and not before. The option to offer for sale, cars used by employees, was a privilege and not a right.”

The defendant's right to use the vehicle ceased when he left the plaintiff's company. The fact that other directors were allowed to purchase their issues does not confer rights on him to purchase the vehicle.

I agree with counsel for the plaintiff's contention that the hope and expectation of an offer does not justify possession of the vehicle.

The defendant's expectation that the vehicle would be sold to him is not legitimate. His hold on to the vehicle is unlawful. The defendant has failed to show that he has contractual or enforceable rights against the plaintiff. He has no legal justification to continue holding onto the plaintiff's vehicle. The applicant is entitled to the order sought.

In the result it is ordered as follows:

1. The defendant is ordered to return Toyota Land Cruiser registration number ACF 1290 within 7 days of the service of this order on him.

2. Should the defendant fail to comply with this order, the Deputy Sheriff be authorised to seize from the defendant a Toyota Land Cruiser registration number ACF1290.

3. Costs of suit.

The applicant seeks an order of rei vindicatio. It seeks recovery of its property, namely, motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5, and a Samsung Tablet 4 presently in the possession of the respondent without the applicant's consent.

The circumstances are that the respondent was employed by the applicant as a Director of Works in terms of a written contract. The respondent gave notice of his intention to resign from the applicant's employment. He indeed resigned on the 18^th of December 2017. During the term of his employment the respondent was issued with a motor vehicle and other gadgets for use in the performance of his duties. Upon resignation, the respondent remained in possession of the vehicle and the gadgets. Despite the termination of his employment the vehicle and the gadgets remained registered in the names of the applicant. The applicant requested the respondent to surrender the motor vehicle and other gadgets that were issued to the respondent during the course of his employment. The respondent, despite lawful demand, declined to return the property in question prompting the applicant to file a police report at ZRP St Marys CR68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the Prosecutor General who declined to prosecute holding that the dispute was civil.

This prompted the applicant to file this urgent chamber application for rei vindicatio.

The respondent opposed the application. He raised three points in limine in his Notice of Opposition which he thought could dispose of this matter which can be summarized as follows -

(a) The application is frivolous and vexatious;

(b) The application is not urgent;

(c) Lis alibi pendens; and

(d) That the High Court has no jurisdiction to hear this matter....,.

THE APPLICATION IS FRIVOLOUS AND VEXATIOUS

The respondent's contention was that he is entitled to the vehicle and the other gadgets in terms of clause 17 of his employment contract which provides that on resignation he was entitled to an option to purchase his allocated vehicle at 10% of book value. He averred that since he resigned his contract provides that as his benefits he is entitled to a 90% discount on his conditions of service hence, in the event of not getting the vehicle, he would be prejudiced of his 90% discount on the vehicle.

The applicant opposed this point in limine and relied on the cases of Joram Nyahora v CFI Holdings (Private) Limited SC81-14 and Tendai Savanhu v Hwange Colliery Company SC08-15.

Clause 17 of the respondent's contract of employment provides that -

“Purchase Option at 10% of Book Value

The HOD shall be given the first right of refusal to purchase his/her allocated vehicle as follows:

(i) On expiration of contract.

(ii) Upon resignation or resignation on medical grounds.

(iii) Upon dismissal no purchase option will be exercised.”

The applicant's argument was that the property in question remained the property of the applicant and was never given to the respondent hence the applicant has a right to bring this application for rei vindicatio. It said though the contract of employment talks of the respondent's right of first refusal to purchase the vehicle in question, the applicant was not obligated to sell the property in question to the respondent. See Eastview Gardens Residents Associations v Zimbabwe Reinsurance Corporation Ltd and Others SC90-02.

In this case, it is not in dispute that the respondent resigned from his employment. It is common cause that by the time of his resignation the applicant had neither made a decision to dispose of the vehicle and the gadgets nor offered the said property to the respondent for sale. In my view, the ownership of the vehicle and the other gadgets remained vested in the applicant. I therefore agree with the applicant's argument that by ceasing to be an employee of the applicant the respondent's possession and use of the gadgets also ceased unless they had been offered to the respondent to purchase. I entirely agree with the decisions of the Supreme Court in the cases of Tendai Savanhu v Hwange Colliery Company SC08-15 and Joram Nyahora v CFI Holdings (Private) Limited SC81-14. On this basis, the first preliminary point lacks merit and is hereby dismissed since the application is not frivolous and vexatious....,.

AD MERITS

The application before me is a rei vindicatio action brought by the applicant against the respondent. I will therefore deal with the matter without regard to what is happening at the Labour Court. In dealing with the matter, I am mindful of the fact that an applicant seeking to rely on the rei vindicatio must prove the following -

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.

It is trite law that the owner may claim his property wherever, from whoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner; such as right of retention or contractual right. The owner need only to prove that he is the owner and that the respondent is in possession without his or her consent. See Silvertondale (Pvt) Ltd 1999 (2) SA 986.

