HUNGWE
J: This
matter was initiated as a court application by the present plaintiff.
Upon hearing argument, the court ordered that the papers filed in the
court application stand as pleadings and matter proceed to discovery
in the normal way.
The
papers show that at the pre-trial conference stage, four issues were
identified for trial. These are:
(a)
Whether or not the respondent obtained possession of the Toyota
Hi-lux motor vehicle registration number 424-562 E from the applicant
without authority or permission;
(b)
Whether or not respondent promised to return this motor vehicle to
the applicant by delivering it to the offices of the Zimbabwe Mining
Development Corporation as alleged on behalf of applicant;
(c)
Whether or not there was a sale of the Toyota Hilux motor vehicle
and, if so, whether the sale was to the respondent or to a company
called Hoeramar Enterprises;
(d)
Whether the aforesaid Toyota Hi-lux motor vehicle is no longer in the
possession of the defendant;
(e)
The value of the aforesaid Toyota Hilux motor vehicle at the time the
defendant obtained possession of it.
At
the commencement of trial the respondent took four points in
limine.
(i)
The first point was whether the Chairperson of the Zimbabwe Mining
Development Corporation (“ZMDC”) Board of directors has the
authority or jurisdiction to act on her own initiative without a
board resolution to set up a commission of inquiry to look at the
affairs of a separate and different entity altogether.
(ii)
The second point was a challenge to the authority by virtue of which
the present action was launched, since according to the respondent,
the applicant had not authorised the launching of the inquiry and
therefore there was no authority for the launching of these
proceedings.
(iii)
Thirdly, the respondent queried the powers of a commission of inquiry
to operate outside its terms of reference. Since the terms of
reference did not empower the commission of inquiry to delve into the
disposal of motor vehicles, then, if it considered that as within its
terms of reference, that commission of inquiry acted ultra
vires
its terms of reference.
(iv)
Finally, the respondent took the point that where correspondence had
been ruled “without prejudice” it cannot be relied upon in
subsequent proceedings.
After
hearing the respondent as well as Mr Phillips,
on the preliminary points I directed that the matter proceeded to
trial and my ruling on these points will be made apparent in the
judgment.
I
wish now to set out the reasons for the order which I gave then.
A
point in
limine
is motion moved by one of the parties to litigation at the very
beginning of proceedings aimed at usually pulling the rug from under
the feet of other party, so to speak. In
limine
motions are designed to facilitate the management of a case generally
by deciding difficult evidentiary issues in advance of a trial. The
normal purpose of such motions is to preclude the presentation of
evidence deemed inadmissible and prejudicial by the party moving the
motion. Although trial courts may exercise their inherent powers to
permit non-traditional uses of motions in
limine,
when used in such a fashion these become substitutes for other
motions thereby circumventing procedural protections provided by
trial on the merits.
They
risk blindsiding the other party and in some cases they could
infringe a party's right to a trial.
They
are difficult applications to succeed upon as the trial judge at that
stage will not yet have much context to rule on admissibility of
evidence. Thus, in the words of JUSTICE CONLON of the United States
District Court in Hawthorne
Partners v AT & T Technologies Inc and ENSR Corporation,
831 F 831 Supp 1398 (1993);
“Unless
evidence meets this high standard, evidentiary rulings should be
deferred until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in proper context.
Denial
of a motion in limine does not necessarily mean that all evidence
contemplated by the motion will be admitted at trial. Denial merely
means that without the context of trail, the court is unable to
determine whether the evidence in question should be excluded. The
court will entertain objections on individual proffers as they arise
at trial, even though the proffer falls within the scope of a denied
motion
in
limine.”
The
point raised by defendant should or could have been the subject of an
exception.
It
is purely a procedural question whether the determination of such
points as raised in
limine
in trial proceedings should be described as an exception or the
hearing of argument on a point of law or a point in
limine
(see Rule 152 of the High Court Rules 1971).
Trial
proceeded on the basis that the supporting and answering affidavit
filed in the court application stood as pleadings. Dominic Mubaiwa,
who deposed to same, adopted these as his evidence-in-chief before he
was cross-examined.
In
these, he points out that he is the Group Chief Executive Officer of
ZMDC. The plaintiff company is a subsidiary of ZMDC.
As
the Group Chief Executive Officer of the ZMDC, he is a non-executive
director and member of the board at the plaintiff company.
The
executive director at the plaintiff is appointed by the ZMDC board as
the holding company. In that capacity he is authorised to depose to
the affidavits in connection with the present matter.
The
records of the applicant show that the defendant (respondent)
obtained possession of a Toyota Hi-lux motor vehicle registration
number 424-562E from the plaintiff (applicant) when he was the
non-executive Chairman of the applicant without permission or
authority. Sometime in December 2004, respondent had promised, orally
and in writing, to return this motor vehicle by delivering it to the
offices of ZMDC in Harare.
