1
HH 501-15
HC 6258/12
MONTCLAIR HOTEL AND CASINO
versus
FARAI MUKUHWA
HIGH COURT OF ZIMBABWE
MATHONSI J
HARARE, 3 June 2015 and 10 June 2015
Opposed Application
C. Mucheche, for the applicant
A. Makoni, for the respondent
MATHONSI J: Just from where do former employees think they derive the authority to hold on to property belonging to a former employer given to them for use during the subsistence of the contract of employment in the discharge of their duties as employees, after they have lost employment? This matter is one of several of its nature which are now finding their way to the courts with alarming frequency of late where a dismissed employee would simply not surrender the employer’s property but would cling to it as if life itself depends on it.
The respondent was employed by the applicant as its General Manager. On 17 April 2012, the respondent appeared before an internal disciplinary committee facing two counts of misconduct. She was found guilty and on 19 April 2012 her employment contract was terminated. I have to quote the relevant portion of the letter of dismissal because it is the only basis upon which the respondent thinks she is entitled to hold onto the property of the applicant:
“Please be advised that if you are not satisfied with the decision of the disciplinary committee you have a right to appeal to the appeals committee within seven (7) working days of this hearing. If you are not appealing against this determination, your terminal dues if any will be processed and paid to you. You are reminded to surrender all company property in your possession”.
The respondent has latched onto that part of the letter which she has interpreted to mean that she is entitled to retain possession of the employer’s property as long as she is appealing the dismissal. Mr Makoni who appeared for the respondent submitted that after the respondent’s appeal to the appeals committee was unsuccessful the applicant should have issued another letter to the respondent extinguishing the right of possession conferred upon her by the letter of dismissal. As no such letter was issued the respondent has a claim of right over the property. Of course, not a single legal authority was cited to sustain what appears to be an extremely frivolous defence.
The applicant has made this application seeking an order compelling the respondent, its former employee to surrender its property given to her for use in the discharge of her duties as an employee, an Isuzu KB 280 motor vehicle registration number AAL 8011 and a white house at Montclair Hotel and Casino, Juliasdale Nyanga, she having lost her employment.
The respondent has opposed the application and in her opposing affidavit she raised the issue that this court has no jurisdiction over the matter which is a purely labour dispute to be determined exclusively by the Labour Court in terms of s 89(6) of the Labour Act [Chapter 28:01]. She also made the point that she had appealed to the Labour Court against her dismissal which appeal is still pending. The applicant could only claim its property after the completion of the Labour Court challenge.
One would have expected the respondent to capitulate after the Labour Court dismissed her appeal on 23 July 2013 and the Supreme Court authoritatively determined the issues she relied upon in Nyahora v CFI Holdings (Pvt) Ltd S-81/14 (as yet unreported), a judgment delivered on 23 October 2014. She would have none of it. Instead she has remained clinging on a thread in the form of a statement in the letter of dismissal which can mean nothing other than that she was entitled to retain the property while she exhausted the domestic remedies of appeal to the appeals committee of the applicant.
In Nyahora v CFI Holdings (Pvt) Ltd, supra, the Supreme Court ruled that the exclusive jurisdiction conferred by s 89(6) relates only to the hearing and determination, in the first instance, of any application, appeal or matter referred to in Subsection (1) of s 89 of the Labour Act [Chapter 28:01]. It pronounced at p 7 of the cyclostyled judgment that:
“Nothing in s 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of civil law, except in respect of those applications and appeals that are specifically provided for in the Labour Act. Nor is there contained in s 89 any provision expressly authorising the labour Court to deal with an application such as in the instant case, for the common law remedy of rei vindicatio. Such applications fall squarely within the jurisdiction of the High Court”.
That therefore puts the repeatedly made argument of lack of jurisdiction to bed. In respect of the claim of right by a dismissed employee, the Supreme Court proceeded later in that page to settle that when it pronounced:
The action rei vindicatio is available to an owner of property who seeks to recover it from a person in possession of it without his consent. It is based on the principle that an owner cannot be deprived of his property against his will. He is entitled to recover it from any one in possession of it without his consent. He has merely to allege that he is the owner of the property and that it was in the possession of the defendant/respondent at the time of commencement of the action or application. If he alleges any lawful possession at some earlier date by the defendant then he must also allege that the contract has come to an end. The claim can be defeated by a defendant who pleads a right of retention or some contractual right to retain the property”.
This is what the applicant has done in this matter. It is the owner of the property which was given to the respondent by virtue of an employment contract which has now come to an end. Whether the respondent is challenging the termination or not is immaterial, an owner is entitled to vindicate. The Supreme Court has confirmed a position long held by this court in respect of such matters. See Zimbabwe Broadcasting Holdings v Gono 2010(1) ZLR 8(H) 9G, 10 A-C; Medical Investments Ltd v Pedzisayi 2010(1) ZLR 111(H) 114C; DHL International Ltd v Madzikanda 2010(1) ZLR 201(H) 204 B-D; Moyo v Gwindingwi N.O & Anor 2011(2) ZLR 368(H) 374A; PG Industries (Zimbabwe) Ltd v Machawira 2012(1) ZLR 552(H) 556B; William Bains & Co Holdings (Pvt) Ltd v Nyamukunda HH 309/13; Steelmakers Zimbabwe (Pvt) Ltd v Mandiveyi HH 479/15.
It is disappointing that in spite of all these authorities the respondent managed to cling onto the property of the applicant for over 3 years and in fact took the contest all the way to the wire. All the time she was pursuing a frivolous and vexatious defence, a defence is such when, according to the Supreme Court in Rogers v Rogers S-7-08:
“…. it is obviously unsustainable, manifestly groundless or utterly hopeless and without foundation”.
There must be consequences for pursuing that kind of defence. It is an award for costs on a punitive scale, as it is those which are the dose the respondent badly needs for taking the court down the garden path.
In the result, it is ordered that:
- The respondent and all those who claim right of occupation through her be and are hereby directed to vacate the Applicant’s house commonly known as the white house situate at Montclair Hotel and Casino, Juliasdale, Nyanga within seven (7) days of being served with this order, failing which the sheriff or his deputy be and is hereby empowered and authorised to evict the respondent and all those claiming occupation through her from the concerned immovable property.
- The respondent be and is hereby directed to surrender the applicant’s motor vehicle, an Isuzu KB280, Registration Number AAL 8011 forthwith upon receipt of this order failing which the sheriff or his deputy is hereby authorised to seize same and surrender it into the custody of the applicant.
- The respondent shall pay costs of suit on a legal practitioner-client scale.
Matsikidze & Mucheche, applicant’s legal practitioners
Makoni Legal Practice, respondent’s legal practitioners