In casu, the respondent contented that he was supposed to purchase the vehicle and the other gadgets. Yet, it is common cause that the property belongs to the applicant. In my view, the respondent failed to prove any right or entitlement to the property in question. He therefore must return it since he has no basis to continue holding onto the vehicle and the other gadgets.

In the result the applicant has managed to prove its case.

This is the point that was well articulated by the Supreme Court in the cases of Joram Nyahora v CFI Holdings (Private) Limited SC81-14 and Tendai Savanhu v Hwange Colliery Company SC08-15. I will therefore grant the following order -

TERMS OF ORDER MADE

FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The Respondent be and is hereby ordered to surrender possession of and to return to the Applicant:

(a) A motor vehicle, namely, a Toyota Hilux Double Cab, Registration Number AAE 7098;

(b) HP 450 laptop;

(c) Samsung Galaxy S5;

(d) Samsung Tablet 4;

upon service of this order, failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to take all necessary steps to recover the said motor vehicle from the Respondent or any person whomsoever is in possession thereof and wherever the motor vehicle may be situate and return the same to the Applicant.

2. The Respondent should pay the costs of suit on an attorney client scale.

INTERIM RELIEF

Pending confirmation or discharge of this provisional order, Applicant is granted the following relief:

1. The Respondent be and is hereby ordered to surrender and return -

(i) A motor vehicle, namely, a Toyota Hilux Double Cab, Registration Number AAE 7098;

(ii) HP 450 laptop;

(iii) Samsung Galaxy S5;

(iv) Samsung Tablet 4;

to the Applicant's premises, being Chitungwiza Municipality Head Office where it shall be kept/stored by the Applicant pending the return day.

2. In the event of the Respondent failing to comply with the terms of paragraph 1 of this order, the Sheriff or his lawful deputy be and is hereby directed and authorized to take any and all necessary steps to recover the said motor vehicle, HP 450 laptop, Samsung Galaxy S5 and Samsung Tablet from the Respondent or any person whoever is in possession thereof and return them to the Applicant for the purposes of compliance with paragraph 1 of this order.

SERVICE OF THE ORDER

A copy of this order be served upon the respondent by the applicant's legal practitioners.

The defendant was employed by the plaintiff as a driver attached to the Advisor to the Governor. He was issued with a Toyota Vigo motor vehicle registration number ABD7870 belonging to the employer for use in the discharge of his duties. He was retrenched from employment in January 2011 in terms of an approved retrenchment package which he signed in terms of which he is entitled to be paid a net sum of $19,312=80.

The plaintiff has sued the defendant seeking an order directing him to return the Toyota Vigo motor vehicle he is holding on to and damages for unlawful use of the said vehicle.

He initially took a point in limine that the dispute involving the motor vehicle is a labour one in which this court has no jurisdiction. Counsel for the defendant abandoned that point in limine, correctly in my view, on the basis that it was not well taken given that the plaintiff's cause of action is the actio rei vindicatio, a purely civil remedy in which this court's jurisdiction has not been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The defendant has counter claimed seeking payment of $19,312=80 being unpaid retrenchment package and delivery of the registration book of the motor vehicle he claims is part of his retrenchment package.

The plaintiff objected to the defendant's counter-claim on the basis that it is, in essence, a labour dispute which should be determined by the Labour Court enjoying exclusive jurisdiction by virtue of the ouster provision contained in section 89(6) of the Labour Act. Counsel for the plaintiff submitted that as the defendant's claim is for payment of a retrenchment package, which is provided for in section 13(1)(b) and section 13(2) of the Labour Act [Chapter 28:01], this court's jurisdiction has been ousted by section 89(6). It is the Labour Court which enjoys jurisdiction exclusively.

Counsel for the defendant submitted that this court should exercise jurisdiction because in the counterclaim the defendant is seeking to enforce a civil debt. The fact that the debt arose out of an employment relationship is irrelevant. He maintained that the Labour Court has no jurisdiction to hear and determine civil disputes, the disposition of which does not involve the application of Employment Law expressly provided for by statute. It was strongly argued, on behalf of the defendant, that the right of an individual to approach this court seeking relief other than that specifically set out in the Labour Act remains as section 89(6) does not take away the right for civil relief premised on purely Civil Law principles.

Section 89(6) of the Labour Act [Chapter 28:01] provides;

“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).”

Section 89(1) of the Labour Act [Chapter 28:01] states that:

“The Labour Court shall exercise the following functions:

(a) Hearing and determining applications and appeals in terms of this Act; 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 in subs (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.”

The procedure for retrenchment of employees is provided for in section 12C of the Labour Act. Section 13 provides:

“Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, where any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(c) Is incapacitated from performing his work; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect of any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.

(1a) Wages and benefits payable to any person or to his or her estate in terms of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of section 12C.

