MTSHIYA J: This
is an opposed application wherein the applicant seeks the following
relief:
“1.
Respondent shall within two hours of the service of this order on him
restore the following property to the applicant;
(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;
(b) Laptop HP Compaq 6720;
(c) Cellphone Samsung D880;
2. The cost of this application shall be borne by the respondent”.
The relief sought arises from the fact that upon termination of
employment the respondent retained the applicant's property which
is being claimed in the relief quoted above.
It is common cause that prior to 18 September 2009 the respondent was
employed by the applicant as its Health Services Manager. The
respondent's employment was terminated on grounds of ill-health
through an internal memorandum dated 18 September 2009. The
memorandum reads as follows:
“I
acknowledge receipt of your memo dated 15 September 2009 including
medical reports from your doctor (Mr Macheka) and some clinical
psychologist (Mr Broomberg).
The letter from Mr Macheka is very clear in stating that your
ill-health is such that you will not be able to resume your job after
the legally stipulated one hundred and eighty days. Mr Macheka states
clearly, in reference to yourself that:
'he needs
more time off work for a full resolution of his injuries though at
this point one cannot state a definite time-frame and will depend on
future reviews and assessment in 2 months time'
You have now
exceeded your maximum sick leave in one year period of service (that
is, from 11 March 2009 to 14 September 2009). It leaves the company
with very little option, therefore, than to terminate your contract
of employment forthwith (that is, with effect from 18 September 2009)
in accordance with section 14(4) of the Labour Act [Cap
28:01].
Please note that due to your failure to obtain your doctor's
certificate by 17 July 2009 as had been instructed and as re-iterated
in previous communication to you, you have forfeited your chance of
being terminated through the company's medical boarding process.
Your are thus instructed to surrender all company assets in your
possession to the General Manager Shurugwi not later than close of
day on Monday 21 September 2009. For avoidance of doubt the said
assets include the company PAV, laptop, cellphone and line. Failure
to surrender the said company assets will result in the company
instituting any legal process necessary to recover any such assets.
Your terminal benefits, which include any outstanding salary and
leave days up to 18/09/09 will be deposited into your account
provided an exit form has been duly completed clearing you of any
outstanding liabilities to the company. Your pension benefits from
both the Zimasco Pension Fund and NSSA will be processed in the
normal manner”.
Paragraph 6 of the above memorandum refers to the property that the
applicant wants the respondent to return to it.
The respondent admits that the property belongs to the applicant but
refuses to release the property on the ground of unfair dismissal.
In his opposing affidavit the respondent states as follows:
“1. I wish
to raise a point in-limine.
It is common cause that on 9 October 2009, I instituted proceedings
in the Labour Court challenging applicant's decision to terminate
my employment contract summarily, see copy of proof of service and
copy of the application of review and appeal attached hereto marked
annexures (A), (B) and (C).
2. It is common cause that those proceedings are still pending and
have not been disposed of.
3. There is, accordingly, a litigation pending between the parties on
the same cause of action and in respect of the same subject matter in
the Labour Court and this honourable court should decline to exercise
its jurisdiction as this is purely a labour matter which should be
dealt with and has been properly placed before the Labour Court”.
The respondent further declares:
“I will
state that I am in possession of the items pending the settlement of
the matter as stated in above Ad Para 3”.
The respondent therefore urged the court to dismiss the application.
In his submissions, Mr Ncube, for the applicant, stated that the
applicant had satisfied the requirements for an action for
vindication. This, he said, was largely so because the applicant
himself admitted that the assets he was in possession of belonged to
the applicant.
It was
submitted that, notwithstanding the provision of section 89(6) of the
Labour Act [Cap
28:08]
(“the Act”), there was no pending matter in the Labour Court
relating to an employment dispute between the applicant and the
respondent. That being the case, it was argued, the respondent's
plea of lis
alibi pendens
was misplaced.
