The applicant brings an application to compel the return of his biscuit-making equipment which is in the possession of the first and second respondents.

The applicant's case is based on the following facts.

He owns the biscuit making equipment. The applicant was in the business of biscuit-making with the third respondent. When production was shelved for a while, in February 2016, the third respondent offered to store it at an acquaintance's, namely, the second respondent. He understood that the storage was going to be free of charge.

The first respondent is the owner of the premises where the equipment is being kept.

He was unaware of the rental arrangement. When the applicant asked for his equipment, from the second respondent, he was advised that she was also renting the space the equipment was stored in from the first respondent and that he owed the first respondent rentals for the storage. She asked him to pay rentals for the storage of the equipment to the first respondent for the period the equipment was stored at the premises. The first respondent has refused to hand over the equipment. The applicant contends that he is not privy to the lease agreement entered into between the first and second respondents and no lien applies to him. The claim for arrear rentals should be made against the third respondent.

He brings a claim for vindication of the equipment.

The second respondent submitted as follows.

There is no evidence that the applicant is the owner of the property in dispute. In February 2016, the third respondent requested her to keep the equipment and he would come and collect it later. The whole complex where the equipment is stored belongs to the first respondent. The complex is divided into several bays which the first respondent leases out. She leases Bay No.2. The equipment is stored in that bay. She sub-leased part of Bay No.2, which she leased from the first respondent, to him at a rental. Storage fees were agreed to and the applicant was later made aware of the fees. The applicant gave his permission to the third respondent to store the property at her bay. She is owed arrear rentals and hence has a landlord's lien over the equipment. She has a right to possession by virtue of a verbal sublease agreement she entered into with the third respondent which agreement still subsists. She is owed arrears of $2,700=. The equipment continues to accrue holding over damages. The applicant may not remove her equipment from Bay No.2 until she pays arrear rentals owing to the first respondent. She is not using the equipment as it is obsolete and she has no use for the equipment.

The first respondent submitted that he is not aware of the arrangement between the second and third respondents concerning the equipment and how it came to be on the premises. He wants the first respondent to pay arrear rentals outstanding.

The third defendant was barred.

It is common cause that the third defendant took the equipment for storage with the second defendant who leases the premises. The dispute is over the arrangement involving the storage of the equipment and whether the applicant is entitled to demand possession of the equipment from the respondents.

An owner of property is entitled to vindicate his property from whoever possesses it without his consent. See Chetty v Naidoo 1971 (3) SA 13.

In Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 the court dealt with the subject of onus in a rei vindicatory action and remarked as follows;

“The owner may claim his property whatever found from whosoever is holding 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. In instituting a rei vindication he need therefore do no more than allege, and prove, that he is the owner and that the defendant is holding the res…,.”

An applicant who seeks to vindicate his property should prove the following;

(a) He is the owner of the property;

(b) That the property is in the possession of another person; and

(c) That he possesses it without his consent.

An owner of property has exclusive rights to the property. He has a right to reclaim his property from any person who wrongfully withholds it.

Once an applicant has proved the requirements of a rei vindicatio, the onus shifts onto the respondent to justify his right of retention.

The second respondent relies on a lease agreement entered between her and the third respondent to continue holding onto the equipment. She contends that she has a landlord's lien against the applicant's property.

The case of Oakland Nominees Ltd v Gelria Mining and Investment Co Ltd 1976 (1) SA…, recognises that a possessor may have enforceable rights against an owner. The court remarked as follows;

“Our law jealously protects the rights and 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 that is tangible through an existing or past relationships.”

SILBERBERG and SCHOEMAN's The Law of Property, Fifth Edition defines a landlord's lien…, as follows;

“Primarily, the hypothec covers things carried and brought onto the property leased by the tenant (invecta et illata) that are owned by the tenant, including cash. However, in certain circumstances, it also extends to goods and articles owned by the third parties. Thus, the things carried in and brought onto the property leased by a sub-lease are subject to the head-lessor's hypothec to the extent to which he or she owes rent to the lessee as his or her sub lessor.”

As regards property of a third party, SILBERBERG and SCHOEMAN's The Law of Property, Fifth Edition…, states that the lien extends to property owned by third parties and remarks that “…, the things carried in and brought on to the property leased by a sub-lessee are subject to the head-lessor's hypothec to the extent to which he or she owes rent to the lessee as his or her sub-lessor.'' See Sugarman and SA Breweries Ltd v Burrows 1916 WLD 73.

The case of Bloemfontein Municipality v Jackson 1929 AD 266 deals with a scenario where property of a third party is brought on to the leased premises by the tenant and is available to the tenant. The court held that a third party whose movables are brought in by the tenant are covered by the hypothec where they are brought in with the knowledge and consent of the owner, with the intent that the goods be used by the tenant and the lessor is unaware that the goods belong to a third party. The owner will be taken to have consented to the goods being subject to the landlords hypothec.

In the latter case of Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA 495, the court held that property belonging to a third party found on the leased property which is available to the tenant, who creates the impression that the goods belong to the tenant exposes those goods to the landlord's tacit hypothec, and that where property belonging to a third party is attached, the goods must be released when that ownership has come to the landlord's knowledge.

The case of TR Services (Pty) Ltd v Polynton's Corner Ltd 1961 (1) SA 773 (D) lays out the requirements of the hypothec where a third party is involved as follows;

(a) The goods must be on the premises with the knowledge of the owner of the goods.

(b) There must be a degree of permanence.

(c) The property must be there for the use of the tenant; and

(d) The landlord must have had no notice that they belonged to some third party.

The case of Brooklyn House Furnishers v Kneetze and Sons 1970 (3) SA 264 deals with an enrichment lien. It is authority for the proposition that a lien can be regarded as a defence against an owner's res vindicatio until the owner has satisfied his debts to the lien holder. The retainer must have a claim against the owner.

A landlord has a right, at common law, to possess a tenant's property where a tenant fails to pay rentals. This is possible under a landlord's lien or lessor's tacit hypothec as it is otherwise known. The law allows a landlord to withhold personal property of a tenant brought on to the leased premises by the tenant, for failure to pay rentals to safeguard payment of his rentals. The lien accrues as soon as the rentals become due and attaches to property belonging to a lessee found on the leased premises when rent is due. The landlord may hold onto the property until the arrear rentals are paid. The landlord is entitled to take the property and sell it to recover his rentals. Where he decides to dispose of the property to recover the debt, he is required to follow proper legal channels. Generally, the hypothec covers goods brought on to the leased premises by the tenant for rentals that are owed by the tenant. The property must be on the premises of the tenant. Property outside the premises may not be taken.

A sub-lessees' property is subject to the landlords hypothec where he fails to pay rentals.

The landlord's hypothec extends to property belonging to a third party brought onto the leased premises by the tenant on the basis of implied consent or estoppel. AJ Van Der WALT, in an article titled Extending the lessor's tacit hypothec to third parties 'property' states that the reasoning for this approach is that such a third party and owner, having been aware of the whereabouts of his property, fails to protect it from the landlord's lien by informing the landlord of his rights in the property and hence is subjected to the lien. Property that is brought for use by the tenant, and with the knowledge and consent of the owner, and where the goods have been on the premises for an indefinite period and are intended for permanent use by the tenant are attachable. Where the goods are taken to the premises for use by the tenant and the landlord is unaware that the property belongs to a third party, the goods are covered by a lien.

The basis of the lien being capable of being a defence to a rei vindicatio is based on implied consent of the owner and estoppel.

The law governing the applicability of a lien, moreso the requirements of a lien, are clear that they relate to a claim for a lien by a landlord. A tenant who sub-leases the premises may not rely on the landlord's lien - he is not the landlord. It is only the landlord who may rely on a landlord's tacit hypothec.

The landlord's lien raises Constitutional concerns.

The extension of the lien to third parties is unfair when one considers that there may be no privity of contract between the third party and the landlord. The lien violates an owner's right to property in that an owner is deprived of his property in circumstances where he is not a party to any lease agreement and has no contractual relationship with the landlord.

As regards the lien, generally, the law allows the property of a tenant to be seized without notice or hearing in violation of principles governing due process of law. This amounts to an unlawful taking of property. The landlord is afforded immediate relief whilst the tenant's recourse is to take the rent dispute for resolution at court. The practice allows self-help on the part of the landlord thereby protecting only the interests of the landlord. The practice is discriminatory.

The applicant has managed to show that he is the owner of the biscuit making equipment. He produced receipts to that effect, illustrating, on a balance of probabilities, that he owns the property. The equipment is in the possession of another person who possesses it without his consent. The respondents were in possession of the equipment when these proceedings were instituted.

The applicant has satisfied the requirements of a rei vindicatio. The onus shifts on to the respondents to show that they have a right of retention over the equipment.

The applicant's version that the equipment was to be stored for free is more probable.

I see no reason why the third respondent would want to enter into a lease agreement for property not belonging to him and when the partnership had dissolved. There is no reason why the third respondent would enter into the lease agreement himself, in his name, when the applicant was available and in the absence of any authority to do so. What was his benefit? The indications are that he stored the equipment for free and is conniving with the second respondent and the sublease is a sham.

Even if it is accepted that there was a sub-lease agreement between the second and third respondents, there is no privity of contract between the owner of the equipment and these respondents. There is nothing to support the allegation that the third respondent was an agent of the applicant. The applicant was not involved in the arrangements for storage and he says he was unaware that he was required to pay for the storage. The third respondent entered into the lease agreement he must bear the consequences of failing to pay the rentals.

The defence of the respondents is not based on an enrichment claim. The claim is for a landlord's lien. The second respondent seeks to rely on a landlord's lien as a defence.

The second respondent is not a landlord. The landlord, is not claiming any lien against the applicant. He has distanced himself from the claim of a landlord's lien and says that he simply wants his rental from the second respondent. He is frustrated that the applicant has cited him in these proceedings.

What complicates this matter is that the applicant is not a party to the sub-lease.