(2) Any employer who, without the Minister's permission, withholds or unreasonably delays the payment of any wages or benefits owed in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or both such imprisonment.”

In his supplementary heads of argument, counsel for the plaintiff conceded that section 13 of the Labour Act specifically excludes retrenchment packages which is included as an unfair labour practice by virtue of the all-embracing section 8(e)(iv) of the Labour Act, which provides that an employer commits an unfair labour practice if he fails to comply with a determination or direction which is binding upon him in terms of the Labour Act.

It is clear that a retrenchment package is provided for in the Labour Act. It is an entitlement of an employee whose employment is terminated in terms of section 12C of the Labour Act. Where an employer does not pay a retrenchment package or delays making payment, an employee has a remedy - including criminal sanction. Indeed, failure to pay constitutes an unfair labour practice. There are remedies available for unfair labour practices.

I find myself having to repeat what was stated in Matongo v Midlands State University HH174-13…, that:

“This court has, in a number of cases, interpreted that ouster provision to mean that the Labour Court has jurisdiction in all matters where the cause of action and remedy for that are provided for in the Act; Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 204 A; Tuso v City of Harare 2004 (1) ZLR 1 (H); Moyo v Gwindingwi N.O. & Anor HB168-11 at pp 5-6 (now reported in 2011 (2) ZLR 368); Jambwa v GMB HH124-13 at p4;

I am in agreement with the postulation of MAKARAU JP (as she then was) in Medical Investment Ltd v Pedzisayi (supra) at 114 C that:

'In interpreting these two sections of the Act (i.e. section 89(1) and section 89(6)) this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in this Act.'

I have cited the provisions of section 13 of the Act which entitle an employee to wages and benefits upon termination of the employment contract. In the event of a breach of those provisions the employee has remedies, including criminal prosecution, against the employer.”

In Chiwundo v Zimbabwe National Family Planning Council HH212-13…, I made the point:

“To the extent that the applicant was entitled to appeal all the way to the Labour Court, it means that the substance of this application is, in essence, a labour dispute disguised as an application for a declarator. Section 89(6) of the Labour Act [Cap 28:01] has ousted the jurisdiction of all other courts, in the first instance, to hear and determine any application, appeal or matter falling under the jurisdiction of the Labour Court. The present dispute clearly falls under the ouster provisions as it should be determined by the Labour Court.”

See also William Bain & Company Holdings (Pvt) Ltd v Nyamukunda HH309-13.

In my view, the defendant's cause of action, being the non-payment of a retrenchment package, is found in the Labour Act. His remedy is also located in that Act. For that reason, the jurisdiction of this court has been ousted by section 89(6) of the Labour Act. It matters not that the package was agreed between the parties. In fact, it was approved by the relevant authorities, namely, the Works Council and the Minister of Public Service, Labour and Social Welfare. This court will still not exercise jurisdiction.

1. The plaintiff's point in limine is hereby upheld.

2. Jurisdiction in respect of the defendant's counter claim is declined.

3. The matter shall proceed to trial in respect of the plaintiff's claim.

4. The issue of costs is reserved until the end of trial.

The respondent was employed by the applicant as Head Administration. As part of his employment benefits he was allocated a motor vehicle for his duties, namely, a Toyota Hilux registration number ABD 8617 (the vehicle).

On 3 June 2011, the applicant terminated the respondent's contract of employment following disciplinary proceedings in terms of the National Code of Conduct. When the respondent was on suspension he was allowed to use the vehicle. The respondent challenged the dismissal by noting an appeal to the Labour Relations Office. The matter is still pending.

The applicant then instituted the present proceedings seeking to recover the vehicle from the respondent. The basis for seeking such relief is that the respondent does not have any lawful basis for holding on to the applicant's vehicle. His entitlement to the vehicle, like any other benefits, ceased as a consequence of the termination of his employment. It was also averred that by holding onto the vehicle, the respondent is contravening section 57 of the Road Traffic Act [Chapter 13:11].

The application is opposed mainly on three grounds.

(i) The first ground is that this court has no jurisdiction to entertain an application of this nature. The matter is pending before the Labour Court and the applicant ought to have followed that route.

(ii) The second ground is that the noting of an appeal suspends the decision appealed against.

(iii) The third ground is that he is entitled to continue to use the vehicle as the terms of his suspension allowed him to use the vehicle pending the determination of the matter.

JURISDICTION

It was submitted on behalf of the applicant that the present claim is based under the common law principle of rei vindicatio. There is no provision, in terms of the Labour Court Act [Chapter 28:01] which allows it to deal with such an issue.

It was further submitted that the decisions in Zimtrade v Marlord Makaya 2005 (1) ZLR 427 (H); Medical Investments Limited v Rumbidzayi Pedzisayi HH26-10; and DHL v Madzikanda HH51-10 were patently wrong and that this court was at large to depart from them.