The undisputed fact was that the applicant's application was filed
on 8 October 2009 while the respondent's review application/appeal
in the labour Court was filed on 9 October 2009.
It was therefore the applicant's contention that for the special
plea to apply there must have been an appeal/application already
pending in the Labour Court.
It was further
stated that even if such an appeal/application were pending, the
court had a discretion to order or refuse a stay of proceedings on
the grounds of lis
alibi pendens.
In the exercise of that discretion the court would have regard to the
equities and the balance of convenience in the matter.
In casu
the applicant's argument was that, with the respondent's contract
of employment having terminated on 18 September 2009, it wanted its
assets restored for the advancement of its business activities. The
respondent had no right to hold onto the assets.
It was further
submitted that the subsequent action placed before the Labour Court
by the respondent was based on an allegation of an unfair labour
practice on the part of the applicant. However, in
casu
the applicant was seeking relief based on actio
rei vindication.
The matters before the courts, according to the applicant, were
therefore not based on the same subject matter.
That being the case and based on its 'full original civil
jurisdiction over all persons and over all matters within Zimbabwe',
it was argued, this court had jurisdiction to entertain the
application unless that jurisdiction is clearly ousted in terms of
legislation.
The Labour Court, it was argued, as a special court, only dealt with
matters provided for in the Act.
There was no provision for an application for vindication in the Act.
This court therefore had the jurisdiction to deal with such an
application, it was submitted.
In his supplementary Heads of Argument filed on his behalf by Messrs
Chikumbirike and Associates the respondent argued as follows:
“1.1. The
applicant, through this application, seeks the restoration of certain
property that is in the respondent's possession consequent upon the
employment relationship that subsists between the parties.
1.2. It is common cause that there is an ongoing labour dispute
between the parties herein, in which the respondent has made an
application, to the Labour Court, for a determination of his
dismissal as having been unfair.
1.3. It is also common cause that the application made by the
respondent in the Labour Court, falls within the ambit of the
provisions of section 89(1) of the Labour Act, more particularly
section 89(1)(a).
1.4. It also follows therefore, that the provisions of section 89(6),
quoted above, apply to this matter. While the application made herein
is one for the restoration of the assets in the respondent's
possession as a consequence of his employment, that issue cannot be
related to in isolation from the main application made by the
respondent in the Labour Court, which application has the potential
of disposing of the whole issue once and for all.
1.5.………..”
Relying on
Zimtrade
v Malord Makaya
HH52/2005,
the respondent submitted that the restoration of the applicant's
property could not be separated from the determination of the labour
dispute.
The matter, it was argued, fell within the provisions of section 89
of the Act which gives the Labour Court powers to hear and determine
issues in labour disputes in the first instance.
In support of
his case, the respondent quoted from Zimtrade
(supra) where MAKARAU J, as she then was, said:
“Notwithstanding
the arguments advanced by Mr Dondo, I am of the opinion that matters
relating to suspension from employment, with or without salary and
matters relating to dismissals are specifically within the purview of
the Labour Court as these are matters that are provided for in the
Act and the regulations made there under. There is adequate provision
under the Act for setting up machinery to resolve such disputes.
Thus,
following my reasoning in the SIBANDA
matter, the jurisdiction of this court is specifically ousted in
respect of matters of dismissals and suspensions as these are
specifically provided for the Act”.
(Emphasis added).
The respondent
went further to state that the same principles alluded to in the
Zimtrade case (supra)
had been given the same force in T.O.
Nyandoro v Cimas Medical Aid Society
HC6652/08 where MAKARAU JP, as she then was, again said:
“I have had
occasion to comment on the jurisdiction of this and the Labour Court
in MARTIN
SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH131/04.
In
that matter, I came to the conclusion that section 89(6) of the Act
takes away the jurisdiction of this and other courts in the first
instance in all matters where the Labour Court has been specifically
granted jurisdiction.
The meaning that I gave to the section in that judgment was that
whatever the Labour Court was specifically empowered to do, it would
do exclusively. I remain of the same opinion”. (Emphasis added)
I now shall
deal first with the issue of lis
alibi pendens
(the special plea).