A landlord's hypothec is simply that. It is a right exercisable by a landlord alone. A lessee who sublets a property may not, upon failure of the sub-lessee to pay rentals, have a lien over the sub-lessee's property. Equipment brought onto leased property by a sublessee is subject to the head-lessor's hypothec where he owes rentals to the lessee who is his sub-lessor. The sub-lessor himself has no hypothec against the equipment.

The facts do not support a defence of a lien against a third party.

Firstly, on the basis that the lien is not claimable by the second respondent. Secondly, whilst the equipment was brought in with the knowledge and consent of the owner, the respondents have not managed to show that the equipment was brought by the owner and for use either by the tenant or the third respondent. Further, the respondents have not shown that the equipment has remained there for an indefinite period constituting a sufficient degree of permanence to subject the equipment to a landlord's lien. The sublease was a monthly agreement. The equipment was brought in February 2016. By July 2016 the applicant was already demanding his property. There is no degree of permanence about the equipment. There is no legal relationship between the applicant and the second or first respondent. There is no creditor/debtor relationship between the parties.

Whilst the storage was sought for purposes of storing the applicant's equipment, there is no legal justification why the equipment should serve as security for the debt of the third respondent. There is no landlord's lien that binds the owner. The second respondent's recourse lies with the person with whom she has a lease agreement.

The respondents have failed to prove a right of retention of the equipment. The applicant is entitled to vindicate his property. The first respondent lays no claim against the applicant. There is no basis for an order of costs against him.

In the result, it is ordered as follows:

1. The first respondent shall return the biscuit-making equipment, being:

(a) Biscuit making machine with 50kg per hour capacity.

(b) Dough mixer 50kg capacity.

(c) Dough mixer 30kg capacity.

(d) Dough mixer 10kg capacity.

(e) Wafer baking tongs (6).

(f) Horizontal line auto packing machine.

(g) Water packaging (Bopp).

To the applicant within seven days of the granting of this order.

2. The first respondent shall pay costs of suit.

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”

In this matter the plaintiff's claim is for a declaratory order in the following terms:

“(a) An order that the defendant be declared the true and lawful owner of the Mercedes Benz Sprinter, registration number ACQ 0587.

(b) An order that the defendant surrender the Mercedes Benz Sprinter, registration number ACQ 0587 together with its registration documents to plaintiff within 48 hours of the order.

(c) An order that the defendant pays the costs of suit on an attorney and client scale.”

The defendant opposed the claims and contended that the Mercedes Benz Sprinter (hereinafter referred to as the motor vehicle) is hers. The defendant avers that the motor vehicle in dispute was purchased by the plaintiff on behalf of the defendant. She further averred that the defendant gave the plaintiff a total sum of ZAR120,000 after the plaintiff had convinced the defendant that it would be better for her to purchase a Sprinter omnibus instead of a 7 tonne truck she had intended to purchase.

To prove that the motor vehicle was indeed hers the defendant stated that the plaintiff had registered the vehicle in her names.

At the curtailment of pleadings, the parties agreed that the issue to be determined at trial was as follows:

“Whether or not the plaintiff is the true owner of the Mercedes Benz Sprinter, registration number ACQ 0587.”

It was resolved that the onus of proof was on the plaintiff to establish that he was the true owner of the vehicle and not the defendant.

Plaintiff's case

The plaintiff was the first to testify before calling three other witnesses in support of his claims. His testimony was essentially to the effect that he was employed by the defendant as a driver until this dispute arose. He had been employed as such for a period of more than ten years prior to the dispute. He narrated that problems started when he was involved in a road traffic accident whilst driving the defendant's Toyota Quantum on 23 July 2013. The said Quantum motor vehicle, though belonging to the defendant, was registered in the names of one F. Ndlovu.

The plaintiff maintained that the Mercedes Benz Sprinter is his and that he bought it from one Lethu Phepheta Ncube in October 2012. A written agreement of sale was entered into between Lethu Phepheta Ncube and the plaintiff's wife Sanelisiwe Viki Nyamambi.

At the time the agreement was concluded, the plaintiff was in South Africa, and his wife signed the agreement of sale on the plaintiff's behalf.

The Agreement of Sale was tendered into the record. The agreed purchase price was US$10,000 and a deposit of US$8,000 was paid to the seller leaving a balance of US$2,000 which is still to be paid.

The written agreement of sale tends to confirm the version of events as chronicled by the plaintiff in his evidence in chief. The plaintiff further testified that he attended to certain repairs on the motor vehicle until it became roadworthy. He did the upholstery of the vehicle and purchased an engine from one Sipho Hadebe and replaced the one reflected in the registration book of the vehicle. The old engine was, at the time of the hearing, with the mechanic.

The plaintiff testified that he paid US$5,000 for the engine and a written agreement of sale was produced in court to corroborate the plaintiff's testimony.

The plaintiff informed the court that the source of funding for the motor vehicle in dispute was from a sale of a Toyota Hiace motor vehicle and a loan obtained from his wife's Bank. Documents were tendered into evidence to support the plaintiff's version. The plaintiff stated that whilst he was busy fixing the motor vehicle he visited the defendant whilst driving the motor vehicle. That is when the defendant proposed that he could register the vehicle in her (defendant's) names so that he could use the vehicle to ply the busy Bulawayo – Johannesburg route.

The defendant gave the plaintiff her identity document in order to use it to register the vehicle in his name. The plaintiff advised the seller of the vehicle, Lethu Phepheta Ncube about the arrangement. The plaintiff stated that that everything was done in good faith. The plaintiff averred that he paid all the costs for the change of ownership and related registration expenses, including insurance fees. Once he had secured all the papers for the permit, the plaintiff had employed Nkosilathi Mkhizwana to drive the vehicle to and from South Africa. The plaintiff said the arrangement was that the defendant would receive a commission in the form of the entire fee for one trip in every four trips.

The plaintiff stated that the practice of using other persons' names is common place in that particular trade or business.

The plaintiff testified that after he was involved in an accident with the defendant's Toyota Quantum, the defendant became very bitter and she expressed displeasure and ordered that the plaintiff should repair the vehicle. When the plaintiff pointed out that the insurance should cover the costs of repairs, the defendant swore that she would fix the plaintiff by claiming ownership of the Mercedes Benz Sprinter since it was registered in her names.

The plaintiff testified that when he came back from one of the trips in South Africa, the motor vehicle was seized by the defendant who used the Criminal Investigations Department to dispossess him of possession of the motor vehicle. This happened in August 2013 - almost a year after he had been in peaceful possession of the motor vehicle. This event, according to the plaintiff, marked the start of a long and protracted legal battle to recover his motor vehicle.

The next witness for the plaintiff was Sanelisiwe Viki Nyamambi. She is married to the plaintiff. She testified that she is the one who handed the US$8,000 as a deposit for the vehicle to Lethu Phepheta Ncube. She said the agreement of sale was prepared by Lethu Phepheta's wife. She signed the agreement on the plaintiff's behalf because at the time he was away in South Africa.

The witness confirmed that when the vehicle was delivered it was repaired before it was considered roadworthy. She confirmed that she took a loan from her Bank and contributed a sum of US$1,500 towards the deposit. She further asserted that it was always known to the defendant that the motor vehicle belonged to the plaintiff. The driver was surrendering all the monies at her house when the vehicle commenced work.

The third witness called by the plaintiff was Lethu Phepheta Ncube. He is a mature man who gave the following evidence:

He confirmed that as far as he was concerned he sold the motor vehicle to the plaintiff and did not know the defendant at all. He seemed baffled by the suggestion that the defendant was the owner of the vehicle. He stated that the plaintiff had told him that he was unable to pay the balance on the purchase price because the defendant had taken the vehicle from him (plaintiff) by force. He corroborated the plaintiff and his witness was not challenged by the defendant at all.

The plaintiff's last witness was Nkosilathi Mkhizwana. He confirmed that he was employed by the plaintiff to drive the Mercedes Benz Sprinter in dispute. When he came back from a trip he would hand over the takings to the plaintiff or his wife. He confirmed that he believed that the motor vehicle belonged to the plaintiff. The evidence of this witness was not contested at all.

Defendant's case

The defendant opened her case by giving viva voce evidence. She stated that there existed a relationship of trust between herself and the plaintiff spanning a period of over ten years. She testified that the motor vehicle in dispute is hers. She denied that it had been registered in her names for the sake of expedience. She told the court that she raised the sum of ZAR120,000 which she forwarded to the plaintiff for the purchase of the vehicle.

The money was handed to the plaintiff in cash and there was no written proof for the transaction.

The defendant averred that it was not necessary for her to be involved in the actual purchase of the vehicle as she trusted the plaintiff; and the plaintiff had previously conducted various transactions on her behalf. She confirmed that she was not involved in the change of ownership of the motor vehicle in dispute.

The defendant portrayed the picture of a successful businesswoman operating shops, a bottle store in Plumtree and a commuter omnibus operator. The defendant advised the court that whatever the plaintiff did in relation to the Mercedes Benz Sprinter was done on her behalf.

The gap that exists in the evidence of the defendant is that she does not explain why from the year 2012 the plaintiff exercised full control over the motor vehicle without her involvement.

The next witness called by the defendant was Tshenjelani Ndlovu. She was called to confirm that the plaintiff was given money amounting to ZAR70,000 for the purchase of the vehicle. She also stated that the plaintiff had brought the motor vehicle to the defendant's house in order to show it to her.

The last witness for the defendant was Nigion Majohana Moyo. He testified that the defendant had advised him that she had bought a Mercedes Benz Sprinter and that a dispute had arisen after the defendant discovered that the plaintiff was using the vehicle and making trips to South Africa. The main feature of this witness's evidence is that the information he gave in court is based on what the defendant had told her. He did not have an independent knowledge of the details of the matter.

Analysis of evidence

In this matter, I have to assess the credibility of the witnesses and assess the probabilities of the plaintiff's version as against the defendant's account. There are issues that are common cause in this dispute and they are these:

(a) The plaintiff purchased the Mercedes Benz Sprinter from Lethu Phepheta Ncube.