It was contended that if there was a labour dispute between the parties, but the relief being sought cannot be granted by the Labour Court, as in the case of rei vindication, the High Court exercises jurisdiction. This would constitute an answer to the position adopted by MAKARAU JP in the three cases referred to above. The un-intended consequence of the position in these three cases is that it leaves a dispute without an adjudicating authority.

It was further contended that when an employee is dismissed, the employer-employee relationship ceases to exist. The relationship can only be salvaged by a lawful order reinstating the employee. Where there is no such relationship then the rules of Labour Law do not apply. The parties will then have to be guided by the operation of common law which is properly administered by courts of inherent jurisdiction such as this court.

The respondent contends that this court has no jurisdiction to entertain this matter and relies on the authority of the three cases referred to by the applicant.

It is common cause that the respondent acquired or possessed the vehicle by virtue of an employment contract. The contract was terminated. The respondent is challenging the termination of the contract.

The issue for me would be whether the issue of vindication of the vehicle can be determined without directly dealing with the rights of the parties on the issue of termination of the contract of employment.

The answer, in my view, is to be found in DHL v Madzikanda HH51-10…, where MAKARAU JP…, in reference to her other judgment in Zimtrade v Marlord Makaya 2005 (1) ZLR 427 (H) stated:-

“In that matter, which was unopposed, I declined jurisdiction. My reasoning in that matter was, firstly, that the Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and termination of employment. Secondly, I reasoned that the possession of the employer's property by an employee, in terms of the contract of employment, is so inter-dependently linked to the contract that one cannot decide on one without deciding on the other.

In the result, because the Labour Court has exclusive jurisdiction over the one, it follows that it also has exclusive jurisdiction over the other. The conditions of service of an employee are simply the terms upon which that employee is employed and to try and separate the contract from its terms upon which that employee is employed and to try and separate the contract from its terms appears to me legally untenable, and, in any event, highly untenable.”

I associate myself fully with the above sentiments.

The relief that the applicant seeks in this matter is premised on the final outcome of the labour dispute. That dispute has not been exhaustively and decisively determined by the appropriate court. MAKARAU JP…, in DHL v Madzikanda HH51-10 dealt with the issue why the Labour Court is the appropriate forum….,. She said:-

“Where, however, a dispute can either found a cause of action at common law or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Act.

In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”

I will therefore find that this court has no jurisdiction to grant the relief that the applicant seeks. I will adopt the procedure adopted by MAKARAU JP…, by proceeding to determine the matter on the merits on the assumption that I might have erred.

The facts of this matter are almost on all fours with those in DHL v Madzikanda HH51-10 where MAKARAU JP…, made a finding that the status of the respondent in that matter had not been finally determined as it was pending before the Labour Court and that the respondent has successfully discharged the onus on him to prove the right to possess the vehicle pending the determination of the appeal that was pending before the Labour Court.

The respondent, in casu, has discharged the onus on him to establish the defence of claim of right. In effect, the applicant has not advanced any arguments on that issue. If I had jurisdiction in this matter I would have found for the respondent.

The last issue is whether the noting of an appeal to the Labour Court suspends the decision appealed against in view of the provision of section 92E of the Labour Act [Chapter 28:01].

It was contended, for the applicant, that an appeal in terms of section 92(E) of the Labour Act does not suspend the decision appealed against. Any action taken after dismissal is valid even if the dismissal is later overturned. The employer is at liberty to hire another employee. That is why there is section 89(2)(c) of the Labour Act which allows a court ordering re-instatement to specify an alternative for damages in lieu of reinstatement.

That an appeal filed in terms of section 92E of the Labour Act does not suspend the decision appealed against is settled. The employee is regarded as dismissed pending the determination of the appeal. MAKARAU JP…, in DHL v Madzikanda HH51-10…, dealt with the issue in this way;

“It however appears to me that the provisions of section 92E of the Act have no effect on the claim of right that the respondent is raising at common law. Where the law regards the respondent as dismissed he has never accepted that position and is challenging his purported dismissal before the Labour Court. For as long as his challenge is alive and not fully determined, his claim of right remains alive with it. It is only when his challenge is invalidated at law that he loses the basis for his claim of right. The claim that the respondent has is not, in my view, dependent upon whether the law regards him as an employee or not rather it is dependent upon whether or not the dispute between the parties has been definitively resolved.”

In casu, the dispute between the parties has not been exhaustively and definitively determined. The respondent's defence of claim of right is still alive. The applicant can only approach this court after the appeal has been determined. Assuming I had jurisdiction, I would have dismissed the application on the basis that it is premature.

In view of the above findings I will make the following order:

1. The application is dismissed.

2. The applicant to pay the respondent's costs.

The applicant and the respondent enjoyed an employer-employee relationship for a period of 16 years; the respondent having been taken in initially as a low level employee, but, to his credit, rising through the ranks to the position of Branch Manager for Marondera.

