ZIMASCO (PVT) LIMITED

versus

FARAI MAYNARD MARIKANO

 

 

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 11 March 2010 & 21 July 2010

 

 

            MTSHIYA J: This is an opposed application wherein the applicant seeks the following relief:-

“1        Respondent shall within two hours of the service of this order on him restore the following property to the applicant;

 

1. Mitsubishi Pajero 3.0 Registration Number AAV-5956;
2. laptop HP Compaq 6720;
3. Cellphone Samsung D880

 

1. The cost of this application shall be borne by the respondent”.

 

The relief sought arises from the fact that upon termination of employment the

respondent retained the applicant’s property which is being claimed in the relief quoted above.

It is common cause that prior to 18 September 2009 the respondent was employed by the applicant as its Health Services Manager. The respondent’s employment was terminated on grounds of ill-health through an internal memorandum dated 18 September 2009. The memorandum reads as follows:-

“I acknowledge receipt of your memo dated 15 September 2009 including medical reports from your doctor (Mr Macheka) and some clinical psychologist (Mr Broomberg).

 

The letter from Mr Macheka is very clear in stating that your ill-health is such that you will not be able to resume your job after the legally stipulated one hundred and eighty days. Mr Macheka states clearly, in reference to yourself that:-

           

‘he needs more time off work for a full resolution of his injuries though at this point one cannot state a definite time-frame and will depend on future reviews and assessment in 2 months time’

 

You have now exceeded your maximum sick leave in one year period of service (that is, from 11 March 2009 to 14 September 2009). It leaves the company with very little option, therefore, than to terminate your contract of employment forthwith (that is, with effect from 18 September 2009) in accordance with s 14(4) of the Labour Act [Cap 28:01].

 

Please note that due to your failure to obtain your doctor’s certificate by 17 July 2009 as had been instructed and as re-iterated in previous communication to you, you have forfeited your chance of being terminated through the company’s medical boarding process.

 

Your are thus instructed to surrender all company assets in your possession to the General Manager Shurugwi not later than close of day on Monday 21 September 2009. For avoidance of doubt the said assets include the company PAV, laptop, cellphone and line. Failure to surrender the said company assets will result in the company instituting any legal process necessary to recover any such assets.

 

Your terminal benefits, which include any outstanding salary and leave days up to 18/09/09 will be deposited into your account provided an exit form has been duly completed clearing you of any outstanding liabilities to the company. Your pension benefits from both the Zimasco Pension Fund and NSSA will be processed in the normal manner”.   

 

            Paragraph 6 of the above memorandum refers to the property that the applicant wants the respondent to return to it. The respondent admits that the property belongs to the applicant but refuses to release the property on the ground of unfair dismissal.    

            In his opposing affidavit the respondent states as follows:-

            “1.       I wish to raise a point in-limine. It is common cause that on 9 October 2009, I

instituted proceedings in the Labour Court challenging applicant’s decision to terminate my employment contract summarily, see copy of proof of service and copy of the application of review and appeal attached hereto marked annexures (A), (B) and (C).

 

2.         It is common cause that those proceedings are still pending and have not been disposed of.

 

1. There is, accordingly, a litigation pending between the parties on the same cause of action and in respect of the same subject matter in the Labour Court and this honourable court should decline to exercise its jurisdiction as this is purely a labour matter which should be dealt with and has been properly placed before the Labour Court”.

 

The respondent further declares: ‘I will state that I am in possession of the items

pending the settlement of the matter as stated in above Ad Para 3’. The respondent therefore urged the court to dismiss the application.

            In his submissions, Mr Ncube, for the applicant, stated that the applicant had satisfied the requirements for an action for vindication. This, he said, was largely so because the applicant himself admitted that the assets he was in possession of belonged to the applicant.

            It was submitted that, notwithstanding the provision of s 89(6) of the Labour Act [Cap 28:08] (“the Act”), there was no pending matter in the Labour Court relating to an employment dispute between the applicant and the respondent. That being the case, it was argued, the respondent’s plea of lis alibi pendens was misplaced. The undisputed fact was that the applicant’s application was filed on 8 October 2009 while the respondent’s review application/appeal in the labour Court was filed on 9 October 2009.

            It was therefore the applicant’s contention that for the special plea to apply there must have been an appeal/application already pending in the Labour Court. It was further stated  that even if such an appeal/application were pending, the court had a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens. In the exercise of that discretion the court would have regard to the equities and the balance of convenience in the matter. In casu the applicant’s argument was that, with the respondent’s contract of employment having terminated on 18 September 2009, it wanted its assets restored for the advancement of its business activities. The respondent had no right to hold onto the assets.  