Section 124 of the Act provides as follows:
“(1) Where
any proceedings in respect of any matter have been instituted,
completed or determined in terms of this Act, no person who is aware
thereof shall institute or cause to be instituted, or shall continue
any other proceedings, in respect of the same or any related matter,
without first advising the authority, court or tribunal which is
responsible for or concerned with the second-mentioned proceedings of
the fact of the earlier proceedings.
(2)…….”
The above
provision of the law does not apply to the applicant because the
proceedings were not in terms of the Act (i.e. action
rei vindication).
This is so also mainly because at the time of instituting these
proceedings the applicant was not aware of any proceedings anywhere
'in respect of the same or any related matter'.
Even if the applicant might have been aware, the above law did not
place an obligation on him as indicated in the relevant section
because this action was not brought in terms of the Act.
In the main, however, what comes out clearly is that there was no
pending action/application in the Labour Court relating to the same
matter at the time this application was filed on 8 October 2009.
The alleged pending matter was only filed on 9 October 2009,
presumably as a reaction to this application.
I fully agree with the applicant that for the special plea to succeed
the respondent must prove the following:
“4.1. That
the action is already
pending between the parties;
4.2 That the plaintiff has brought another action against the same
defendant.
4.3 The action is based on the same cause of action and in respect of
the same subject matter”.
The subject
matter in the subsequent action/application in the Labour Court is
unfair dismissal or labour practice whereas in
casu
the application is for vindication.
There was therefore no pending matter as submitted and therefore the
special plea cannot stand.
I now come to the issue of jurisdiction.
In casu
the argument to deny this court jurisdiction
is
largely based on the provision of section 89(6) of the Act which
provides as follows:
“(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 subs (1).”
It is not in dispute that this application is for vindication and is
therefore not in terms of the Act. However, the respondent argues
that the property in question, having come into his possession
through his employment by the applicant, that property cannot be
separated from a dispute that relates to his employment.
The property formed party of his conditions of service as per the
contract of employment.
Indeed in his
points in
limine,
the respondent states as follows:
“1.
Respondent will argue that the determination of this has a direct and
substantial effect on the outcome of the matter pending in the Labour
Court in that the outcome of the matter in the Labour Court will
resole the validity of the termination of the employment contract in
terms of which the respondent acquired permission of the assets
concerned.
Put
differently, if the High Court were to rule in favour of the
applicant it would have in essence accepted as fact that the
respondent's contract of employment was validly terminated by the
applicant, yet that
issue is not before the High Court.
Significantly, the High Court will have usurped the powers of the
Labour Court to determine the validity of the respondent's
employment contract”.
The respondent goes on to state as follows:
“Respondent
admits that applicant is the owner of the assets and that respondent
is in possession of the assets.
Respondent will argue that he is in possession of the assets in terms
of an employment contract entered into between the parties. A copy of
the contract is attached.
Respondent will further argue that the said contract of employment
was unlawfully and summarily terminated by applicant by letter dated
18 September 2009. A copy of the letter is attached”.
A reading of the offer letter of employment will show that clause 20
thereof provides as follows:
“You will be
entitled to purchase a Company vehicle of your choice up to a certain
value limit. Should you wish to procure a vehicle with a cost price
in access of this limit, this will be approved, provided that the
extra sum is paid in cash by yourself at the time of purchase.
All fuel and maintenance costs will be for your account, and your
basic salary does include an allowance for fuel for business travel
in and around Shurugwi/Gweru.
Your will be entitled to claim for any other prior approved business
travel at A.A. Rate, less the portion of the rate for Insurance and
Licensing.
Full details of the scheme will be available after acceptance of this
employment opportunity.”
The foregoing clearly shows that the vehicle belonged to the
applicant and in his heads of argument the respondent states as
follows:
“Respondent
admits that the applicant is the owner of the assets and that the
respondent is in possession of the assets”.