At some stage during the period of employment, the respondent was issued with the employer's Ford Ranger 1800 pick-up registration number AAO 4838 for use although initially he was not entitled to it. When he was promoted to Branch Manager, it was a condition of employment that he be allocated a vehicle, and, therefore, held the vehicle as part of his conditions of service. In addition, he was also allocated a company house, being No.1088 Fairview Crescent, Winston Park, Marondera at a nominal rental of US$20 per month deducted from his salary.

On 16 May 2011, the respondent resigned from employment, and, in his letter of resignation of that date, he requested to purchase the motor vehicle that he was using. The applicant refused to sell the motor vehicle to him and demanded that he surrenders it and also vacate the company house on a given date. The respondent did not surrender the vehicle neither did he vacate the house.

I must mention that a dispute arose between the parties hinging on whether the respondent had resigned or had been dismissed as the applicant had, after the respondent's resignation, purported to conduct a disciplinary hearing and to dismiss him from employment. Although that leg of the dispute between the parties is not before me, I mention, for completeness, that it has since been resolved by the Labour Court which concluded that the respondent had in fact resigned and had not been dismissed.

Be that as it may, the respondent's refusal to surrender both the vehicle and the house prompted the applicant to make this application before this court seeking an order compelling the respondent to surrender the property.

The application is opposed, and, in his opposing affidavit, which also betrays the level of acrimony in the relationship between the parties, the respondent sought to argue that as the motor vehicle and accommodation were part of his employment benefits, those issues were outside the jurisdiction of this court and fell for determination by the Labour Court which was then seized with an appeal he had lodged therein.

The respondent insisted that in terms of the conditions of service of the applicant, he was entitled to purchase the vehicle as he had had it for 7 years when the conditions of service allowed an employee the right to purchase a vehicle allocated to him at the expiration of a period of 5 years....,.

Regarding the merits of the matter, the respondent's opposition is twofold, namely;

(i) That he is entitled to purchase the motor vehicle as he has had it for more than five (5) years as provided for in his conditions of service.

(ii) Secondly, he is entitled to remain in the employer's house until such time that he has been paid his terminal benefits.

Counsel for the respondent submitted that the respondent is willing to vacate the house but would want that to be tied to payment of his terminal benefits. While conceding that the respondent did not have a lien right over the house, he still insisted on some kind of entitlement.

What is clear from the papers is that the respondent did not purchase the vehicle. At no time did the parties conclude a sale agreement involving the motor vehicle. In fact, the respondent only requested to purchase the vehicle in his letter of resignation which request was turned down. I have also been referred to the applicant's Personnel Policy and Procedure Manual dealing with the vehicle policy; section 11 of which gives the applicant the sole discretion to authorise disposal of vehicles to employees, taking into account a number of factors including the employee's disciplinary record, good performance at work, and the vehicle's mileage.

It cannot be said, with any degree of certainty, that the respondent is entitled to purchase the vehicle. Even if he was, this cannot give rise to an entitlement to retain it pending the conclusion of a sale agreement. To that extent, the words of MAKARAU JP…, in Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…, are apposite. She said:

“I am unaware of any law that entitles a prospective purchaser to have possession of the merx against the wishes of the seller prior to delivery of the merx in terms of the sale agreement. I was not referred to any such law during the hearing of the matter. My limited research has not yielded any.”

In my view, it is the height of turpitude for the respondent to hold on to both the vehicle and the house years after termination of the employment contract under circumstances where he has no rights whatsoever over the properties.

Counsel for the respondent could not advert to any legal authority entitling a former employee to confiscate a former employer's property in the manner the respondent has done. He could not come up with any authority dis-entitling a former employer from vindicating against a former employee in respect of its property.

The fact that the respondent is owed terminal benefits is not a ground for refusal to surrender assets.

In the end, we are left with the tired and limping argument that because the respondent has referred the issue of whether the employment contract was terminated by dismissal or by resignation to the Labour Court, then this court should not entertain this application even though the Labour Court dispute not only did not have anything to do with the issues before this court but also determined that dispute by judgment delivered in May 2013. I am satisfied that the applicant has made a good case for the relief sought. Accordingly, I make the following order, that:-

1. The respondent, or any person possessing through him, shall, within 48 hours of service of this order, surrender to the applicant a motor vehicle, namely, a Ford Ranger 1800 registration number AAO 4838, failing which the Sheriff for Zimbabwe or his lawful deputy is hereby authorised and directed to take possession of the vehicle and hand it over to the applicant.

2. The respondent and all those claiming occupation through him shall vacate premises known as No. 1088 Fairview Crescent, Wiston Park, Marondera within two (2) days of service of this order failing which the Sheriff for Zimbabwe or his lawful deputy is hereby authorized and directed to evict them from the said premises and handover possession to the applicant.

3. The respondent shall bear the costs of suit.

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer. The fallacy in these latter arguments will become apparent shortly....,.