            It was further submitted that the subsequent action placed before the Labour Court by the respondent was based on an allegation of an unfair labour practice on the part of the applicant. However, in casu the applicant was seeking relief based on actio rei vindication. The matters before the courts, according to the applicant, were therefore not based on the same subject matter. That being the case and based on its ‘full original civil jurisdiction over all persons and over all matters within Zimbabwe’, it was argued, this court had jurisdiction to entertain the application unless that jurisdiction is clearly ousted in terms of legislation. The Labour Court, it was argued, as a special court, only dealt with matters provided for in the Act. There was no provision for an application for vindication in the Act. This court therefore had the jurisdiction to deal with such an application, it was submitted.  

            In his supplementary Heads of Argument filed on his behalf by Messrs Chikumbirike and Associates the respondent argued as follows:-

“1.1.    The applicant, through this application, seeks the restoration of certain property that is in the respondent’s possession consequent upon the employment relationship that subsists between the parties.

 

1.2.      It is common cause that there is an ongoing labour dispute between the parties herein, in which the respondent has made an application, to the Labour Court, for a determination of his dismissal as having been unfair.

 

1.3.      It is also common cause that the application made by the respondent in the Labour Court, falls within the ambit of the provisions of s 89(1) of the Labour Act, more particularly s 89(1)(a).

 

1.4.      It also follows therefore, that the provisions of s 89 (6), quoted above, apply to this matter. While the application made herein is one for the restoration of the assets in the respondent’s possession as a consequence of his employment, that issue cannot be related to in isolation from the main application made by the respondent in the Labour Court, which application has the potential of disposing of the whole issue once and for all

 

1.5.      ………..”

 

            Relying on Zimtrade v Malord Makaya HH 52/2005, the respondent submitted that the restoration of the applicant’s property could not be separated from the determination of the labour dispute. The matter, it was argued, fell within the provisions of s 89 of the Act which gives the Labour Court powers to hear and determine issues in labour disputes in the first instance. In support of his case, the respondent quoted from Zimtrade (supra) where MAKARAU J, as she then was, said:-

 

 ‘Notwithstanding the arguments advanced by Mr Dondo, I am of the opinion that matters relating to suspension from employment, with or without salary and matters relating  to dismissals are specifically within the purview of the Labour Court as these are matters that are provided for in the Act and the regulations made there under. There is adequate provision under the Act for setting up machinery to resolve such disputes. Thus, following my reasoning in the SIBANDA matter, the jurisdiction of this court is specifically ousted in respect of matters of dismissals and suspensions as these are specifically provided for the Act”. (Emphasis added).

 

            The respondent went further to state that the same principles alluded to in the Zimtrade case (supra) had been given the same force in T.O. Nyandoro v Cimas Medical Aid Society HC 6652/08 where MAKARAU JP, as she then was, again said:-

1. “I have had occasion to comment on the jurisdiction of this and the Labour Court in MARTIN SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH 131/04. In that matter, I came to the conclusion that s 89(6) of the Act takes away the jurisdiction of this and other courts in the first instance in all matters where the Labour Court has been specifically granted jurisdiction. The meaning that I gave to the section in that judgment was that whatever the Labour Court was specifically empowered to do, it would do exclusively. I remain of the same opinion”. (Emphasis added)

        

                        I now shall deal first with the issue of lis alibi pendens (the special plea)

            Section 124 of the Act provides as follows:

“(1)      Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second-mentioned proceedings of the fact of the earlier proceedings.

(2)        …….”

 

            The above provision of the law does not apply to the applicant because the proceedings were not in terms of the Act (i.e. action rei vindication). This is so also mainly because at the time of instituting these proceedings the applicant was not aware of any proceedings anywhere ‘in respect of the same or any related matter’. Even if the applicant might have been aware, the above law did not place an obligation on him as indicated in the relevant section because this action was not brought in terms of the Act. In the main, however, what comes out clearly is that there was no pending action/application in the Labour Court relating to the same matter at the time this application was filed on 8 October 2009. The alleged pending matter was only filed on 9 October 2009, presumably as a reaction to this application. 

I fully agree with the applicant that for the special plea to succeed the respondent must prove the following:

            “4.1.    That the action is already pending between the parties,

• That the plaintiff has brought another action against the same defendant.
• The action is based on the same cause of action and in respect of the same subject matter”.

            The subject matter in the subsequent action/application in the Labour Court is unfair dismissal or labour practice whereas in casu the application is for vindication. There was therefore no pending matter as submitted and therefore the special plea cannot stand.

            I now come to the issue of jurisdiction.  In casu the argument to deny this court jurisdictionis largely based on the provision of s 89(6) of the Act which provides as follows:-

“(6)      No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)” 

 

            It is not in dispute that this application is for vindication and is therefore not in terms of the Act. However, the respondent argues that the property in question, having come into his possession through his employment by the applicant, that property cannot be separated from a dispute that relates to his employment. The property formed party of his conditions of service as per the contract of employment.