In para 4.2. of his opposing affidavit the respondent also states
that:
“I will
state that I am in possession of the items pending the settlement or
the matter as stated in above AD Para 3”. (AD Para 3 refers to the
settlement of the labour dispute in the Labour Court)
Furthermore, in item 13 of Annexure J of his opposing affidavit the
respondent states as follows:
“1. Under
the contract I was employed, I have first option to purchase my PAV
at book value. The policy was revised downwards and therefore should
not affect me but new employees.
2. The vehicle which I am holding now, namely a Mitsubishi Pajero AAV
5956 is subject to that condition”.
The above is also alluded to in item 10 of the same annexure where
the respondent says:
“Re-imbursement
for use of own car after amortizing my last vls (An Isuzu KB 320)
Basis of Claim
1. Some years ago the vehicle policy was changed from a loan scheme
to a company vehicle scheme because of
increased maintenance costs.
2. One of the
clauses was that 'employee
on the current loan scheme may at any time amortise their loan and
get onto he new company car scheme'.
3. I amortised my loan in terms of that policy and procedure.
4. The policy and procedure was immediately that afternoon changed to
read that you needed approval of your general manager to amortize.
This was AFTER I had amortized.
5. Despite
this I was penalized and went
for 18 months without a company vehicle as required by my contract of
employment. I also did not receive any compensation from the company
for the use of my own vehicle for the period.
6. I calculated the financial loss for the period to be USD14,790 at
prevailing exchange rates.”
The same issue of the vehicle is captured in his affidavit to the
police, which affidavit is annexure 'B' to the applicant's
founding affidavit. In paras 3-13 the respondent states as follows:
“1.……….
2.……….
3. I am in possession of a Mitsubishi Pajero Reg. Number AAV 5956
registered in the name of Zimasco. I am in
possession of a laptop computer belonging to
Zimasco.
4. I have a
cellphone line 0912286646 issued to me by Zimasco.
5………..
6. Zimasco officically allocated the vehicle to me.
7. The above
goods are subject of a labour dispute, which is still in process.
8. Zimasco in
turn owes me a lot of money, which is subject of determination in the
same labour dispute.
9. IT IS
CATEGORICALLY NOT TRUE THAT THERE IS ANY THEFT INVOLVED.
10. I HAVE NOT
STOLEN THE VEHICLE FROM ZIMASCO ANY MORE THAN ZIMASCO STOLE THE MONEY
THEY OWE ME FROM ME.
11. I HAVE NO
INTENTION OF KEEPING THE VEHICLE ANY LONGER THAN BEYOND THE LEGAL
DETERMINATION OF THE MATTER.
12. I AM
MERELY KEEPING THE ITEMS IN SAFE CUSTODY AS ZIMASCO IS ALSO KEEPING
IN SAFE CUSTODY WHAT I BELIEVE OWE ME.
13. THIS IS A
PURELY CIVIL DISPUTE MATTER SUBJECT TO DETERMINATION BY THE JUDICIARY
PROCESS OF THE REPUBLIC OF ZIMBABWE.”
From the foregoing I am informed that there is indeed a labour
dispute still raging in the Labour Court.
That fact is not disputed by the applicant.
The respondent's position is that once that labour dispute is
resolved he will surrender the applicant's assets, if need be.
I say 'if need be' because the Labour Court's decision is not
yet known.
However, if the Labour Court were to rule in his favour, the
withdrawal of the assets from him at this stage would lead to serious
prejudice on his part, which prejudice the applicant cannot easily
compensate him for i.e loss of use of motor vehicle for the period
prior to the Labour Court's determination.
I hold the
view that the total cost to the employer of retaining an employee
includes the employee's salary and all
benefits.
I would,
therefore, on that basis, find it untenable, in
casu,
to remove the assets in question from the respondent's disputed
contract of employment.
The employer's obligation to meet total costs of retaining an
employee only vanishe when employment is finally terminated.