The crux of the matter before me was which of the two documents touted by the parties as the motor vehicle policy governed the applicant's employment at the relevant time?

Two other issues raised, somewhat belatedly, were;

(1) Whether or not the respondent had agreed to sell the motor vehicle to the applicant; and

(2) If it had, at what price?

I had no hesitation in dismissing the respondent's document. In my view, it was a clumsy counterfeit.

Both documents were fairly extensive and comprehensive. One remarkable thing about them was that the print, the font, the graphics, the design, the layout and virtually everything else, was identical. Even the wording was identical, except only in the one clause germane to the dispute. That was clause 11.0. In my view, that was where the respondent got caught out.

I shall demonstrate this.

The heading on the applicant's document, in upper case, was “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The respondent argued that this document had been amended or replaced in May 2011. Incidentally, the applicant had resigned from employment in June 2011. If the applicant's document had been amended or replaced in May 2011, one would reasonably expect the amending or replacement document to reflect the date of its own inception or, at least, to say something different somewhere. But except for clause 11.0, it did not.

The respondent's document was also headed, in identical font and case, “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The second part of the heading of the applicant's document read “AMENDMENT NO.1 OF JANUARY 2011”. The respondent's document was also headed “AMENDMENT NO.1 OF JANUARY 2011”.

How could both documents purport to be the same amending document and purport to be amending the same old policy?

But, that was not all.

On the applicant's document, after the headings, there followed some twelve main clauses, some with sub-clauses. These were spread over some nine pages, starting with clause 1.0 up to clause 12.0. The contentious clause, 11.0, headed “DISPOSAL”, was towards the bottom of page nine on the applicant's document. It was exactly the same on the respondent's document; the only difference being that in the case of the respondent's document, clause 11.0 occupied a slightly larger space, and, consequently, left not enough room for the next clause, namely, cause 12.0. Both documents indicated that they went up to page ten. However, page ten of the applicant's document was not attached. But this was immaterial. It was not even an issue. The dispute centred on clause 11.0.

I shall come to it in a moment. For now, I continue with my analysis of the other areas so as to place clause 11.0 in context.

Clause 1.1 on the applicant's document said; “This amended policy shall be effective from 1^st May of 2011 and its implementation will not be in retrospect.”

The corresponding clause on the respondent's document said exactly the same thing. On the foot of every page on the applicant's document were boxes with names and signatures of two of the respondent's officials who had prepared and approved the policy. In the boxes, apart from the names and the signatures, were three inscriptions stating that it was Motor Vehicle Policy No.1 of 2011, which was effective from 1 May 2011 and was replacing Policy No.1 of 2008. It was exactly the same thing on the respondent's document.

The respondent continued to argue that its document replaced the applicant's document in May 2011 but gave no exact date when this had been. I rejected that contention. It was manifestly untruthful. How could the respondent's document be effective from the same date as that of the applicant's?

The respondent accepted the applicant's document as genuine.

So, if the applicant's document had been first in time, as the respondent acknowledged, how then could its own document apply retrospectively given that clause 1.1 in both documents was against retrospective application?

The applicant maintained that the respondent's document was a fabrication. She said if at all it had been brought in at some stage, then it could only have been after her departure as nobody had brought it to her attention during her tenure.

That sounded plausible enough to me.

The next clause after clause 11.0 on the applicant's document was an incomplete clause 12.0 headed “EXISTING VEHICLES”. Its sub-clause [i.] was accommodated on the bottom of page nine. The whole of clause 12.0 on the respondent's document was on page ten. None of its sub-clauses could be accommodated on page nine. That was because on the respondent's document clause 11.0, the bone of contention, had some words altered, some added in, and a whole new sub-clause inserted. On the applicant's document clause 11.0 read as follows:

“11.0 DISPOSAL

(i) On the attainment of 120,000km mileage, comprised of monthly allowable business and private mileage or upon attaining of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may be offered to the employee for purchase.

(ii) An employee whose vehicle is being replaced will have the right of first refusal offer to purchase the vehicle at 10% of open market value or at book value, whichever is the lesser.”

On the other hand, clause 11.0 on the respondent's document read like this:

“11.0 DISPOSAL

(i) Upon the attainment of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may [author's emphasis] offered to the employee for purchase.

(ii.) The vehicle may be purchased at market value less 10% or depreciated net book value, whichever is the lesser.

(iii) The Group Chief Executive Office will approve the disposal of all company cars.”

It was not difficult to see that the new clause 11.0 in the respondent's document had far reaching changes which constituted a serious diminution of rights and benefits accorded to employees under the old policy. Demonstrably, those changes were meant to ward off the applicant's claim.