            Indeed in his points in limine, the respondent states as follows:-

“1.       Respondent will argue that the determination of this has a direct and substantial effect on the outcome of the matter pending in the Labour Court in that the outcome of the matter in the Labour Court will resole the validity of the termination of the employment contract in terms of which the respondent acquired permission of the assets concerned. 

 

            Put differently, if the High Court were to rule in favour of the applicant it would have in essence accepted as fact that the respondent’s contract of employment was validly terminated by the applicant, yet that issue is not before the High Court.

 

Significantly, the High Court will have usurped the powers of the Labour Court to determine the validity of the respondent’s employment contract”. 

 

The respondent goes on to state as follows:-

 

“Respondent admits that applicant is the owner of the assets and that respondent is in possession of the assets.

 

Respondent will argue that he is in possession of the assets in terms of an employment contract entered into between the parties

A copy of the contract is attached.

 

Respondent will further argue that the said contract of employment was unlawfully and summarily terminated by applicant by letter dated 18 September 2009. A copy of the letter is attached”.

 

A reading of the offer letter of employment will show that clause 20 thereof provides

as follows:-

 

“You will be entitled to purchase a Company vehicle of your choice up to a certain value limit. Should you wish to procure a vehicle with a cost price in access of this limit, this will be approved, provided that the extra sum is paid in cash by yourself at the time of purchase.           

 

All fuel and maintenance costs will be for your account, and your basic salary does include an allowance for fuel for business travel in and around Shurugwi/Gweru

 

Your will be entitled to claim for any other prior approved business travel at A.A. Rate, less the portion of the rate for Insurance and Licensing.

 

Full details of the scheme will be available after acceptance of this employment opportunity”

 

The foregoing clearly shows that the vehicle belonged to the applicant and in his heads of argument the respondent states as follows:-

“Respondent admits that the applicant is the owner of the assets and that the respondent is in possession of the assets”.

 

            In para 4.2. of his opposing affidavit the respondent also states that:-

 

“I will state that I am in possession of the items pending the settlement or the matter as stated in above AD Para 3”. (AD Para 3 refers to the settlement of the labour dispute in the Labour Court)

 

Furthermore, in item 13 of Annexure J of his opposing affidavit the respondent states

as follows:

 

“1.       Under the contract I was employed, I have first option to purchase my PAV at book value. The policy was revised downwards and therefore should not affect me but new employees.

 

2.         The vehicle which I am holding now, Namely a Mitsubishi Pajero AAV 5956 is subject to that condition”.

 

            The above is also alluded to in item 10 of the same annexure where the respondent says:-

 

            “Re-imbursement for use of own car after amortizing my last vls (An Isuzu KB 320)

            Basis of Claim

 

            1.         Some years ago the vehicle policy was changed from a loan scheme to a

                       company vehicle scheme because of increased maintenance costs

 

2.         One of the clauses was that “employee on the current loan scheme may at anytime amortise their loan and get onto he new company car scheme”.

 

3.         I amortised my loan in terms of that policy and procedure.

 

1. The policy and procedure was immediately that afternoon changed to read that you needed approval of your general manager to amortize. This was AFTER I had amortized.

 

1. Despite this I was penalized and went for 18 months without a company vehicle as required by my contract of employment. I also did not receive any compensation from the company for the use of my own vehicle for the period 

 

1. I calculated the financial loss for the period to be USD 14790 at prevailing exchange rates”

 

The same issue of the vehicle is captured in his affidavit to the police, which affidavit

is annexure ‘B’ to the applicant’s founding affidavit. In paras 3-13 the respondent states as follows: 

           

            “1.       ……….

           

            2.         ……….

 

            3.         I am in possession of a Mitsubishi Pajero Reg. Number AAV 5956 registered in

                        the name of Zimasco. I am in possession of a laptop computer belonging to

                        Zimasco.

 

1. I have a cellphone line 0912286646 issued to me by Zimasco

 

5.

 

6.         Zimasco officically allocated the vehicle to me.

 

1. The above goods are subject of a labour dispute, which is still in process

 

1. Zimasco in turn owes me a lot of money, which is subject of determination in the same labour dispute.

 

1. IT IS CATEGORICALLY NOT TRUE THAT THERE IS ANY THEFT INVOLVED

 

1. I HAVE NOT STOLEN THE VEHICLE FROM ZIMASCO ANY MORE THAN ZIMASCO STOLE THE MONEY THEY OWE ME FROM ME

 

1. I HAVE NO INTENTION OF KEEPING THE VEHICLE ANY LONGER THAN BEYOND THE LEGAL DETERMINATION OF THE MATTER

 