(b) The plaintiff concluded the entire agreement of sale without the involvement of the defendant.

(c) The plaintiff changed ownership of the motor vehicle and proceeded to register it in the defendant's names.

(d) The plaintiff effected repairs on the motor vehicle and immediately started using it, plying the Bulawayo – Johannesburg route.

(e) The plaintiff employed a driver, Nkosilathi Mkhizwana, who worked for the plaintiff and surrendered all takings to the plaintiff or his wife.

(f) The defendant's Toyota Quantum motor vehicle was involved in an accident whilst being driven by the plaintiff in July 2013.

(g) A dispute arose when the plaintiff refused to effect repairs on the defendant's Toyota Quantum motor vehicle.

(h) The defendant repossessed the motor vehicle in question in August 2013 through the intervention of the Criminal Investigations Department, Bulawayo. The motor vehicle was reposed from the plaintiff by the CID and handed to the defendant.

The plaintiff's testimony is supported by documentary evidence. He produced the Agreement of Sale signed by his wife and Lethu Phephetha Ncube. There is no argument that what Lethu Phepheta Ncube stated in court represents the truth of what transpired. The plaintiff further produced the loan agreement relating to the loan secured by the plaintiff's wife. The circumstances under which the vehicle was registered in the names of the defendant were adequately explained.

During the trial, it became apparent that the practice of registering vehicles under another person's name is a very common in the Cross-Border Transporters Industry.

What became also clear is that one can only ply the Bulawayo – Johannesburg route if one is registered as a member of an organization known as Zimbabwe International Long Distance Taxi Association. That organization controls its members who queue officially and load passengers in Johannesburg, South Africa to Zimbabwe. The relevance of the organization is that the plaintiff could not have plyed that route without being a member, or, alternatively, by using someone else's name.

I find the following to be inconsistencies in the defendant's version:

(a) The defendant stated, in her evidence in chief, that she did not pay for the repairs for the Quantum motor vehicle, but, under cross-examination, she failed to explain why she issued a letter of demand, through her lawyers, for the costs of repair.

(b) The defendant clearly had no knowledge whatsoever about how the motor vehicle in question was purchased.

(c) The defendant sought to persuade the court to believe that she put up a huge amount of ZAR120,000 for the purchase of a motor vehicle she had never seen, when she testified that previously she went all the way to Durban, South Africa to identify and purchase a vehicle.

(d) The defendant produced no document at all to support her case. It is quite telling that the only documents she sought to rely on were documents seized from the plaintiff by members of the Criminal Investigations Department.

(e) The defendant's assertion that she reported the matter to the police because she had discovered that the motor vehicle was undertaking trips to South Africa is in direct conflict with her earlier contention that the takings from the trips were initially surrendered to her and for her benefit.

I am therefore satisfied, that, on the evidence led in court and on close examination of all the documentary evidence admitted into evidence, the plaintiff has managed to prove his case on a balance of probabilities.

In civil cases, the burden of proof is discharged as a matter of probability. The standard is often expressed as requiring proof on a “balance of probabilities”, but that should not be understood as requiring that the probabilities should do no more than favour one party in preference to another. What is required is that the probabilities in the case be such that, on a preponderance, it is probable that the particular state of affairs existed.

In the case of Milner v Minister of Pensions 1947 2 ALL ER 372…, LORD DENNING expressed the civil standard of proof as follows:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not.”

It is my finding that the plaintiff and the defendant operated on the basis of mutual trust. They both took each other into the other's confidence. I make the specific finding that the plaintiff plyed the Bulawayo-Johannesburg route using the Mercedes Benz Sprinter for a period extending from about October 2012 to August 2013. The plaintiff collected all the cash from the trips and handed the defendant the equivalent of one trip in every four trips. The defendant accepted the money without question and must have known that the plaintiff was operating the Mercedes Benz Sprinter for his exclusive financial benefit, save for the fee she received for facilitating the arrangement.

I have established, and it is beyond dispute, that problems only emerged after the defendant's Toyota Quantum was involved in an accident in July 2013. It cannot be mere incidence that, that was the same time the defendant seized the Mercedes Benz Sprinter and laying claim over it. If indeed the defendant was the owner of the vehicle in dispute one would have expected to see her involvement in the purchase of the vehicle and her participation in the repairs to the motor vehicle. If the vehicle belonged to her, one wonders why she did not employ her own driver on her own terms and why the driver was not surrendering the cash from the trips to her.

In the result, it is ordered as follows:

1. The plaintiff be and is hereby declared to be the true and lawful owner of the Mercedes Benz Sprinter bearing registration number ACQ 0587.

2. The defendant is ordered and directed to surrender to the plaintiff the Mercedes Benz Sprinter, bearing registration number ACQ 0587 together with its registration documents within 48 hours of this order.

3. The defendant is ordered to pay the costs of suit.

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to have a right of occupation.

The appellant had challenged the vindicatory action instituted by the respondent on the basis that she had a right of occupation derived from an agreement of sale of the property entered into between her and a company called Champion Constructors (Pvt) Ltd, duly represented by one of its directors and a shareholder, Ms Elizabeth Chidavaenzi.

After hearing argument from counsel for both parties, the appeal was dismissed. It was indicated then that reasons for the decision would follow in due course.

It was not in dispute that the respondent was the registered owner of Stand number 3182 of subdivision A of 159 of Prospect, Harare. The issue before the court a quo was whether there was a binding agreement of sale which gave the appellant the right of occupation.

The court a quo found against the appellant.

The question before this Court is whether the decision of the court a quo is correct on the evidence placed before it by the parties.

The facts of this case are as follows.

The respondent issued summons for the ejectment of the appellant from Stand number 3182 of Subdivision A of Stand 159 Prospect in Harare on 9 June 2008. In her plea, the appellant sought the dismissal of the claim on the basis that she was a legitimate possessor and occupier of the property. The contention was that the right, title and interest in the property was lawfully transferred to her by a declaratory order issued by the High Court in case No. HC7594A/06.

The appellant contended that she was in occupation of the property pursuant to an agreement of sale entered into between herself and a company called Champion Constructors (Pvt) Ltd. The appellant contended that, alternatively, the respondent was estopped from denying that Champion Constructors (Pvt) Ltd was the holder of rights, title and interest in the property and was entitled to dispose of the property as it did.

The respondent, through its managing director, Mrs Elizabeth Chidavaenzi, tendered various documentary exhibits in support of its position. She denied that Champion Constructors (Pvt) Ltd had ever been authorised to dispose of the property in the manner alleged or at all.

The appellant relied on her own testimony and on the evidence of two former workers of Fingold Real Estate, which had allegedly been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to her.

The court a quo accepted that the respondent was the registered owner of the property in question on the basis of irrefutable evidence - the title deeds to the property. The court also accepted that Mrs Elizabeth Chidavaenzi was the managing director and controlling shareholder of the respondent. The evidence placed before the court a quo pertaining to the relationship between the respondent and Champion Constructors (Pvt) Ltd was that the respondent company had contracted Champion Constructors (Pvt) Ltd to service the land and develop residential houses on the subdivisions. The agreement between the parties was that Champion Constructors (Pvt) Ltd would be paid in kind for its services or in the form of completed houses which it would, in turn, sell to prospective home-owners in order to recoup its expenses.

Mrs Elizabeth Chidavaenzi told the court a quo that, in the past, the respondent had mandated Fingold Real Estate to sell two of its properties but it did not sanction the sale of the property in issue. She testified, further, that this is the reason why the agreement of sale was not signed by the seller. Her testimony was to the effect that the appellant was involved in a fraudulent sale which had been masterminded by John Chagaresango of Finhold Real Estate, a close relative of the appellant.

Ms Chidavaenzi said that the first time she became aware of the purported agreement of sale of 26 September 2006, between the appellant and Champion Constructors (Pvt) Ltd, was in November 2006 when lawyers for the appellant began pestering her with demands that she sign the document. She also told the court a quo that on the two occasions that she had mandated Fingold Real Estate to sell properties on the respondent's behalf, she had given them instructions in writing, which she denied doing in this case.

The appellant admitted before the court a quo that John Chagaresango of Fingold Real Estate was a close relation of hers, her elder sister's son. She testified that she signed the agreement of sale before John Chagaresango, Mr Phiri and Faith Muzungu on 26 September 2006. Thereafter, she paid Z$32,500,000= on 28 September 2006, 9 October 2006 and 3 November 2006. The appellant's evidence before the court a quo was that the terms of the agreement of sale were not fully explained to her. She admitted that Ms Chidavaenzi had never authorised her to make improvements to the property.

The court a quo found that, despite being a major shareholder in both the respondent and Champion Constructors (Pvt) Ltd, Ms Chidavaenzi was a “focused, confident and convincing” witness whose “evidence proclaimed loudly and boldly that there was no contract to talk about between Champion Constructors and the appellant.”

The court found, further, that, Fingold Real Estate could not possibly have been mandated to sell the property in question to the appellant by Champion Constructors (Pvt) Ltd or anyone else. The estate agent failed to produce proof of its mandate to sell that particular property.

On the effect of the High Court order relied upon by the appellant as bestowing or confirming that the appellant had acquired the rights, title and interest in the property, the court a quo found that the order was made in default and was against Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi. The court's view was that the order was not binding on Drawing Services (Pvt) Ltd or enforceable against it, because, despite being the registered owner of the property, it had also not been cited as a party to the proceedings.

According to the appellant's testimony before the court a quo, John Chagaresango, who worked for Fingold Real Estate, advised her that the property in question was for sale. Accompanied by John Chagaresango, she went to view the property. The property was in the care of Champion Constructors (Pvt) Ltd, which, together with Drawing Services (Pvt) Ltd, the respondent, were under the directorship and shareholding of Elizabeth Chidavaenzi and Keroni Tevera (according to form CR14 produced before the court a quo).