By
the time the court application was launched he had not done so
pleading that the motor vehicle was now a non-runner and needed tyres
and that he had no resources to tow it to Harare.
The
respondent has no excuse for not handing over the motor vehicle.
The
applicant therefore seeks an order compelling him to restore the
motor vehicle into its possession.
Mubaiwa
particularly relied on correspondence addressed to the respondent by
the applicant's legal practitioners dated 24 December 2004 in which
the following appears;
“We
confirm having discussed the entire matter with you and indicated to
you that in our view the application is without merit but more
importantly that any public debate of the contents of the application
and the response of our clients to it particularly at the High Court
would be most damaging to your reputation and is to be avoided. With
this in mind we have discussed with yourself the settlement of this
matter on the following basis:
“1.
That you will withdraw your Court Application and if such a
withdrawal occurs before our clients file any opposing papers we will
advise our clients not to seek any costs from yourself;
2.
That you will undertake to pay repairs for the T35 truck which as you
have accepted was utilised by yourself at least on one occasion
without the permission of Mhangura Copper Mines Limited. In this
connection you have queried the estimated cost of repairs but of
course the quantum will only be known once the repairs are completed.
If you are unhappy with the amount then a court will have to settle
any dispute arising there from.
3.
That you will return the Toyota Hilux motor vehicle in the view of
our client was acquired by yourself as opposed to a company in which
you have an interest, irregularly and without the observance of any
appropriate tender system. In this connection you have stated that
you are prepared to return the motor vehicle in question but have
carried out certain repairs to it and had vehicle parts affixed which
you would like to remove. As indicated to you Mhangura Copper Mines
remains the owner of this motor vehicle and it must be returned to it
either in the condition in which it was when you removed it (which we
believe will be almost impossible) or its current condition and then
be examined by an independent repairer to determine the extent to
which its value has been enhanced by any repair work undertaken by
you or on your behalf.”
Subsequent
to this correspondence, applicant's legal practitioner penned yet
another communication to the respondent on 7 January 2005 in the
following terms:
“We
refer to the above matter and to our letter to you of 24th
December 2004 and also to out telephone discussion this morning.
We
confirm that you have now agreed to deliver to the offices of the
Zimbabwe Mining Development Corporation in Harare the Toyota Hilux
motor vehicle registration number 424-562E in its current condition.
Delivery will be effected no later than Wednesday the 12th
January 2005. Our client will then have it examined by an independent
third party in order to determine the issues previously discussed
with you.”
The
respondent replied to these two letters by way of a letter dated 12th
January 2005.
In
it he raises the point that discussions held with Mr Mahlangu of the
applicant were on a “without prejudice” basis and cannot
therefore be used in legal proceedings.
Secondly,
he takes issue with the allegation that he had been using the Toyota
Hilux for his benefit stating that he in fact has his which
comparably is in a better state of repair than a 22-year old shell.
He
states in that letter that the only outstanding issue between him and
applicant was the proof of payment for the Hilux.
Since
he can prove that he paid for the same therefore ownership passed to
him. It no longer belongs to the applicant.
He
takes issue with reference to the Toyota Hilux as a runner since
according to him it as a shell. He however goes on to state that as
soon as he secures tyres for this non-runner he will tow it to ZMDC
office in either Harare or Alaska.
When
the respondent deposed to his opposing affidavit three months later,
he changes his position regarding whether he had the motor vehicle in
question or not.
He
states in the opposing affidavit for the first time that the Toyota
motor vehicle has never been in his possession but in the possession
of the person to who it was properly sold.
When
he gave his evidence in court during trial he revealed for the first
time that the motor vehicle was bought by a company called Hoeramar
Enterprises.
He
claims that he never freely agreed to return this motor vehicle. He
had however been threatened with incarceration by applicant's legal
practitioner, Mr Mahlangu over this particular motor vehicle out of
sheer malice. This had induced him to make undertakings regarding the
vehicle.
At
the time of the alleged telephone conversations with Mr Mahlangu,
respondent's father had been sick. Under threat of arrest and
incarceration, he had proceeded to the premises of the company which
held the motor vehicle and forcefully took possession of it to avoid
imprisonment. He had however failed to deliver it to the applicant
since it had no tyres.
In
his closing submissions respondent relied on the points he raised in
limine.
On
the facts, it is clear that the motor vehicle was registered in the
name of the applicant company.
Once
it is accepted that the deponent to the supporting affidavit was the
Group Chief Executive Officer and that he expressly stated that he
was authorised to depose to the affidavit, it seems to me artificial
to argue that he was not entitled to vindicate his company's
property especially where the person holding it has no title to it.
There
is no need to consider the issue whether there was a resolution
specifically enjoining a commission of inquiry to probe the disposal
of the motor vehicle. That vehicle was never subject of disposal.