For example, and to begin with, the applicant's clause 11.0 only had two sub clauses. The respondent's had three. Next, the reference to a mileage of 120,000 kilometres in the applicant's document was completely scrapped off in the respondent's. It was common cause that the applicant's vehicle had clocked over 165,500 kilometres on the dash board. Furthermore, by highlighting, in the respondent's document, the word “may” in the obligation to offer the vehicle for sale, it was obviously meant to emphasize the discretion of the employer in that regard - that was the bulwark of the respondent's argument at the hearing.

However, and more importantly, the price at which the vehicle could be sold was increased phenomenally from 10% of the open market value to a market value less 10%. The whopping difference was dramatized by the figures that were disclosed in the papers. After some three valuations the vehicle's open market value had been agreed at $3,500. The applicant had tendered $315, being the 10% of the market value less another 10%. The respondent rejected that and demanded a purchase price of $3,150 which was the market value less the 10%. Finally, in the new document, the respondent's highest office would now have to be involved in the disposal of such vehicles, something that was not there in the applicant's document.

There was nothing to suggest that clause 11.0 in the respondent's document was a genuine amendment. Even if it was, there was nothing to show that it had been effected during the applicant's tenure of employment, or that it had been brought to her attention and that she had consented to it. What I found probable was that clause 11.0 in the respondent's document had been inserted after the fact. Therefore, that document was not the actual motor policy vehicle that was in place during the applicant's tenure of employment. It was partly for that reason that I found for the applicant.

But, there were other reasons.

As pointed out before, the respondent's argument was further developed to say that it had the sole discretion to sell or not to sell company vehicles to incumbent users and that it was not obliged, in terms of the motor policy, to sell to the applicant.

Predictably, the spotlight was on the word “may” to stress the discretion reposed in the respondent in that regard.

The respondent's argument was also developed to say that even if I found that it had agreed to sell to the applicant, the sale was not perfecta, allegedly because what the respondent had offered is not what the applicant had accepted. It was put this way in the respondent's heads of argument:

“6.2 Further, for a contract to be formed it is necessary that the offeree must, in agreeing, accept the exact terms offered by the offeror. Where the offeree makes a counter-offer or signifies a qualified acceptance of the offer, the offer is taken to have been refused and no contract is formed – see Orion Investments (Private) Limited v Ujaama (sic) Investments (Private) Limited 1987 (1) ZLR (sic).

6.3 The Applicant was made an offer to purchase the vehicle, the Applicant accepted an offer that was not made to her, and, as such, no contract came into existence.”

The fallacy in the respondents' two arguments above is exposed by the detail. It was abundantly clear from the motor vehicle policy that, among other things, the possession of a company vehicle for both business and private use for certain grades was an integral employment benefit. It was said company vehicles were provided for those grades as part of a competitive, market-related package to cater for the employees' specific operational needs so as to capture best and modern reward practices. Clause 3.1 was more succinct:

“3.1 There are two reasons why the Company issues motor vehicles to employees. The first is due to seniority of the employee, such as a manager, in order that he or she can undertake the work necessary at the level at which that person is employed and also as part of the remuneration package of that individual. These will be issued with Company cars.”

I am not suggesting for a moment that the right of an employee to a company vehicle entails the right to buy it. But, in this case, it was against the philosophy of the respondent on company vehicles, as set out above, that I had to consider clause 11.0. It was the clause that provided for the sale of company vehicles to incumbent holders. That philosophy was further elucidated in clause 4.3 as follows:

“4.3 A 'company car' is one allocated to an individual in recognition of one's managerial status. It is a benefit accruing to an individual as part of his or her conditions of service. The employee is entitled to use it for both company and personal business, subject to the provisions of this policy.”…,.

Thus, in a nutshell, and in my own words, at the respondent's company, company vehicles were a reward or benefit for certain senior grades. They were an integral part of the conditions of service.

The applicant had been employed by the respondent as Group Audit Manager. It was common cause that her grade entitled her to a company car. It was also common cause that for her grade, and, in particular, in terms of clause 11.0, she was entitled to expect the respondent to sell her the vehicle after it had clocked a mileage of 120,000 kilometres, or had reached the age of five years if it had been in use for not less than three years. The applicant was also entitled to expect that when the respondent offered her to purchase the vehicle the purchase price would be 10% of the market value.

In my view, such expectation could not be taken away unilaterally by the respondent. To take it away, as the respondent had purported to do with its document, would amount to an unlawful diminution of the applicant's conditions of service: see Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731; Dube v Chairman, Public Service Commission & Anor 1990 (2) ZLR 181 (H); Health Professions Council v McGowan 1994 (2) ZLR 392 (S); Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S); Taylor v Minister of Education & Anor 1996 (2) ZLR 772 (S); Kanonhuwa v Cotton Co. of Zimbabwe 1998 (1) ZLR 68 (H); and Air Zimbabwe (Pvt) Ltd v Zendera & Ors 2002 (1) ZLR 132 (S).