The labour dispute now before the Labour Court is based a contract of
employment.
The assets in
casu
clearly
form part of the respondent's conditions of service (in particular
the vehicle).
In any case, the respondent is at liberty to apply to the Labour
Court for the continued enjoyment of his full employment benefits
until that court makes a final determination on the issue of his
dismissal. It would therefore be premature to remove from him the
assets that are linked to the labour dispute that he has placed
before the Labour Court.
To that end, I
am unable to distinguish this matter from the Zimtrade case (supra)
where
MAKARAU J, as she then was, ruled that in certain circumstances “an
employee can always raise the defence of a claim of right to possess
the property of an employer until he or she is effectively and
lawfully disentitled to the property”.
We have in
casu
a
situation where the respondent is saying:
“I was
unlawfully dismissed and before the unlawful dismissal I was entitled
to the use of the assets which are the subject matter of this
application. My case is now before the Labour Court where I am
demanding my employment back together with all benefits attaching to
my employment”.
The applicant
has drawn my attention to the case of Unimark
Distributors (Pvt) Ltd v ERF 94, Silvertondale (Pvt) Ltd
1999 (2) SA 986 @ 9966 where the following appears:
“But there
can be little doubt that on of its incidents (dominium) is the right
of exclusive possession of the res,
with the necessary corollary that the owner may claim his property
wherever found from whosoever holding it. It is inherent in the
nature of ownership that possession of the res should be normally be
with the owner and it follows that no other person may withhold it
from the owner unless he is vested with some rights enforceable
against the owner, e.g. right of retention or a contractual right”.
I agree with the above.
I am, in
casu,
of the view that the respondent's disputed contract of employment
gives him the right to hold onto the assets until the Labour Court
declares that he does not enjoy such a right.
The respondent is not merely saying: “I am holding onto the assets
because you owe me money”.
A reading of his affidavit to the police might paint that picture.
However, the issue goes beyond that. He is actually saying:
“I have a
contractual interest in these assets as they form part of my
conditions of employment. I shall only release the assets when the
Labour Court confirms my dismissal”.
I further believe that it is the Labour Court that shall determine
whether or not the changed policy relating to vehicles applied to the
respondent as alleged by him in his papers.
That being the respondent's argument, the issue of a lien does not
arise.
My view is
that section 89(6), as quoted in this judgment, clearly gives
exclusive jurisdiction to the Labour Court in all labour disputes.
Given the wording of that section, I do not see how any other court
can seek to place itself as a court of first instance in any labour
dispute.
Admittedly parties retain the right to follow the arbitration route.
Notwithstanding its inherent jurisdiction, I think this court should
go a long way to give effect to the legislature's intentions in
creating a special court to deal with all labour disputes in the
country.
Clearly, in
terms of section 89(6) of the Act, the power to hear and resolve the
labour dispute between the parties in
casu
resides in the Labour Court.
Indeed, as I have already said, an attempt by any other court, at
this stage, to deal with any aspect of the dispute, would certainly
amount to interference with the special functions bestowed on the
Labour Court by the legislature.
That is the
reason why the legislature was quite specific as to clearly state
that 'No
court
other than the Labour Court'
would have jurisdiction in the first instance to hear and determine
matters of this nature.
This is a case of dismissal from employment and therefore a labour
dispute.
I therefore believe that once any other court is satisfied, in a
matter placed before it, that the issues for determination therein
are entirely anchored on a labour dispute, then such court should
immediately refer the matter to the special court, namely the Labour
Court.
Such a move, would, in my view, be in line with the intentions of the
legislature as spelt out in the Act.
I therefore find merit in the respondent's opposition to this
application. The application cannot therefore succeed.
I accordingly order as follows:
1. The application be and is hereby dismissed.
2. The applicant shall pay costs of suit.
Gill, Godlonton &
Gerrans, applicant's
legal practitioners
Chikumbirike &
Associates, respondent's legal
practitioners