Elizabeth Chidavaenzi testified that Keroni Tevera was a passive participant in the management of the affairs of Champion Constructors (Pvt) Ltd. According to the evidence before the court a quo, after the visit to the Stand, John Chagaresango contacted Elizabeth Chidavaenzi and advised her that the appellant wished to purchase the Stand. It would appear that, upon instruction, Fingold Real Estate drew up a draft agreement, in terms of which the seller, Champion Constructors (Pvt) Ltd, held itself out as being the holder of the rights, title and interest in the property, and as agreeing to sell to the purchaser, the appellant, its right, title and interest on some of the following conditions:

1. The purchase price of the property of Z$32,000,000= (thirty two million Zimbabwe dollars) plus 15% value added tax be paid.

2. A deposit of Z$21,000,000= (twenty one million Zimbabwe dollars) to be paid in full within 48 hours of signing the agreement of sale, failing which the seller shall be entitled to cancel the agreement without further notice.

3. A cash deposit was to be paid by Bank cash transfer to Champion Constructors (Pvt) Ltd.

Clause 8 of the document of sale provided that there would be no variation of the conditions of the agreement unless the variation was in writing and signed by the parties.

In Clause 14, the parties acknowledged that the written agreement between them would be the only agreement and that no other conditions, stipulations, warranties or guarantees would be valid unless included in the agreement.

The appellant signed the proposed agreement on 26 September 2006 before two witnesses. The respondent did not sign. Champion Constructors (Pvt) Ltd did not sign. Elizabeth Chidavaenzi alleges that the estate agents drafted the document without her knowledge and consent. The appellant paid the deposit before the respondent signed the agreement of sale.

Her first instalment was paid on 28 September 2006. It took her up to 3 November to pay the deposit in full, contrary to the provisions of clause 1 of the alleged agreement of sale which stipulated that the deposit must be paid in full within 48 hours of the date of the signature of the agreement. If the appellant signed the alleged agreement on 26 September, and assumed that the seller had done the same, the deposit ought to have been fully paid by 28 September 2006.

It is not in dispute that the appellant subsequently paid the purchase price in full to Champion Constructors (Pvt) Ltd. When she sought to take occupation she was prevented from doing so by the respondent. The appellant applied to the High Court seeking an order declaring that the document she signed on 26 September 2006 constituted a valid and binding agreement of sale between herself and Champion Constructors (Pvt) Ltd. On 19 September 2007, the High Court issued an order on the following terms:

1. The provisional order in case number HC7594A/06 be and is hereby confirmed on the following terms:

(a) That the agreement of sale between the applicant and the first respondent, signed on 26 September 2006, in respect of Stand 3182 of Subdivision A of 159 Prospect be and is hereby declared to be legally binding and enforceable against the first respondent.

Armed with the order, the appellant took occupation of the property against protestation by Elizabeth Chidavaenzi. On 9 June 2008 the respondent issued summons out of the High Court claiming, by vindicatory action, ejectment of the appellant from Stand 3182 of Subdivision A of Stand 159 of Prospect Harare. It alleged that it was the owner of the property in terms of Deed of Transfer DT5668/72.

The respondent alleged that the appellant had no right to occupy the property as she had not entered into an agreement of sale with the registered owner of the property. The respondent alleged that there was no privity of contract between the appellant and the respondent.

In resisting the action, the appellant raised three points:

1. She denied that the respondent was the owner of the property and argued that the right, title, and interest in the property had been lawfully transferred to her by virtue of the declaratory order issued in her favour by the High Court order of 19 September 2007.

2. The appellant alleged that she had a right of occupation to the property by virtue of the agreement of sale with Champion Constructors (Pvt) Ltd.

3. The appellant denied that there was no privity of contract between the respondent and Champion Constructors (Pvt) Ltd as they were both under the directorship of Ms Chidavaenzi, who, according to the appellant, knew about the agreement of sale.

After hearing the evidence of the parties relating to the issues, the court a quo found that the appellant was not a credible witness. The court was not assisted by the evidence of the witnesses called by the appellant to bolster her case. It found Evis Monica Mutodi to have given “a hopelessly confusing piece of evidence”, which, under cross examination, was not consistent with that of the appellant even on the purchase price.

The court found that the appellant said that the purchase price was pegged at $32,000,000= while Evis Monica Mutodi said the purchase price was $32,000,500=. While Evis Monica Mutodi told the court that she had discussed the clauses of the alleged agreement of sale with her, the alleged appellant denied this and testified that she only discussed the agreement of sale with John Chagaresango.

On the veracity of the evidence of John Chagaresango, the court found that he testified to being given a mandate by Elizabeth Chidavaenzi to sell certain of her properties, including what he constantly referred to as Stand 1382, which, in reality, was Stand 3182. The court found his evidence at variance with that of Evis Monica Mutodi when he said that Ms Chidavaenzi had visited the site prior to the appellant doing so. The court also found that when directed to clauses that the appellant had not complied with, all John Chagaresango could say was that the agreement was not based on what the appellant and the witnesses had signed, but other verbal assurances by Ms Chidavaenzi.

In contrast, the court found the evidence of Ms Chidavaenzi to be precise and to the point. It found that the evidence was consistent with her plea and summary of evidence; and, in her evidence-in-chief, and under cross-examination, she maintained the denial that she gave Fingold Real Estate, or anyone, a mandate to dispose of the property.

Having dismissed the defence by the appellant, the court granted the eviction order. It is against the order that the appeal was instituted on the following grounds:

1. The court misdirected itself in concluding that Elizabeth Chidavaenzi was a credible witness, yet her demeanour and the inconsistencies and improbabilities in her evidence justified a finding that she lacked credibility.

2. The Judge misdirected himself by relying on what he considered as not having been put to the plaintiff's witness in cross-examination, yet, those matters related to areas where the evidence of the witnesses was mutually destructive.

3. The court misdirected itself by failing to determine that Elizabeth Chidavaenzi represented both the plaintiff and Champion Constructors (Pvt) Ltd when she sold the property in dispute to the defendant.

4. The Judge misdirected himself in his conclusion that Evis Monica Mutodi's evidence was “hopelessly confusing.”

5. The court misdirected itself in accepting, without criticism, the evidence of Elizabeth Chidavaenzi to the effect that she did not mandate Fingold Real Estate to sell the property in dispute.

6. The court misdirected itself by coming to a contrary conclusion in respect of a fact which was issue estoppel.

7. The court misdirected itself by relying on principles applicable to a lessee to conclude that the defendant, a bona fide possessor, had no right of retention pending compensation for improvements.

8. The Judge misdirected himself by failing to consider that the right of retention arises by operation of law upon the defendant showing that she is a bona fide possessor, and not upon the defendant instituting proceedings to enforce the agreement of sale.

The question whether the respondent, Drawing Services (Private) Limited, was a party to the proposed agreement of sale with the appellant must be answered in the negative. This means that there was simply no privity of contract between the appellant and the respondent. The appellant purported to contract with Champion Constructors (Pvt) Limited - a separate legal entity from the respondent.

The appellant's submission that the matter before the court a quo was res judicata must be rejected for the same reason. The respondent was not a party to the proceedings in which the High Court issued a declaratory order that the appellant could enforce her agreement of sale with Champion Constructors (Pvt) Limited.

There was no agreement between the appellant and the respondent in this case as evidenced by the fact that the respondent did not sign the proposed agreement of sale. In fact, the respondent denies offering the property for sale to the appellant.

Clause 14 of the proposed agreement of sale signed by the appellant stipulated that the agreement between the parties would only be valid and binding if reduced to writing and signed by both parties. This is intrinsic evidence of the intention of the parties. There was no binding contract between the appellant and Champion Constructors (Pvt) Ltd. If there was to be an agreement of sale, as alleged by the appellant, it would have to be evidenced by production of a written document signed by both parties.

We are of the view that there was no misdirection on the part of the court a quo for the following reasons:

1. There was no contract of sale between the appellant and the respondent.

2. The registered owner of the property, the respondent, had a right to vindicate its property against a person in occupation without its authority.

3. The appellant could not claim a right of occupation against the respondent on the basis that she was granted the right by an agreement that it entered into with another company which was not acting as an agent of the respondent to enter into the agreement on its behalf.

4. The High Court order on which it was sought to found the right of occupation did not grant the appellant such a right. That order, if it is correct, declared the validity and bindingness of the agreement purportedly entered into between the appellant and a Champion Constructors (Pvt) Ltd. Unfortunately, the order granted has no legal force or effect in the sense in which the appellant interprets it. It purports to declare the validity and bindingness of a written agreement which was signed by both parties on 26 September 2006. In fact, no such agreement exists. The proposed agreement was never signed by both parties. Only the appellant signed it. No reliance can therefore be placed on that order of the High Court.

Counsel for the appellant, having noticed the difficulty the appellant's case was meeting on appeal, argued that the parties entered into an oral agreement.

With respect, this was never alleged before the court a quo when the parties actually gave evidence and it is not alleged as a ground of appeal. It is also contrary to the clear intention of the parties as expressed in the document signed by the appellant on 26 September 2006.

For instance, in clause 14, the document declares itself to contain all the conditions and representations by which the parties wish to be bound. It goes on to exclude anything else not contained therein which is not in writing and signed by the parties. It expressly denies force to oral evidence as proof of a valid contract of sale between the parties.

The appellant accordingly paid her cash deposit when there was no obligation on her to pay. Only one party had signed the document on the dates that she paid.

In light of the evidence that there was no agreement of sale between the appellant and the respondent, the fact that both companies are under the directorship of Elizabeth Chidavaenzi does not assist the appellant's case.

It was for these reasons that the appeal was dismissed with costs.

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066 square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter.

(ii) Secondly, whether the affidavit by Mr Stevenson is properly before me. In other words, is there a Notice of Opposition on behalf of Muir?

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition. MAFUSIRE J could not grant what had not been prayed for.

Coming to the second angle, Muir did not file an affidavit neither has one been filed by a party authorised by her.

