ZIYAMBI JA: 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 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:-
- That the respondent be and is hereby ordered to
surrender possession of and to return to applicant the motor vehicle
namely a BMW X5registration 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.
- 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:
- That the motor vehicle namely a BMW X5registration
number AAX 8022 be and is hereby placed judicial attachment.
- 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.
- 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.
- 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, firstly, that the High Court had no
jurisdiction to entertain the matter; and, 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 Mr Venturas
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 s 89(6) of the Labour Act [Cap 28:01]
(“the Act”) 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[1].
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.
Mr Uriri contended, however,
that this was not one of the matters over which the Labour Court could exercise
jurisdiction in terms of s 89 of the Act 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[2]
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[3]:
“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 s 89(6) of the Act, which must be read with
s89(1), clearly shows that s 89(1)(a) 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 s89 of the Act. Sections
89(1) & (6) are set out hereunder:
“89 Functions, powers and
jurisdiction of the Labour Court
(1) The Labour Court shall exercise
the following functions—
- hearing and determining applications and appeals in
terms of this Act or any other enactment; and
- hearing and determining matters referred to it by the
Minister in terms of this Act; and
- 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;
- 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 s 89(6) 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 Act are clearly set out in
the Act and need no further elaboration. Reference was made, among
others, to the applications referred to in ss 92C and 93(7) of the Act[4].
These are applications in terms of the Act 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 s 89 1 (a) of the Act, has not
been abrogated. Nothing in s 89(6) 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 s 89 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.
In any event, as the court a quo
found, by consenting to the provisional order, the appellant had acquiesced in
the jurisdiction of the High Court to grant it. The appeal on this ground
therefore fails.
THE CLAIM OF RIGHT
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 any one 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.
In the present case, the respondent
raised a claim of right. It was based on the company's motor vehicle
policy scheme for its employees clause 5.2 of which provides:
“The vehicle will be replaced on
completion of four years of purchase.”
And clause 6:1
Disposal
6.1. All matters of vehicle disposal
shall be administered by the group Human Resources.
6.2. The vehicle user will be given
the first option to purchase the vehicle on disposal time. Purchase price
will be set by the Executive committee reviewed as necessary…”
It is common cause that in 2011, the
vehicle had reached “completion of four years of purchase” and that the
appellant was dismissed in 2012. However, by the time of his dismissal,
the respondent had neither made a decision to dispose of the vehicle nor
offered the vehicle for sale to the appellant. The ownership of the
vehicle, therefore, remained vested in the respondent. Upon his
dismissal, which was not suspended by the appeal noted against it[5],
the appellant ceased to be an employee of the respondent and any former right
acquired, by virtue of his employment, to possession of the vehicle for his
use, also ceased.
It may be mentioned here that in
most cases the option granted by an employer to purchase a used company car is
a privilege accorded to its employees perhaps in the hope that this will induce
loyal service as well as a culture of caring for the company property or some
other reason beneficial to the employer/company. Therefore, unless the
contract specifically states so, a court ought to be careful not to read a
legal right into a policy matter which is for the discretion of the
employer. In my judgment the question of a right to purchase could only
arise after an offer had been made to, and accepted by, the employee to
purchase the vehicle and not before.
As matters now stand, no offer has
been made to the appellant by the respondent employer. The terms of the
purchase have not been set. The appellant has no sale agreement on which
to found his alleged right to purchase. He is not entitled to hold onto
the vehicle pending agreement. As it was put by MAKARAU JP (as she then
was) in Medical Investments Limited v Pedzisayi HH 26/2010:
“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”.
The appellant's further claim that
he had a legitimate expectation to purchase the vehicle is, in my view, also
without merit. It seems to me that whatever expectation he had to purchase the
vehicle is merely that - an expectation. It has no legal basis. It
is not justiciable. It cannot be converted into a claim of right.
In conclusion, I would respectfully
adopt the remarks by MTSHIYA J in FBC Bank Limited v Energy Deshe[6]
that:
“… employers deserve the protection
of the law from employees who ….. take the law into their own hands as
demonstrated by the respondent in casu.”
In the result, no claim of right
having been established, the court a quo was correct in dismissing the
application.
The appeal is therefore dismissed with costs.
GWAUNZA
JA:
I agree
PATEL JA:
I agree
Kantor & Immerman, applicant's legal practitioners
Venturas & Samukange, respondent's legal practitioners
[1] Counsel relied on DHL International (Pvt) Ltd v Madzikanda
2010 (!) ZLR 201. See also Zimtrade v Makaya 2005 (1)ZLR 427 (H)
[2] 1928 AD 286 at 290
[3] 1923 AD281 at 304
[4] See also National Railways of Zimbabwe v Zimbabwe Railways
Artisans Union & Others SC 8/05
[5] Labour Act [Chapter 28:01] s92E (2)
[6]HH285/11
