OPPOSED APPLICATION
MAKARAU JP: The respondent
was employed by the applicant as its Finance Manager up to July 2009
when allegations of misconduct were leveled 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
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 certain of its assets
that were in the possession of the respondent, being assets that the
applicant had put into his possession in fulfillment 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 his heads of argument, the respondent argued in limine that this
court has no jurisdiction to determine the matter, exclusive
jurisdiction in the matter having been reposed in the Labour Court by
the provisions of section 89 of the Labour Act [Chapter 28.01] (“the
Act”).
In my view, two issues arise:
(i) Firstly, I have to determine whether this court has jurisdiction
over the dispute between the parties.
(ii) 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.
The issue of when the
jurisdiction of this court is ousted by the provisions of the Act has
been before this court in a number of cases before. (See
National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and
Others SC8/05 and Tuso v City of Harare
2004 (1) ZLR 1 (HC).
In my view, I think the position is now settled that a dispute falls
to be determined exclusively by the Labour Court if such arises from
a cause of action that has been specifically provided for in the Act
and for which a remedy is also provided for in the Act.
Section 89(1)(a) of the Act provides that:
“(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)………………………..;
and
(c)………………………..;
and
(d)………………………….;
and
(e)………………………….”
(The other paragraphs are inapplicable in this matter).
Section 89(6) then proceeds to provide 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).”
The literal and grammatical meaning of the two sections read together
have been held in the cases that I have referred to above to mean
that if the dispute is provided for in the Act both in terms of cause
of action and remedy or remedies, then the Labour Court has exclusive
jurisdiction over the dispute.
In casu,
it has been argued on behalf of the applicant that the applicant has
brought a common law vindicatory claim against the respondent in
which it seeks to recover its motor vehicle from the respondent.
In this regard, the applicant is relying on the common law cause of
action that allows an owner to vindicate its property from whosoever
is in unlawful possession of same and therefore the dispute falls
outside the purview of the Labour Court which cannot determine common
law causes of action.
As a general statement, it is correct that that the Labour Court has
no jurisdiction to entertain claims that are brought at common law.
It can only determine applications and appeals among others that are
brought in terms of the Act.
Where, however, a dispute can either found a cause of action at
common law and/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 be easily
resolved by paying regard to the overall intention of the Legislature
in creating the Labour Court.
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 is 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.
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 exhaustively dealing with the termination of the
employment of that employee.
I have had occasion to consider a
similar question in Zimtrade
v Makaya 2005 (1)
ZLR 427 (H).
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 form
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 interdependently 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 appears to me legally untenable and in any event,
highly undesirable.
In the arguments that have been
made on behalf of the applicant, I find nothing that persuades me to
move me from the views I expressed in the Zimtrade
case.
On the basis of the above, I would hold that this court has no
jurisdiction in the above matter.
Assuming that I have erred in holding that this court has no
jurisdiction in this matter, I still would have dismissed the
application at common law.
Vindication is a remedy that is available to an owner against the
world at large. By reason of his or her rights of ownership, an owner
is competent at law to demand possession of his or her property from
anyone who cannot invoke a right against him or her to keep the
property.
For one to succeed in such an
action, one must allege and prove that they are the owners of the
property in question and that the respondent or defendant is in
possession of the property. (See Van
der Merwe and Another v Taylor N.O. and Others
2008 (1) SA 1 CC).
Whilst it is not necessary for
the owner to allege that that the possession of the
respondent/defendant is unlawful for them to establish a valid cause
of action, such considerations come into play when the court is
determining the application. The right of the owner to possess his
property is not absolute and may be subject to some other right that
the possessor may have against the owner. (See
Chetty v Naidoo 1974 (3) SA 13 [AD]; Hefer v Van Greuning 1979 (4) SA
952 (A) and Van der Merwe and Another v Taylor N.O. and Others
(supra)).
Mr
Kadzere for the
applicant submitted, and correctly so in my view, that the onus rests
with the respondent to prove the right to possess the motor vehicle
against the owner.
It appears to me that in casu,
the right of the applicant to possess is the motor vehicle is subject
to the rights that the respondent has to the vehicle in terms of his
employment with the applicant.
Whilst the applicant has deposed to the fact that the respondent has
been dismissed from employment, that dismissal is subject to appeal.
It is still in dispute and so are the entitlements of the respondent
under the contract of employment.
In contrast, I may at this stage
mention that on the same day that I heard argument in this matter, I
also heard argument in the matter of the matter of Medical
Investments Limited v Rumbidzayi Pedzisai
HH 26/2010 wherein I found that the applicant in that case was
entitled to vindicate its vehicle from the respondent, a former
employee, as the employer-employee relationship between the parties
had terminated on account of the resignation of the respondent.
In that matter, the status of the former employee as such was not in
doubt.
In casu,
it appears to me that the status of the respondent has not been
finally determined as it is pending the appeal before the Labour
Court. As such, the facts of this matter are distinguishable from
that of the Medical
Investments Limited
case.
On the basis of the foregoing, even if this court had jurisdiction to
determine this dispute at common law, I would have found that the
respondent has successfully discharged the onus on him to prove the
right to possess the motor vehicle against the applicant, pending
determination of the appeal that is pending in the Labour Court.
Finally, Mr
Kadzere has further
submitted that in view of the provisions of section 92E of the Act,
the respondent stands dismissed from employment as the noting of an
appeal to the Labour Court does not suspend the decision appealed
against.
Again, Mr
Kadzere is correct.
Sections 92E of the Act provides:
“(1)
An appeal in terms of this Act may address the merits of the
determination or decision appealed against.
(2) An appeal in terms of
subsection (1) shall not have the effect of suspending the
determination or decision appealed against.
(3) Pending the determination
of an appeal the Labour Court may make such interim determination in
the matter as the justice of the case requires.”
In my view, the amendment to the law in 2005 to provide that appeals
to the Labour Court would not suspend the decision appealed against
was clearly meant to vary the common law position that was prevailing
prior to the amendment.
That for the purposes of the Act the employee is regarded as
dismissed pending the determination of the appeal appears to me to be
beyond dispute.
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.
While 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 dependant upon whether or not the
dispute between the parties has been definitively resolved.
In this instance, the dispute between the parties is pending before
the Labour Court and resultantly, the claim of right remains alive.
On the basis of the above, assuming that this court had jurisdiction
in the matter, I would have dismissed the application on the basis
that it is premature.
The respondent has a claim of right to the motor vehicle that can
only be determined upon after the appeal before the Labour Court has
been finalized. To approach this court before the hearing of the
appeal is incompetent as the relationship upon which the applicant
allowed the respondent possession of the vehicle has not been
definitively determined upon.
It is however my finding, as detailed above, that this court has no
jurisdiction in this matter.
In the result, I make the following order.
The application is dismissed.
Gill Godlonton & Gerrans,
applicant's legal practitioners