However, in the present case, my decision to grant the applicant the relief that she sought was predicated on a finding that not only had it been the position that the conditions precedent to the right or obligation to sell the vehicle had come to pass, which was common cause, but also that the respondent, as a matter of fact, had sold the vehicle to the applicant. In other words, contrary to the argument that the offer that the respondent had made was not the one the applicant had accepted, I found that there had been an acceptance of the terms offered and in the mode prescribed. The formula for arriving at the purchase price, namely, 10% of the market price, was known. It was common cause. That the respondent sought to clutter that position with irrelevancy, or that its own calculation of the actual amount payable in dollars and cents, was skewed, could not deprive the applicant of her right to buy the vehicle at 10% of the market price. This appears crisply from the relevant correspondence between the parties. On 30 June 2011 the applicant wrote to the respondent's Group Chief Executive Officer tendering her resignation from employment. She also applied, or offered to buy, the vehicle. The relevant portion of her letter was as follows:

“I am also in possession of two company assets, my company car which I have offered to buy as guided by the motor vehicle policy and your good office, and my laptop which I'd also be prepared to buy if the company allows.”

On 10 August 2011 the respondent's Group Chief Executive Officer responded as follows:

“Dear Gladys,

RE: PURCHASE OF COMPANY VEHICLE

Reference is made to our conversation regarding the above matter. We have taken due consideration to your request to purchase certain company assets allocated to you during your employment with us. We are pleased to inform you that, in terms of the PGIZ Motor Vehicle Policy, you may purchase the motor vehicle that is currently in your possession for 10% of market value less 10% or at Net Book Value, whichever is he (sic) lesser. In your case, the average market value for the vehicle, Mazda Familiar (sic) Registration Number AAM 7769, is $3,500 while the depreciated net book value is $3,990. Therefore, in line with the new vehicle policy above, you may purchase the vehicle for $3,150. Please note that you are required to pay this purchase price in full at the time of your departure. However, your offer to purchase the laptop computer allocated to you for work purposes has not been accepted. It will be re-allocated to another member of staff in the Department.”…,.

There can be no question that the respondent, through its Group Chief Executive Officer, had offered to sell the vehicle to the applicant.

The method of fixing the purchase price had all been set out in the policy in advance. Therefore, once the market price had been established it was all rather superfluous for the respondent's Group Chief Executive Officer to have gone to mention the actual figure. Unfortunately, he got entangled in the process. But he had correctly recited the formula, namely, 10% of the market price. But his mind had undoubtedly been clouded by the illegitimate new clause 11.0. He had also purported to recite the new illegitimate formula, namely, the market price less 10%, and to fix an amount on that basis.

That was wrong. The applicant was not bound by that.

There was no question of the applicant having accepted terms that were different from those of the offer, or of her having made a counter offer, as argued by the respondent. The material portion of her letter of response, on 16 August 2011, was as follows:

“Dear Mr. H. M. Munyati

RE: Purchase of Mazda 323 Familia Registration Number AAM 7769

Reference is made to your letter dated 10 August 2011, reference number HM/CM10082011 regarding the above matter. With reference to paragraph 2, lines 2 to line 4 where you state; 'We are pleased to inform you that in terms of the PGIZ Motor Vehicle Policy, you may purchase the motor vehicle that is currently in your possession for 10% of market value less 10%…,' I have accepted this offer and have paid the sum in full into the PG Stanbic account number 0222020998050 as per your instructions in paragraph 3 where you say the purchase price is to be paid in full at the time of my departure. Copies of deposit slip number 522141 and cash deposit advice number 1879264 are attached…,.”

The applicant then went on to tabulate and show that 10% of US$3,500 would be US$350 and that 10% less of that amount would be US$35. She had then gone on to deduct the US$35 from the US$350 to remain with a net figure of US$315. That is what she said she had deposited into the respondent's Bank account. The applicant concluded her letter by requesting the respondent to facilitate the change of ownership of the vehicle into her name.

The respondent stated that where a mode of communication of the acceptance of an offer is prescribed, the offeree is bound to accept in the mode so prescribed.

To me, that is what the applicant did.

The respondent had directed her to pay the purchase price in full at the time of her departure. Of course, to the respondent that amount was US$3,150 not US$315. But, I have already shown that the Chief Executive Officer had been mistaken or wrong on that score. However, the applicant having correctly adverted to the correct formula for arriving at the purchase price, as set out in the genuine motor vehicle policy, was, in my view, and with all due respect to her, mischievous in going further to deduct US$35 from the US$350. It was plainly a typing error by the respondent's Chief Executive Officer to have said, in his letter of 10 August 2011 “…, for 10% of market value less 10% or…,.” The applicant could not reasonably have understood that as anything else other than a patent mistake. Such a formula was not provided for anywhere else. The applicant could not seek to bind the respondent to such a mistake, which was, in the scheme of things, manifestly harmless.

It was on the basis of the foregoing reasons that I granted the relief sought.