In terms of Rule 227(2)(b), every written Notice of Opposition shall be signed by the respondent or by his legal practitioner. In terms of Rule 227(4)(a) an affidavit shall be made by the respondent or by a person who can swear to the facts or averments set out therein.

It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors HERBSTEIN & Van WINSEN - The Civil Practice of the High Courts of South Africa, 5^th Ed…, put it this way;

“Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.”

It is a telling assertion. He filed the “affidavit” without a mandate from Muir but did so due to some pressure from interested parties.

After the matter had been postponed, Mr Moyo, for Leggatte, filed a supplementary affidavit whereby he asserted that he had discovered a letter from Muirs's son authorising Mr Stevenson to act for Muir.

It is clear that this is an attempt to validate the actions of Mr Stevenson.

Mr Stevenson does not depose to the supplementary affidavit to explain why he was quite categoric in his affidavit that “he had been prevailed upon”. This does not explain why he filed the affidavit in his name without an averment that he had been authorised by Muir to defend the proceedings and to depose to the opposing affidavit.

If the interested parties thought that his evidence would assist them, then he should have deposed to an affidavit which they would attach to their own papers.

In any event, Mr Stevenson does not have personal knowledge about some of the critical matters in this case. He has no independent knowledge of whether the Gurupiras discharged their obligations or not in terms of the agreement. He does not know whether Muir cancelled the agreement, and, if so, how.

Mr Stevenson is either mistaken on the facts or he did not tell the truth in his affidavit. In paragraph 12 of his affidavit he states;

“The agreement signed by the second respondent and her husband, Ramon Charles Muir, on 27 May 2008 with John Leggatte, who signed on 28 May 2008…,.”

It is common cause that the agreement with Leggatte was entered into by Sandra Muir only. By the time of that agreement, her husband was late. She owned the two issued shares in the company with her husband's share having been transferred to her in 2006. Whatever information that he placed before the court is hearsay and it is inadmissible - and such information does not constitute Muir's opposition.

In view of the above there is no opposition filed by Muir and the matter will be related to on that basis.

This leaves the court with the Gurupira's position and that of Leggatte in the main and the counter-application.

Mr De Bourboun contented that, at best, the Gurupiras own two shares of the 100 issued shares in the company. That right is in dispute as they failed to pay the purchase price and the agreement terminated in terms of clause 13. Leggatte owns the remaining 98 issued shares. The Gurupiras have no proof in the form of certificates that they own the two shares. There is no entry in the share register.

The other issues that he addressed, relating to the transfer of the company property to the Gurupiras, were taken care of by the amendment to the draft order.

It was further submitted that you cannot give any relief which impacts on Muir in her absence.

In respect of the counter-application, Mr De Borboun contended that the Gurupiras are in unlawful occupation of the property that belongs to the company in which Leggatte was the majority shareholder. There is no arrangement, contractual or otherwise, in terms of which the Gurupiras can claim a right to reside in or occupy the property.

The Gurupira's position is that they discharged their obligation in terms of the agreement. The agreement still subsists. It makes the agreement with Leggatte a double sale.

It was further submitted that once Muir had sold the two shares, she lost rights to deal with those two shares. She could not do the allotment of the other shares as that is done by directors and not shareholders. She would need a quorum of two (2) directors as provided for in terms of section 169(v) of the Companies Act [Chapter 24:03].

The Gurupira's position can only be responded to by Muir who is not before the court. The position of law is settled on this point. In Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise & Ors 1993 (2) ZLR 121 (SC) it has stated:

“The simple rule of the law is that what is not denied in affidavits must be taken to be admitted.”

In casu, no evidence has been placed before the court to controvert the Gurupira's assertion that they complied with their obligations. There is also no evidence that the agreement was cancelled. As it is, nothing stands in the way of the grant of the order as sought by the Gurupiras.

In my view, the applicants have not established a legal basis for the property to be transferred into their names. The property is the sole asset of the company. The applicants will be the shareholders of the company. They will have to deal with the property in terms of the Companies Act. Any reference to transfer of the property in the draft order will therefore be deleted.

In view of the findings I made above, Leggatte's counter-application cannot succeed.

In the result, I will make the following order;

IT IS ORDERED THAT:

1....,.

2....,.

3....,.

4....,.

5. The sixth respondent's counter application is hereby dismissed.

This is an appeal against a judgment of the High Court handed down on 18 May 2016.

BACKGROUND FACTS

The facts which gave rise to this appeal are somewhat convoluted. Earthmoving & Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe.

The Company had, at the time of incorporation, an authorized share capital of $32, divided into 32,000 ordinary shares with a nominal value of $0.001 each. Of those shares, only two had been issued. and were, at the time that these events evolved, owned by one Sandra Maureen Muir (“Mrs Muir”). This, in effect, gave 100 percent ownership of the issued shares to Mrs Muir.

In turn, the Company is the registered owner of an immovable piece of land, situate in Harare, identified as a certain piece of land situate in the district of SALISBURY TOWN LANDS measuring 3,066 square metres (also known as 98 Churchill Avenue, Gunhill, Harare). This property is the sole asset of the company.

On 27 May 2007, Mrs Muir concluded a written agreement of sale with Mr and Mrs Gurupira, in terms of which Mrs Muir sold to them the two shares in the Company. In terms of the agreement between the parties, the shares purchased by the Gurupiras' would entitle them to the “exclusive right of use and occupation” of the immovable property owned by the company. The purchase price for the shares was recorded as ZW$7,000,000,000= (seven billion dollars), payable as to a deposit of ZW$3,300,000= which was acknowledged as having been paid at the time of signing of the agreement. The balance of ZW$3,370,000,000= was to be paid within six (6) months from the date of the agreement. The rate at which the outstanding balance was to be paid as well as the frequency thereof were left to the discretion of the parties.

Although the purchase price was quoted in the local currency, it is common cause that the Gurupiras made sporadic payments sometimes in fuel, sometimes in US Dollars, and sometimes in Zimbabwe Dollars.

Up until the end of June 2007, the Gurupiras had made payment on eight occasions, with payment being made as described above. The total amount paid to Mrs Muir under this arrangement is in dispute between the parties.

On 4 August 2007, the Gurupiras addressed a letter to Mrs Muir indicating that they were encountering challenges raising the balance of the purchase price and sought an extension of the time to make payment but did not specify an exact date of expected payment. The last date for payment under the agreement was 25 November 2007.

A dispute ensued on the manner of payment, the currency of payment, and the place at which payment should be effected.

The Gurupiras alleged that at some point Mrs Muir started refusing payment in the local currency and demanded that the balance be paid in foreign currency. Mr Gurupira advised Mrs Muir that he could only pay foreign currency if he was able to access it and that he was not always in a position to obtain it. On 12 November 2007, Mr Gurupira instructed his legal practitioners to write to Mrs Muir to provide an account into which payment of the outstanding balance of the purchase price could be deposited. There was no response.

On 23 November 2007, the Gurupiras filed an application in the High Court seeking an order for Mrs Muir to provide a Bank account into which payment of the outstanding balance of the purchase price could be paid. In addition, they sought an order for specific performance by Mrs Muir for the transfer of shares in the company to themselves against a tender of payment of the balance of the purchase price.

This application never saw the light of day having been withdrawn before it could be set down.

The record shows that on 6 September 2007, the Gurupiras made a payment through wire transfer directly to Israel where Mrs Muir was now residing. Also on record is a cheque payment, in February 2008, into a Standard Chartered Bank account bearing Mrs Muir's name.

It is common cause that during the period following the filing of the above mentioned application Mrs Muir concluded a series of agreements with the first appellant, (“Leggett”).

On 11 December 2007, Mrs Muir and Leggett concluded an agreement in terms of which the latter would subscribe to 98 ordinary shares in the company. Subsequently, on 27 May 2008, Leggett concluded an agreement with Mrs Muir in terms of which the former purchased the entire shareholding in the company from Mrs Muir. Just as in the case of the Gurupiras, the purchase entitled him to “exclusive use and occupation” of the immovable property which is the subject matter of this appeal.

Subsequent to the conclusion of the first agreement, the Gurupiras became aware that Mrs Muir had placed advertisements for the sale of the immovable property. As a consequence, on 7 March 2008, under Case No. HC1393/08, the Gurupiras filed an application with the High Court in which they sought, variously, as against the company, interlocutory relief prohibiting the transfer of the immovable property, and, as against Mrs Muir, an order for specific performance in respect of the immovable property. The Registrar of Deeds, the Sheriff for Zimbabwe and his Deputy were also cited as third, fourth and fifth respondents respectively.

On 21 May 2018, the High Court granted an order in favour of the Gurupiras, in default of appearance from Mrs Muir and the company, as claimed in the draft order.

On 16 June 2008 the property was transferred to the Gurupiras under Deed of Transfer No. 4778/08. They proceeded to evict the occupant, one Diniwe Chinyani. She informed Leggett.

An urgent application for rescission of the default judgment was filed on behalf of the company. It was adjudged not urgent and was finally set down for hearing as an opposed matter. However, the matter was referred to trial on the premise that there existed material disputes of fact.

Pending the determination of the application for rescission, the company filed a counter application in which it sought an order for the eviction of the Gurupiras on the premise that it was the owner of the property in question.

On 19 March 2014, after a full trial, the High Court gave an order in terms of which the default judgment was set aside with leave being granted for “the respondent” in the main application to file opposing papers.

The main application was heard by the High Court on 21 May and 18 June 2015. By this time, pursuant to an application by the Gurupiras, Leggett had been joined as sixth respondent by order of the court. An issue arose as to whether Mrs Muir was before the court. The Gurupiras argued that she had not applied for the rescission of the default judgment in the sense that only the company had sought such rescission. It also transpired that Mr Stevenson, who purported to represent her on the day of the hearing, had not filed papers on her behalf nor did he appear to have the mandate to represent her.

