FBC Bank Limited v Energy Deshe

### Preamble
1
HH 285-11
HC 399/11
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FBC BANK LIMITED

versus

ENERGY DESHE

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 25 October 2011, 8 November 2011, 11 November 2011

18 November 2011 & 30 November 2011

Adv Mpofu, for applicant

Mr Bvekwa, for respondent

MTSHIYA J: This is an application for vindication. The applicant gives the background to the application in the following terms:-

“4.	Respondent was employed by the applicant as a Brach Manager. As part of his

employment benefits, respondent was allocated a motor vehicle for his duties namely a motor vehicle Isuzu Registration Number ABC 4719. The enjoyment of usage of this vehicle attached to the office holder of Branch Manager for the applicant.

5.	Respondent’s contract of employment was terminated on 29 September 2009 following disciplinary proceedings. An appeal was lodged. The respondent has an appeal pending in the Labour Court where he is challenging his dismissal”.

Furthermore in paras 8 and 10 of the founding affidavit the applicant goes on to say:-

“8	I am reliably advised that the respondent does not have any lawful basis for holding on to the applicant’s motor vehicle. I say so because any challenge which the respondent may have towards his dismissal does not affect the applicant’s rights. This is in terms of s 92E of the Labour Act [Cap 28:01]. As things stand the applicant’s decision to dismiss, unlawful or otherwise, stands and the respondent is obliged to comply.

10.	In fact by continuously keeping the vehicle against the owner’s instructions, I am reliably advised, the respondent is committing a criminal offence. He is contravening s 57 of the Road Traffic Act”.

The respondent refuses to handover the vehicle to the applicant on the basis that he has appealed to the Labour Court against his dismissal. The respondent had also argued that this is a labour dispute and therefore this court has no jurisdiction to entertain the application. That argument was later abandoned because the respondent accepted that it is this court that can grant the relief sought. (See Zimasco (Pvt) Ltd v Farai Maynard Marikano SC 181/10). The applicant avers that the vehicle in question was allocated to the respondent in order to enable him to carry out his duties whilst still in its employ. That, the applicant argues, is no longer the case.

It is not in dispute that the vehicle belongs to the applicant and that it is in the hands of the respondent who has not pleaded any claim of right over it. Indeed a concession was made to that effect. All the respondent can say is that he is currently challenging his dismissal in terms of an appeal and should therefore hold onto the vehicle. There is nothing more said to justify his holding onto the vehicle. As at this point there is no employer- employee relationship between the parties.

At pp 408-409 in the fifth edition of Amler’s Precedents of pleadings the essentials of a claim for vindication are given in the following terms:-

“A plaintiff must allege and prove that:-

He is the owner of the thing (whether movable or immovable);

The dependant was in possession of his property at the time of the institution of the action”.

Furthermore defences listed at p 409 in Amler’s Precedents of pleadings include the

right to possession. That was not claimed or proved in casu.

In Chisipite School Trust v Clarke 1999(2) ZLR 324(S) the Supreme Court had this to say:-

“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 use of the motor vehicle. A labour relations officer cannot order the respondent to surrender these particular benefits. Consequently, the appellant, being unable to resort to self-help, approached the High Court for relief. I consider it was justified in doing so.

Whether the acts of misconduct relied upon are ultimately proved and so result in the termination of her contract of employment, was an issue awaiting decision by a labour relations officer; and until made the enjoyment of all benefits remained lost to the respondent. That was the position in law facing the learned judge. On his approach, however, the question did not arise of whether the particular relief sought depended upon it being proved to his satisfaction that the suspension of the respondent was lawful”.

Also in Unimark Distributors (Pvt) Ltd v ERF 94 Silvertondale (Pvt) Ltd 1992(2) S.A. 986 the following is said with respect to a claim for vindication :-

“But there can be little doubt that one 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 is holding it. It is inherent in the nature of ownership that possession of the res should be normally 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”.

The respondent has made no claim to a right of retention or a contractual right.

My view is that the issue of a pending appeal does not impact on the above principle of law which I fully agree with.

I am also not aware of any reversal by the Supreme Court of the above position of the law pronounced in Chisipite (supra). The ruling in Zimtrade would therefore not apply. That being the case I find myself estopped from denying the applicant the relief it seeks. I believe employers deserve the protection of the law from employees who are akin to take the law into their own hands as demonstrated by the respondent in casu.

I therefore order as follows:-

IT IS HEREBY ORDERED THAT:-

Respondent be and is hereby ordered to return to the applicant the following motor vehicle namely:

An Isuzu Registration No. ABC-4719

If the respondent should fail to return the property as ordered above within forty-eight hours of service of this order on him, the Deputy Sheriff be and is authorised to remove the property from the custody of the respondent or any person holding such property on the authority of the respondent and surrender the property to the applicant; and

The respondent shall pay costs of suit on a legal practitioner/client scale.

Dube, Manikai & Hwacha, applicant’s legal practitioners

Energy Deshe c/o Bvekwa Legal Practitioners, respondent’s legal practitioners