Dawnbury (Pvt) Ltd v Francis Chakanesa

### Preamble
1
HH 773-18
HC 1694/18
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DAWNBURY (PVT) LTD

versus

FRANCIS CHAKANETSA

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 7 November 2018

Civil trial

S. Simango, for the plaintiff

F. Malinga, for the defendant

ZHOU J: The plaintiff’s claim against the defendant is for the delivery of three motor vehicles the particulars whereof are detailed in the summons and declaration as follows: Mazda T3500 Reg. No. AAJ 1472, Chassis No. WEL46MY 01050; Mazda T3500 Reg No. ACM 1956, Chassis No. El49MY03348; Mazda T3500 Reg No. ABP 0780. The plaintiff’s case, as pleaded, is that the three motor vehicles were placed under the custody of the defendant for parking at the latter’s place of residence at a time that there was in existence an employer/employee relationship between the parties. The plaintiff pleaded that the defendant’s contract of employment was terminated consequent upon which the defendant was ordered but refused to return the three motor vehicles. The defendant, according to the plaintiff, has no right to keep the motor vehicles since he is no longer an employee of the plaintiff.

The defendant contests the claim. His case is that three motor vehicles were given to him by the plaintiff to settle a debt owed to him. The defendant’s case is that contrary to the plaintiff’s claim, he is not an employee but a director of the plaintiff. The amounts owed to him were in respect of directors’ fees and for some bakery equipment which belonged to him but was sold by the plaintiff without his consent.

Both parties led evidence from one witness each. The plaintiff’s witness, Yikang Song, testified that the defendant was employed by the plaintiff as mechanic. The motor vehicles in dispute, according to this witness, were given to the defendant for the purposes of effecting repairs. The defendant was supposed to return the motor vehicles once he had repaired them. When questioned about the defendant’s claim to directorship in the plaintiff the witness stated that the defendant was indeed included as one of the directors as shown on the Form CR14 which was produced in this court. He stated that the defendant was made a director by him in order to comply with a law that required that locals be included as directors of companies owned by foreigners. The witness stated that the defendant’s directorship was terminated.

The defendant gave evidence himself. He stated that the three motor vehicles which are in his possession are the Mazda T3500, Reg No. ACM 1956, a Mitsubishi Canter Reg No. ABP 0780, and another Mitsubishi Canter AAT 2220. His testimony was that the plaintiff was experiencing financial challenges which handicapped it from paying what was due to him as a director. As a result, an agreement was reached in terms of which the plaintiff gave the three motor vehicles to him as payment. He stated, too, that he is a shareholder in the plaintiff. According to the defendant the documents pertaining to his shareholding and the written agreement pertaining to the motor vehicles were stolen when his office was broken into after he was interdicted by order of court from being at those offices. He blames the plaintiff’s Yikang Song for the break-in which he says was meant to destroy evidence relevant to this case.

From the evidence led, the following facts are common ground. The defendant is in possession of three motor vehicles. Those motor vehicles were given to him by the plaintiff. There is a dispute as to the precise particulars of the motor vehicles. The plaintiff did nothing to prove the particulars of those motor vehicles. The registration books produced in Exh 1 (pp 29-33) support the particulars as given by the defendant. The plaintiff did not challenge those registration books as representing the motor vehicles in the custody of the defendant. The plaintiff did not produce any bundle of documents but elected to rely on the defendant’s bundle. For the above reasons, I find that the three motor vehicles in the custody of the defendant are as described by the defendant.

There is a dispute as to why the motor vehicles were given to the defendant. The defendant’s case, which is consistent with his evidence, is that they were given as payment. The plaintiff presented two inconsistent positions. In the declaration the plaintiff states that the motor vehicles were given to the defendant in his capacity as an employee of the plaintiff for the purposes of just keeping since he had space at his residence. The version given in evidence was that the vehicles were given to the defendant to effect repairs.

The inconsistencies in the plaintiff’s case remain unexplained. More significantly, it makes the plaintiff’s case unbelievable. There are further aspects of the plaintiff’s testimony which not only render the plaintiff’s case not worthy of belief but clearly tilt the probabilities against it and in favour of the defendant’s version about his possession of these motor vehicles. Firstly the claim that the defendant was a mere mechanic is contradicted by the Form CR 14 which lists him as a director. To his discredit, the plaintiff’s witness states that he (or the plaintiff directors) included the defendant on the list of directors merely to comply with the requirements of the indigenisation legislation. This contradicts the plaintiff’s claim in the replication that the defendant “in the company of some bogus people who alleged that they were from the National Indigenisation Board” forcibly imposed the defendant as a director. Excusing the use of unprofessional language in the pleadings for now, this assertion was not proved in evidence. The claim was not persisted with. Also the plaintiff’s witness gave no satisfactory explanation as to why the registration books for the motor vehicles were delivered to the defendant if the defendant had the motor vehicles for the purpose of safekeeping or even for repairs. The suggestion that the registration books were given to the defendant so that he would use them to renew the motor vehicle licences is not supportable. Firstly, the plaintiff did not show that it gave any money to the defendant to pay for renewal of the licences. Why would the defendant be expected to incur the expense himself? Secondly, why would a mechanic have the responsibility to renew the licences for the motor vehicles, especially only the three which were in his possession.

The presumption that the possessor of movable property is the owner thereof is part of our law. The onus was on the plaintiff not just to prove its title to those motor vehicles but to rebut that presumption. On the other hand, the defendant’s version of events makes sense and accords with the probabilities. The fact that he was given the motor vehicles and the registration books for  them in 2014 accords with his version that they were meant to be his. From July 2014 to November 2017 when the summons in casu was issued the defendant had possession of the motor vehicles. He also has clarity regarding the correct motor vehicles in his possession, an attribute which the plaintiff is clearly wanting on. The defendant explained that the transaction in terms of which he was given the motor vehicles was reduced to writing. His evidence that the book or diary in which it was recorded went missing following a break in into his office is consistent with the evidence showing that he made a complaint to the police concerning that break-in. The plaintiff did nothing to challenge the fact that such a complaint is still under investigation.

The defendant asked for attorney client costs to be awarded against the plaintiff. The special order of costs is reserved for cases of misconduct or other reprehensible conduct. While the plaintiff’s case is clearly misconceived and riddled with inconsistencies and, in some instances, deliberate falsities, I do not believe that the special order of costs is warranted.

In the result, IT IS ORDERED THAT:

The plaintiff’s claim be and is hereby dismissed.

The plaintiff shall pay the costs.

Nyikadzino, Simango & Associates, plaintiff’s legal practitioner

Muronga Malinga Legal Practice, defendant’s legal practitioners