On 18 May 2016 the High Court handed down its judgment and issued an order:

1. Declaring that the Gurupiras to be the lawful shareholders of the entire shareholding in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent (Leggett) be deemed to be null and void. (sic)

2. Directing the second respondent to sign all necessary documents to effect transfer of the above-mentioned shares. (sic)

3. That should the second respondent fail to sign the necessary documents to effect transfer of the shares, the Sheriff of the High Court be directed to sign all necessary documents to effect transfer of the shares to the Gurupiras.

4. The first and sixth respondents shall bear the costs of this application on an attorney and client scale jointly and severally each causing the other to be absolved. (sic)

5. Dismissing the sixth respondent's counter-application.

It is this decision that Leggett has brought on appeal and Mrs Muir is cited as third respondent to the appeal. The appeal is premised on the following grounds:

1. The learned Judge erred in finding that the judgment given in default as Mrs Muir had not been set aside and rescinded in case no. HC4211/08.

2. The learned Judge erred in holding that the matter fell to be determined on the basis that Mrs Muir had been properly served with the papers in the matter, and that, as a consequence of her failure to oppose the matter (which finding is disputed), the disputes fell to be resolved on the basis of the version put forward by the Gurupiras.

3. The learned Judge erred in finding that the Gurupiras had established an entitlement to the transfer into their names of any shares in the second appellant, and that the transfer of shares into the name of Leggett had no legal effect.

4. The learned Judge erred in failing to apply section 120 of the Companies Act [Chapter 24:03], and in failing to take account of the fact that no application was made to rectify the share register of the company.

5. The learned Judge erred in failing to hold that Leggett, as the sole registered shareholder of the company, was entitled to assert both his own rights as a shareholder and the rights of the second appellant as the registered owner of the immovable property in question.

6. The learned Judge erred in failing to grant an order of eviction from the property in question of the Gurupiras in favour of the company.

7. In the alternative, and in any event, the learned Judge ought to have found that there were disputes of fact which could not be resolved on the papers, and, accordingly, referred the matter to trial….,.

Counsel for the respondents also took a point in limine on the appeal by the second appellant. He submitted that legally a company could only be represented by a director and not a shareholder, which the first appellant described himself as. Accordingly, he argued that there there was no proper appeal by the second appellant before the court.

I do not intend to let this argument detain me.

The first and second respondents have been litigating with the second appellant from the onset. In documents filed by the first appellant in defence of the second appellant, the former has always referred to himself as a shareholder and director of the second appellant. The point in limine is groundless and is dismissed.

ISSUES FOR DETERMINATION ON APPEAL

Although the Gurupiras obtained an order for specific performance against Mrs Muir, which is the main issue in contention in this appeal, the starting point revolves around the issue of rescission of the default judgment of 21 May 2018.

1. In this appeal, the court has to determine the effect of the order for rescission given by MAFUSIRE J.

2. Consequent thereto is the issue as to whether Mrs Muir, following upon the rescission of the default judgment, was before the court a quo for the determination of the main application.

3. Additionally, there should be a determination as to whether the court a quo was correct in finding that the Gurupiras were entitled to specific performance. For the proper determination of this aspect on the merits, it stands to reason that Leggett and the company could only appeal if Mrs Muir was a party to the proceedings. Her absence militates against their contentions in that regard.

4. Lastly, the court had to decide whether Leggett was entitled to relief in respect of the shareholding transferred to him by Mrs Muir.

Given the issues raised in the rather extensive grounds, I have decided to deal with each ground of appeal separately ad seriatim.

AD GROUNDS 1 and 2 - WHETHER THE COURT A QUO ERRED IN FINDING THAT MUIR HAD BEEN PROPERLY SERVED, THAT, AS A CONSEQUENCE, MUIR WAS NOT BEFORE THE COURT AND HAD FAILED TO OPPOSE THE APPLICATION FOR SPECIFIC PERFORMANCE

These two grounds are interlinked as they are concerned with the same issue.

The application for the rescission of the default judgment was the sine qua non for any party seeking to oppose relief being claimed by the Gurupiras to have the leave of court to appear in opposition to such application.

As regards this issue, it was contended that the High Court had said that the issue was whether or not Mrs Muir was before the court. It was contended that due to the findings of fact made by MAFUSIRE J the court had to find that the judgment had been rescinded, thus affording her a right to oppose the relief sought by the Gurupiras.

Per contra, counsel for the respondents submitted that Mrs Muir had not appealed against the finding that she was not before the High Court. As a consequence, there was no opposition filed by her to the order sought by the Gurupiras.

The court a quo made the following critical findings;

It found that Mrs Muir had been properly served with the application. Further to that, it found that due to her failure to have the judgment granted in default rescinded as against her, she was not before the court.

The application for rescission was, on the order of the High Court, converted to a trial given the seeming myriad material disputes of fact on the papers. The witnesses called included Leggett, one Diniwe Chinyanga, L. T Nhari, a forensic documents examiner, and Thomas David Stevenson.

The last witness was appearing in his capacity as the legal practitioner of record for Mrs Muir.

Mrs Muir, however, did not launch an application for the rescission of the order made against her nor was she one of the witnesses who gave evidence before the High Court in support of the application for rescission of the default judgment.

Counsel for the appellants, Leggett and the company, submitted that the court a quo should have had regard to the evidence given to the court during the trial wherein the rescission of the default judgment was being considered.

It is pertinent to note that when the matter was heard by MAFUSIRE J, on 10 and 11 February 2014, there was only one party referred to as the plaintiff - and that was the company. Mrs Muir was cited as the third respondent in that matter. This is because the company had made the application for rescission. It cited Mrs Muir as a respondent. She did not file any papers. The judgment reflects that there was no appearance by Mrs Muir. The learned judge found that there had been no proper service of the application to compel specific performance as against Mrs Muir. He found, as a consequence, that there had not been proper service on Mrs Muir.

The critical question that begs an answer is what was before his Lordship. In other words, was Mrs Muir before his Lordship in an application for the setting aside of a judgment granted in default?

Such an application is governed by Rule 63 of the Rules of the High Court, 1971. Rule 63 is couched as follows:

“(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 sub-rule (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.

(3) Unless an applicant for the setting aside of a judgment in terms of this Rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

In my view, it was incumbent upon Mrs Muir, in the pursuit of the protection of her rights under the agreement with the Gurupiras, to apply, in terms of Rule 63, to have the judgment against her rescinded or set aside.

Even the order issued by MAFUSIRE J is of no assistance to her cause. It orders that “the plaintiff shall file its notice of opposition within ten days of the date of the order” - and it is common cause that the plaintiff in those proceedings was the company.

Notwithstanding his remarks on service, there is no order granting leave to Mrs Muir to file opposing papers. This is due to her absence from the proceedings from the beginning.

The court a quo found that, despite the presence of Mr Stevenson, who purported to act on her behalf, Mrs Muir was not before it. The court said:

“It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors Herbestein & Van Winsen - The Civil Practice of the High Courts of South Africa, 5th Ed, p437 put it this way;

'Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.'”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Mrs Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.

It is a telling assertion.

He filed the 'affidavit' without a mandate from Mrs Muir but did so due to some pressure from 'interested parties.'”

In the light of these facts, as emanating from the record, the finding that Mrs Muir was not before the court a quo is beyond impeachment.

Counsel for the appellants proceeded to argue that the finding by MAFUSIRE J, that there had in fact not been proper service of the application, was pertinent in this regard.

He contended that it could not be argued that the company and Mrs Muir could be said to have been in default, and, therefore, no order could be made against either of them.

These comments are made against the finding by the court a quo that Mrs Muir did not file an application for rescission, which finding has not been appealed against. The court stated:

“In casu, Muir has not placed any facts before this Court, either in the application for rescission or in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect.”

According to the learned authors, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa, 5ed…, Rule 31(2)(b) of the Uniform Rules of the High Courts of South Africa provides that a defendant may, within twenty days after gaining knowledge of a default judgment granted against him, apply to court upon notice to the plaintiff to set aside the judgment.

I must say that I much prefer the wording in that rule to the one in our Rule 63.

The former is clear and admits of no doubt as to who should make the application. It is the defendant.

On p715, the learned authors state the following:

“An applicant for the rescission of a default judgment must show good cause and prove that at no time did he renounce his defence, and has a serious intention of proceeding with the case. In order to show good cause, an applicant must give a reasonable explanation for the default, the application must be made bona fide and must show that a bona fide defence to the plaintiff's claim (exists).”

The contentions by counsel for the appellants, that Mrs Muir was not in default and was so found by MAFUSIRE J must, therefore, be considered in the light of the provisions of Rule 63 above.

The judgment of the learned judge in the court a quo is clear. As a consequence, when MAFUSIRE J found that the plaintiff had not been in wilful default such finding could only have related to the company. Mrs Muir never made an application for the rescission of the default judgment entered against her, and, as a consequence of such failure, the judgment, as it related to an order aimed at her personally, was not set aside. As a consequence, the setting aside of the order did not mean that she had purged her default. She had not sought an order permitting her to oppose the application filed against her.

According to the agreement of sale, the domicilium citandi et executandi was 98 Churchill Avenue. The return of service by the Deputy Sheriff stated that service had been effected at the domicilium citandi et executandi. The court a quo found that service had been effected because that is the address for service chosen by Mrs Muir in the agreement. The court stated:

“It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (1) ZLR 226 (SC).”

It is on record that she left Zimbabwe in September 2008. The documents were served in March 2008. She needed to explain why the return of service was not correct and why she had not seen the documents. There was no explanation from her. The return must therefore be accepted as correct.

In the absence of an application for rescission challenging such manner of service, a court hearing an application for rescission of a default judgment does not have the jurisdictional base to proceed and make conclusions touching on that process. It can only do so once good and sufficient cause has been established for the setting aside of the judgment. In this case there was none as related to Mrs Muir.

In the final analysis, the finding by the court a quo that the judgment against Mrs Muir was not set aside is unassailable. Grounds 1 and 2 of the appeal accordingly are without merit and must be dismissed.

AD GROUND 3 - WHETHER THE COURT A QUO ERRED IN FINDING THAT THE GURUPIRAS HAD ESTABLISHED AN ENTITLEMENT TO THE TRANSFER OF SHARES

Counsel for the appellants contended that the Gurupiras had not established an entitlement to the transfer of shares in their names.