1. I AM MERELY KEEPING THE ITEMS IN SAFE CUSTODY AS ZIMASCO IS ALSO KEEPING IN SAFE CUSTODY WHAT I BELIEVE OWE ME

 

1. THIS IS A PURELY CIVIL DISPUTE MATTER SUBJECT TO DETERMINATION BY THE JUDICIARY PROCESS OF THE REPUBLIC OF ZIMBABWE”

 

            From the foregoing I am informed that there is indeed a labour dispute still raging in the Labour Court. That fact is not disputed by the applicant. The respondent’s position is that once that labour dispute is resolved he will surrender the applicant’s assets, if need be. I say ‘if need be’ because the Labour Court’s decision is not yet known. However, if the Labour Court were to rule in his favour, the withdrawal of the assets from him at this stage would lead to serious prejudice on his part, which prejudice the applicant cannot easily compensate him for i.e loss of use of motor vehicle for the period prior to the Labour Court’s determination.

            I hold the view that the total cost to the employer of retaining an employee includes the employee’s salary and all benefits. I would, therefore, on that basis, find it untenable, in casu, to remove the assets in question from the respondent’s disputed contract of employment. The employer’s obligation to meet total costs of retaining an employee only vanishe when employment is finally terminated. The labour dispute now before the Labour Court is based a contract of employment. The assets in casu clearly form part of the respondent’s conditions of service (in particular the vehicle). In any case, the respondent is at liberty to apply to the Labour Court for the continued enjoyment of his full employment benefits until that court makes a final determination on the issue of his dismissal. It would therefore be premature to remove from him the assets that are linked to the labour dispute that he has placed before the Labour Court. To that end, I am unable to distinguish this matter from the Zimtrade case (supra)where MAKARAU J, as she then was, ruled that in certain circumstances “an employee can always raise the defence of a claim of right to possess the property of an employer until he or she is effectively and lawfully disentitled to the property”.

We have in casu a situation where the respondent is saying:- “I was unlawfully dismissed and before the unlawful dismissal I was entitled to the use of the assets which are the subject matter of this application. My case is now before the Labour Court where I am demanding my employment back together with all benefits attaching to my employment”.

            The applicant has drawn my attention to the case of Unimark Distributors (Pvt) Ltd v ERF 94, Silvertondale (Pvt) Ltd 1999(2) S.A. 986 @ 9966 where the following appears:-

“But there can be little doubt that on of its incidents (dominium) is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found from whosoever holding it. It is inherent in the nature of ownership that possession of the res should be normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some rights enforceable against the owner, e.g. right of retention or a contractual right”.

 

            I agree with the above.

 

            I am, in casu, of the view that the respondents’ disputed contract of employment gives him the right to hold onto the assets until the Labour Court declares that he does not enjoy such a right. The respondent is not merely saying “I am holding onto the assets because you owe me money”. A reading of his affidavit to the police might paint that picture. However, the issue goes beyond that. He is actually saying: “I have a contractual interest in these assets as they form part of my conditions of employment. I shall only release the assets when the Labour Court confirms my dismissal”.  

I further believe that it is the Labour Court that shall determine whether or not the changed policy relating to vehicles applied to the respondent as alleged by him in his papers. That being the respondent’s argument, the issue of a lien does not arise.

My view is that s 89(6), as quoted in this judgment, clearly gives exclusive jurisdiction

to the Labour Court in all labour disputes. Given the wording of that section, I do not see how any other court can seek to place itself as a court of first instance in any labour dispute. Admittedly parties retain the right to follow the arbitration route. Notwithstanding its inherent jurisdiction, I think this court should go a long way to give effect to the legislature’s intentions in creating a special court to deal with all labour disputes in the country. 

            Clearly, in terms of s 89(6) of the Act, the power to hear and resolve the labour dispute between the parties in casu resides in the Labour Court. Indeed, as I have already said, an  attempt by any other court, at this stage, to deal with any aspect of the dispute, would certainly amount to interference with the special functions bestowed on the Labour Court by the legislature. That is the reason why the legislature was quite specific as to clearly state that ‘No court other than the Labour Court’ would have jurisdiction in the first instance to hear and determine matters of this nature. This is a case of dismissal from employment and therefore a labour dispute. I therefore believe that once any other court is satisfied, in a matter placed before it, that the issues for determination therein are entirely anchored on a labour dispute, then such court should immediately refer the matter to the special court, namely the Labour Court. Such a move, would, in my view, be in line with the intentions of the legislature as spelt out in the Act.  I therefore find merit in the respondent’s opposition to this application. The application cannot therefore succeed.

            I accordingly order as follows:

            1.         The application be and is hereby dismissed.

            2.         The applicant shall pay costs of suit.

 

 

 

Gill, Godlonton & Gerrans, applicant’s legal practitioners

Chikumbirike & Associates, respondent’s legal practitioners