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. 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.
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 id 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.