In my view, this submission could only be made on behalf of Mrs Muir and not the two appellants.

Although Mrs Muir was adjudged not to be before the court a quo, a critical examination of the submissions, both in the High Court and this Court, will tend to show that almost all the points being raised related to Mrs Muir and her relationship with the Gurupiras. I can only say that this is an unfortunate development in the sense that, whatever the relationship between Leggett and Mrs Muir was, it was clear on the papers that counsel for the appellants appeared on behalf of the two appellants, Leggget and the company - and not Mrs Muir.

Leggett was not, and could not claim to be privy to the transaction between Mrs Muir and the Gurupiras. He concedes as much in all the affidavits deposed to by him. On that score, he is not in a position, nor would I find that he was, authorized to speak to it.

When the High Court granted the application for rescission of the default judgment, it set aside the interdict and the order for the transfer of the property to the Gurupiras. The learned judge however also ordered that the following pertinent issues be determined in the main application:

“3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part was duly performed;

3.2 Whether or not the transfer of shares in the plaintiff company (Private) Limited, by the third defendant to one John Leggett, should be set aside;

3.3 Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare;

4 The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order and thereafter the filing of any further documents shall be in accordance with the Rules.”

Pursuant to this, on 2 November 2009, the Gurupiras filed a counterclaim in which they sought an order for the setting aside of the transfer of shares in the company from Mrs Muir to Leggett. Concomitant with that prayer was a prayer for the transfer of those shares to the Gurupiras.

I note that at the commencement of the hearing in the court a quo counsel for the respondents moved an application for the amendment of the draft order on behalf of the Gurupiras.

The court a quo recorded that the application was granted with the consent of both counsel for the appellants and Stevenson. This is what the court said:

“On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr de Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted.”

The granting of the application to amend the draft order disposed of the point taken by the company and Leggett regarding the competency of the order sought by the Gurupiras.

The coming into the picture of Leggett did not, in my view, change the substance of the agreement between Mrs Muir and the Gurupiras. The latter purchased the two issued shares that Mrs Muir had in the company. The purchase of those shares bestowed rights upon them. According to the agreement, they were entitled to certain rights in the immovable property owned by the company. The pertinent paragraphs of the agreement are set out hereunder and read:

“C. The authorized share capital of the Company is divided into 32,000 (thirty-two thousand) ordinary shares of $1.00 each, of which authorized share capital 2 (two) ordinary shares (the shares) have been issued as follows:

SANDRA MAUREEN MUIR 2 CERTIFICATE No 1 & 3. She being the sole beneficial owner thereof;

D. The said shares confer on the holders thereof an exclusive right of occupation and use of the property;

E. The parties warrant that at the date of execution hereof and at the date of payment in terms of clause 2 of this agreement they are and they will be residents of Zimbabwe;

F. The purchaser warrants that he is using Zimbabwe dollars;

G. The seller is desirous of selling the shares, which shares confer on the holder hereof the exclusive right of use and occupation of the property and the improvements thereupon;”

From a perusal of these pertinent clauses in the agreement, the purchase by the Gurupiras of the two issued shares at the time of the sale entitled them to the exclusive use and occupation of the immovable property owned by the company. There was no novation of the agreement. There was no evidence that the agreement was ever cancelled. If it was, Mrs Muir did not choose to establish such fact before the court a quo. This she was obliged to do in order to oppose the claim for specific performance brought against her by the Gurupiras.

As matters stand, that application was unopposed.

In disposing of this issue, the court a quo stated that no evidence had been placed before it to controvert the assertion by the Gurupiras that they had complied with their obligations in terms of the agreement. Also, the learned judge in the court a quo found, as a fact, that no evidence had been placed before the court that the agreement had been cancelled.

I have to agree.

It is also pertinent to note that there was no appeal against these findings of fact which are themselves critical as to the determination of the respective rights of Mrs Muir and the Gurupiras in the claim for specific performance. Instead, the appellants placed reliance on findings of fact made during the application for rescission of judgment. Those findings of fact, which did not include evidence from Mrs Muir, cannot be binding in this instance.

In the initial application filed under Case No. HC1393/08, the Gurupiras sought an order for the transfer of the immovable property to themselves. An order for the transfer of the immovable property to the Gurupiras affected the rights of the company in the immovable property and the company was within its right in approaching the court for the reversal of that order. Leggett called witnesses to testify and they could only testify on behalf of the company - but not on Mrs Muir's behalf. In everything he did, Leggett purported to act for the company. The substantive relief, premised on the sale of shares, contained in the draft order, was against Mrs Muir, the Registrar of Deeds and the Sheriff. Clearly, in the circumstances, they had no business testifying on matters not within their personal knowledge.

This ground has no merit and is accordingly dismissed.

AD GROUND 5 - WHETHER THE COURT A QUO SHOULD HAVE FOUND THAT THE FIRST APPELLANT WAS THE SOLE REGISTERED OWNER OF THE SECOND APPELLANT

The contention made in respect of this ground was to the effect that Leggett did not transfer his shareholding. The allotment to him of the ninety-eight shares was done in December 2007 and this fact had never been challenged. He had also purchased the two shares that had been sold to the Gurupiras. It was contended, further, that the Gurupiras had never claimed to have purchased more than two shares.

On the other hand, it was contended on behalf of the Gurupiras that the agreement between Mrs Muir and the Gurupiras was never cancelled. It was argued that the agreement had come to life and that a term in an agreement that provides that it has automatically lapsed is not in sync with the law. It was contended, further, that Mrs Muir had accepted payment after the period wherein she claimed that the agreement had lapsed. To that end, she was bound by the agreement.

The agreement with the Gurupiras was executed on 25 May 2007. In the preamble thereto, in particular in paragraph C, Mrs Muir is described as the sole shareholder of the two issued shares. The certificate numbers are described.

Thereafter, two agreements were concluded with Leggett. In the first of the agreements, dated 11 December 2007, Mrs Muir is described as owning two shares, and, as a consequence, her position as the sole shareholder is confirmed. This agreement is concerned with the proposed allotment of ninety-eight shares to Leggett.

According to the affidavit filed by Leggett on 22 August 2008, on behalf of the company, the return of allotment was filed with the Registrar on 30 May 2008. Surprisingly, on 27 May 2008, an agreement of sale is executed between Ramon Charles Muir, Sandra Maureen Muir and Leggett. In terms of the said agreement, the first two sell the entire shareholding in the company to Leggett. This development is in direct contradiction to the averments made in an affidavit filed on behalf of Mrs Muir in which she states:

“I left Zimbabwe in September 2008 to settle in Israel. The company always had an authorized share capital of 32,000 ordinary shares. Up to November 2007 only two of those shares had been issued. Originally, one share each was issued to myself and one to my late husband, Ramon Charles Muir. However, on the 8th of November 2006, the share in the name of my husband was transferred into my name.”

In my view, this statement by Mrs Muir suggests that as of 25 May 2007, when she concluded an agreement with the Gurupiras, she was the sole shareholder of the two issued shares in the company. This position is also confirmed in the memorandum with Leggett in which the allotment of the ninety-eight shares was concluded. She however made averments in another affidavit, deposed to on 6 December 2007, which contradict the averments in the aforementioned affidavit and the agreement executed on 11 December 2007 on the allotment of shares.

In this affidavit, deposed to on oath on 6 December 2007, Mrs Muir states:

“My husband has indicated to me that he will not pass transfer of his share on the basis of the applicant's claim. This is understandable as it is inconceivable that any seller would give a purchaser six months in which to pay a purchase price fixed in Zimbabwe dollars in the presence of the hyperinflation and the rapid loss in the value of local currency already being experienced at the time of the true and fictional agreements.”

The allotment was effected on 11 December 2007.

The agreement in which Mrs Muir and one Ramon Charles Muir dispose of one hundred shares in the company to Leggett is executed on 28 May 2008. Mystery surrounds the participation of Ramon Charles Muir in this debacle. In December 2007, Mrs Muir indicated, on oath, that her husband had refused to transfer his share to the Gurupiras; and yet, this is the same share that she says was transferred to her in 2006. The circumstances of the transfer are shrouded in mystery.

Could it be possible, as contended by counsel for the respondents, that at the time of transfer in 2006, he was already deceased?

However, there is no record that the company authorized the issuance of an additional ninety-eight shares. The allocation to Leggett appears to hinge on a process that has not been specified. There is no resolution from the directors of the company authorizing their issuance. In the absence of such a resolution, where did they come from? It then begs the question as to whether or not the agreement with Leggett was in fact ever concluded or whether it was a mere sham.

I turn now to the contention that the court a quo ought to have found that Leggett was entitled to assert his rights as the sole shareholder of the company.

On 25 February 2015, the High Court ordered that Leggett be joined as a party to the proceedings under appeal. The order enjoined him to file a notice of opposition if he so wished. On 2 March 2015, he duly filed his notice of opposition. He also referred to the averments made by him in the application for rescission of judgment as well as the counter application. I have noted, however, that at no point during the protracted proceedings did Leggett file a draft order seeking specific relief against the Gurupiras. All the orders filed of record relate to the Gurupiras or the company. The declaration filed subsequent to the referral of the matter to trial for purposes of rescission only reflects one plaintiff - the company. There was never any attempt to amend the pleadings even after his joinder.

In addition, there was no relief claimed by Leggett against the Gurupiras.

When the court granted rescission at the instance of the company, the issues referred for determination on the merits were as follows;

(a) Whether the Gurupiras and Mrs Muir had performed their obligations in terms of the agreement;

(b) Whether or not the transfer of shares to Leggett should be set aside; and, lastly

(c) Whether the Gurupiras should be ordered to vacate the immovable property.

Apart from the transfer of shares, no other issues relating to any rights attaching to Leggett were recorded. Consequently, absent a prayer by a party claiming specific relief from the court, a court cannot be criticized for not having given an order in favour of such party.