Even if it was, it was improperly taken by the respondent.
As
for the “without prejudice” correspondence, it is pertinent to
note that applicant discovered these in its notice of discovery. In
any event the correspondence did not amount to negotiation but a
record of settlement to which the parties had orally agreed. The
respondent's letter of 12 January 2005 was not captioned “without
prejudice” and was in any event not relied upon by the applicant.
I
am satisfied that the reliance on the two letter was appropriate and
relevant to the determination of the issues at stake. No prejudice
was suffered by the respondent since these were discovered. He did
not deem it fit to protest their use.
The
claims against Mr Mahlangu forced Mr
Phillips
to call him to refute the same after the respondent had closed his
case.
Initially
Mr Mahlangu remained composed as he narrated the chronology of events
leading to this trial. He was at pains to demonstrate how his concern
for the need by the respondent to keep his integrity intact stretched
his client's patience with him. He tried everything to avoid the
matter go to court. The respondent would have none of that. He would
make undertakings which he ignored at will. Despite the ease with
which the matter could have been resolved, the respondent kept
changing his position thereby forcing applicant to seek recourse in
the courts.
The
respondent was a poor witness for his case.
Had
he heeded Mr Mahlangu's advice to engage another person to appear
for him, he would have saved the little of his integrity that
remained.
The
respondent is a lawyer with several years of practice behind him. He
runs his own law firm and, I assume, supervises professional
assistants under his charge.
This
was not reflected in this case.
He
behaved like the common and run of the mill lying litigants. Mr
Phillips
had a field day during cross-examination.
He
could not reconcile his own versions of the events. He ended up
admitting that he could be the one lying rather than Mr Mahlangu.
From
the beginning the respondent did not maintain the ethical behaviour
of a legal practitioner towards a fellow practitioner. Had he done
so, he would have seen the need to reciprocate the good will shown
him by Mr Mahlangu and avoided playing the victim of board-room
battles.
If,
for example, this motor vehicle was a shell as he claims, why then
did he take it in the first place since he had his own newer one?
In
any event, if his possession was lawful as he says why agree to
return it to the applicant in the December 2004 conversation with
applicant's legal practitioners?
His
different versions as to whether he had it or not point to only one
conclusion which is that he had the motor vehicle unlawfully.
I
am not persuaded by the claim that his company had lawfully acquired
it. Had this been the case then all the more reason why he should
have stated his position to be so from the outset. In his own words,
he had only to clear the outstanding issue of proving that he had
paid for it. He failed to do this in the board-room, to Mr Mahlangu
and the day he appeared in court.
His
claim that there was an admission that there had been payment cannot
be believed. Mubaiwa demonstrated that the person had released the
motor vehicle on the assumption that there had been payment at Head
Office in Harare. There was no such payment. The respondent, being a
senior legal practitioner, knows how to prove issues in dispute.
It
is trite that in a vindicatory action, the plaintiff must prove that
he is the owner of a clearly defined asset and that the defendant was
in possession of it at the commencement of the action. The defendant
then has the onus of proving a right of retention. To succeed, the
plaintiff must prove that he is the owner of the property and that
the defendant took possession of it but disposed of it before the
action. See Jolly
v A Shannon and Anor
1998 (1) ZLR 78 (HC).
The
principle on which the actio
rei vindicatio
is based is that an owner cannot be deprived of his property against
his will and that he is entitled to recover it from any person who
retains possession of it without his consent. Once ownership has been
proved its continuation is presumed. The onus is on the defendant to
prove a right of retention: Chetty
v Naidoo
1974 (3) SA 13 (A) at 20A-C; Makumborenga
v Marini
S-130-95.
In
the present matter I am satisfied that the applicant has proved its
ownership of the motor vehicle in question. On the other hand I am
equally satisfied that the respondent failed to prove his contested
claim that he had paid for the motor vehicle or that another entity
in which he had interest had paid.
The
fact therefore remains that as Chairman he had unlawfully used the
position to acquire the assets of the company without following
proper procedure.
The
paper trail on the Toyota Hilux only reflected that it was released
to the respondent. It betrayed the absence of good cause for the
release. His contradicting explanations did not detract from the fact
that he had no right to hold on to this motor vehicle without the
permission of its owner.
Disposition
1.
The respondent obtained possession of the Toyota Hilux motor vehicle
registration number 424-562E without the applicant's authority or
permission.
2.
The respondent promised both orally and in writing to return the said
motor vehicle by delivering it to the offices of ZMDC either in
Harare or Mhangura.
3.
There was no sale to either the respondent or Hoeramar enterprises.
The respondent has the motor vehicle which he continues to unlawfully
hold on to.
4.
The applicant is therefore entitled to the order it seeks with costs
on a higher scale.
Gill,
Godlontons & Gerrans,
applicant's legal practitioners
Muskwe
& Associates,
respondent's legal practitioners