AD GROUND 6 - WHETHER THE COURT A QUO SHOULD HAVE ORDERED THE EVICTION OF THE GURUPIRAS FROM THE PROPERTY

The absence of Mrs Muir from the proceedings left Leggett in a quagmire. The agreement of sale gave the purchasers the exclusive use and occupation of the immovable property. The agreement was not cancelled. The Gurupiras produced documents showing payments. Mrs Muir acknowledged having received some of the payments. However, she did not herself participate in the proceedings and the parties called to court were not there as her witnesses but for the company.

In the absence of a challenge to the contention by the Gurupiras that they complied with their obligations under the agreement, the court a quo had no option but to grant specific relief as prayed. As against this, an order for their eviction would have been unsustainable.

In any event, the order for the eviction of the occupants of 98 Churchill Avenue was issued by the Magistrates Court and was still extant. It has not been set aside.

Once the court a quo found that the Gurupiras were entitled to specific relief, the company could not counter-apply. It was not privy to the agreement between Mrs Muir and the Gurupiras. Even though it owned the immovable property - rights for its use and occupation had been conveyed through the purchase of shares in the company. The property itself was not the subject of the agreement of sale.

The last ground, ground number 7, speaks to disputes of fact.

Only Mrs Muir could make this argument. Neither the company nor Leggett, not having been privy to the agreement between the parties, could claim that there were disputes of fact. Once it was found that Mrs Muir was not properly before it, the court a quo could not be enjoined to find that any material disputes of fact existed.

DISPOSITION

In the premises, none of the grounds have merit. The appeal is accordingly dismissed with an order that Leggett, the first appellant, pays the costs of suit.

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.

I have to examine the points in limine first to decide whether they dispose of the matter without dealing with the merits of the application.

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.

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent's affidavit (Minister of Mines and Mining Development) aims at clarifying issues, he says. He acknowledges that the respondents' appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties' dispute to him. He confirms that the Disputes Committee is seized with the parties' case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant's statement, which is to the effect that it acquired mining rights of Makaha in 2012, cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent (Minister of Mines and Mining Development), showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashonaland East Province for resolution. The Director works under the supervision of the fourteenth respondent. The dispute which, in earnest, was between the applicant and the fourth respondent was decided in the applicant's favour.

The Director's ruling, which is dated 25 October 2016, reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) Ltd has no legal right over mining claims registered in favour of Prosper Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute….,. Milmath Securities should be allowed to work…,.”…,.

It is the statement of the applicant that the decision of the Director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It therefore moves the court for their eviction from the same.

The decision of the Director should, in my view, be read in its proper context.

An effortless reading of the same shows that the Director acknowledged the fifth respondent's title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth (Proper Machekera), and not the fourth (Earthrow Investments) respondent has title in Makaha.

It is for the mentioned reason, if for no other, that he stated that the fourth respondent (Earthrow Investments) has no legal right over mining claims which are registered in favour of the fifth respondent (Proper Machekera).

He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the Director's records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent (Proper Machekera). The fourth respondent (Earthrow Investments) does not.

It was by way of comparative analysis that he remained of the view that when the fourth respondent's case is compared with that of the applicant, the latter entity, which has title in Makaha, was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the Director's decision should be understood....,.

The applicant has real rights in Makaha. The fifth respondent does also have real rights in the same. The remaining respondents who teamed up with the fifth respondent whose rights the Director recognized in his ruling do, through him, have some rights in Makaha.

Whether or not the respondents, the fifth respondent in particular, suffer(s) forfeiture of Makaha remains a matter for another day. The issue of the alleged forfeiture can only be resolved through viva voce evidence. That is so because the respondents contest the same in a very emphatic manner. They describe the alleged forfeiture as having been of no force or effect. Their reason is that it was irregularly implemented. They challenge the applicant's certificate of registration for Makaha. They state that the certificate is a fraud on the part of the person or official who issued it in the name of the applicant.

There are, in my view, material disputes of fact in the parties' case. The fourteenth respondent states as much. He is seized with the parties' dispute which he will determine after he has received the recommendations of the Disputes Committee which he set up to investigate the parties' competing claims of Makaha.

It goes without saying that neither party has a better claim to Makaha than the other. Their claims are equal in competition one against the other. The court cannot, in the circumstances, grant the application.

The applicant failed to establish its case on a balance of probabilities. Its application is without merit. It is, accordingly, dismissed with costs.

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 instituted the present proceedings in a bid to evict the respondent and repossess Stand Number 9919 Phase 3 Kuwadzana, Harare.

The respondent opposed the application on the basis that the applicant was not married to the deceased, one Junerose Phosa, and, as such, not entitled to inherit the deceased's half share in the property. The respondent further argued that the property in question, Stand Number 9919 Phase 3 Kuwadzana was not matrimonial home and that the applicant was not residing there, and, as such, could not inherit the property in terms of section 68F(2) of the Administration of Estates Act.

The brief background to this application has to be put into perspective.

The applicant was customarily married to one Junerose Phosa in 1986, per evidence filed of record. In 2000 the applicant and the deceased purchased a residential Stand, 9919 Phase 3 Kuwadzana, Harare. The property was duly registered in both their names; Annexure A refers, Deed of Transfer number 3230/2000.

In April 2010 the applicant's wife passed on and the applicant was appointed the Executor of the deceased estate per Letters of Administration by the Master of High Court. As a surviving spouse, the applicant was awarded half share of his wife's share and thus registered the said property in his name per Annexure B31/2014 transfer in terms of the Deceased Estates Succession Act [Chapter 6:02].

The respondent is a step grand-daughter to the applicant, in that she is a daughter of the late Junerose Phosa's daughter, one Violet Posi.

The applicant's claim is based on the common law remedy of rei vindicatio. The applicant, as the owner of the property, is entitled to recover his property from whoever may possess without his consent. The applicant, by virtue of being the registered owner, would have locus standi to vindicatio.

Our law is settled that an applicant seeking to rely on rei vindicatio must prove that;

1. He is the owner of the property.

2. That, at the institution of proceedings, the thing or property sought to be vindicated was still in existence and the respondent was in possession.

3. That the respondent's possession is without his consent or respondent has no right to retain possession of the property.

The cases of Unimark Distributors (Pvt) Ltd v EFR 94; Silverstondale (Pvt) Ltd 1999 (2) SA 986; and Stanbic Finance Zimbabawe v Chivhunga 1999 (1) ZLR 262 are instructive.

In Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 the court remarked;

“The owner may claim his property whenever 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. 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.”

I fully subscribe to the sentiments by the court in that case.

Once the applicant establishes he is the owner and that the property exists which the respondent is holding on to or possessing without consent or trespassing then he ought to have his rights restored.

In casu, it is evident the applicant has always enjoined ownership of the property in issue with his wife through sharing as both their names were registered per the initial title deed. Upon the death of his wife, following the registrations of the estate and his appointment as executor, the applicant became the sole owner of the property in question per the current title deed.

It is not in dispute that registration of rights in immovable property, in terms of the Deeds Registries Act [Chapter 20:05], passes real rights upon the individuals in whose name property is registered; Chapenyama v Chapenyera 2000 (2) ZLR 103 (S) underscored that registration of title conveys real rights.

The applicant in this case has the property registered in his name and that title deed is prima facie evidence of his ownership of the property. The applicant is, further, the surviving spouse of Junerose Phosa, and, as such, a recognised beneficiary under the Deceased Estate Administration Act [Chapter 6:01].

Even if the respondent's argument that the applicant, at the time of the death of his wife, was not staying at the matrimonial home, he cannot be stripped of his beneficiary rights. Section 68(F)2(d) of the Administration of Estates Act [Chapter 6:01] reads:

“Where the deceased person is survived by one spouse and one or more children, the surviving spouse should get;

(1) Ownership of, or, if that is impracticable, a usufruct of the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house; and

(2) A share in the remainder of the net estate determined in accordance with the Deceased Estate Succession Act [Chapter 6:02].”

This section should not be read in the abstract to mean a spouse will be disinherited because he or she was not in the matrimonial house for one reason or the other at the time of death of the spouse. The legislative intention to protect surviving spouses in a polygamous situation should not be ignored and misconstrued in the manner projected by the respondent. Interestingly, it should be noted the respondent is not a surviving spouse or child of the late wife of the applicant.

Further, the respondent's possession of the property in question is not with the consent of the applicant. The respondent has no right to retain possession of the property for she has no legal basis for such retention. Her claims of hold over being that her grandmother, the late wife of the deceased, claimed 50% share which should have passed on to her mother has no legal standing given the applicant, as a surviving spouse, is entitled to inheritance when the spouse died intestate. The fact that the respondent's mother is a daughter to the applicant's wife does not change the applicant's entitlement as a surviving spouse and equally it does not clothe the respondent in casu with retention or contractual rights over the applicant who has real rights over the property, and who, further, is a surviving spouse entitled to inherit from the estate of his late wife.

It is clear from the foregoing that the applicant, who is the owner of the property in question, is, without consent, being deprived of his property by the respondent which has no legal basis to claim retention of the property.

There is no merit in the respondent's opposition of the applicant's relief. It is clearly calculated with mala fides in a bid to prolong unlawful stay at the applicant's property. The applicant, being the owner of the property, has clearly shown that he is entitled to the relief sought.

Accordingly, it is ordered that:

1. The respondent and all those claiming occupation or possession through her are hereby ordered to forthwith vacate Stand Number 9919 Phase 3 Kuwadzana and restore undisturbed and peaceful possession to the applicant.

2. To the extent that it becomes necessary, the Deputy Sheriff is hereby authorised and empowered to attend to eviction and removal of any person claiming occupation or possession through the respondent. Pursuant thereto, the Deputy Sheriff be and is hereby authorized to enlist the assistance of Zimbabwe Republic Police who are hereby directed to provide such assistance to the Deputy Sheriff so as to ensure that provisions of this order are executed and implemented.

3. The respondent shall pay the costs of the suit.

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.