Powertel Communications (Pvt) Ltd v Warner Mtisi

### Preamble
1
HH 415-13
HC 11900/12
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POWERTEL COMMUNICATIONS (PVT) LTD

versus

WARNER MTISI

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE, 18 July 2013 and 18 October 2013

Opposed Matter

T. Nyamasoka, for the applicant

C. Mucheche, for the respondent

TAKUVA J: The respondent was employed by the applicant as a Finance Manager. By virtue of his employment the respondent was entitled to the following perquisites,

Toyota Prado, registration No. ABH 7465

A laptop and an iPad 2.

On or about 5 September 2012, the respondent was dismissed from the applicant’s

employ pursuant to a disciplinary hearing in which the respondent was charged with certain acts of misconduct in terms of the relevant labour regulations. The applicant instructed the respondent to return its property since the contract of employment had been terminated.

This demand was met with the `following remarks by the respondent’s legal practitioners:

“We humbly and respectfully advise that our client has appealed against both the determination and penalty meted on him by your client to the Ministry of Labour and the matter has been set down for the 1st of October 2012 at 0900 hours before Labour Officer J. MADZIYA. Please refer to the notification attached hereto as Annexure A.

Consequently, we are instructed to advise that our client will not be surrendering his personally allocated motor vehicle pending the finalisation of his case”. (my emphasis).

The applicant then filed this application seeking an order directing the respondent to

return its property. The application is anchored on the fact that the relationship that existed between the parties namely that of employer/employee ceased to exist upon the respondent’s dismissal from the applicant’s employ. It was submitted that the applicant is entitled to vindicate its property against the respondent who was in possession of it without its consent. Further it was submitted that the suggestion that respondent’s continued possession is justified simply because he is challenging the decision to dismiss him from the applicant’s employ is without merit.

The principles governing the rei vindicatio action are crisply put by Silberberg and Schuman’s The Law of Property as follows;

“the rei vindication is available to an owner for the recovery of his movable or immovable thing from who-so-ever is in possession or detention of the thing, irrespective of whether the possession or detention is bona fide or mala fide. The old maxim ubi re invenio ibi vindico applies --- an owner instituting the rei vindicatio must prove that:

he is the owner of the thing;

the thing is still in existence and clearly identifiable;

the defendant has possession or detention of the thing at the moment the action is instituted”.

See also Chetty v Naidoo 1974(3) 8A 13 where the scope of the principle was

narrowed in the following manner;

“…… It is inherent in the nature of the ownership that possession of the rex should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is rested with some impossible right against the owner e.g. a right of retention or contractual right” (the emphasis is mine).

In this jurisdiction, the authorities are divided on the issue of whether a dismissed employee who has appealed against his dismissal is entitled to hold on to an employer’s property pending the outcome of the appeal. The following authorities state that an employer can vindicate the moment the contract of employment is terminated;

Southdown Holdings Ltd v Mariwa  2003(2) ZLR 318 (H)

Ashanti Gold Fields Zimmbabwe Ltd v Greter Geza HC 3507/07

Ashanti Goldfields Zimbabwe v Tongai Chigarino HC 3610/07

City of Harare v Gwindi 2003(2) ZLR 188. (H)

On the other hand, the following line of cases pronounced the principle that where the

validity of suspension or termination of the employment contract is still pending or is under dispute, vindicatio  cannot lie at the instance of the employer;

Zimtrade v Makaya 2005(1) ZLR 427 (H)

Medical Invsetments Ltd v Pedzisayi  2010 (1) ZLR (1) (H)

DHL International (Pvt) Ltd v Madzikanda 2010(1) ZLR 204 (H)

In casu, when the matter was argued, counsel for the respondent produced with leave

of the court, an arbitral award reinstating the respondent to his former position without loss of salary and benefits. If anyone is to appeal it is the applicant. The question becomes whether an employer who has lost the right to dismiss an employee, should be allowed to recover its property from an employee whose, status is that of an employee? In my view, the employer has no such rights.

Of the two lines of cases highlighted above, I am inclined to agree with those cases which deny an employer the right to vindicate under these circumstances. In DHL International v Clive Madzikanda HH 51/2010, KAKARAU JP (as she then was) reasoned as follows;

“It appears to me that in casu, the right of the applicant to possess the motor vehicle is subject to the rights that the respondent has to the vehicle in terms of his employment with the applicant. Whilst the applicant has deposed to the fact that the respondent has been dismissed from employment, that dismissal is subject to appeal. It is still in dispute and so are the entitlements of the respondent under the contract of employment.  (my emphasis)

At p 5 of the cyclostyled judgment, the learned judge said:-

“While the law regards the respondent as dismissed, he has never accepted that position and is challenging his purported dismissal before the Labour Court. For as long as his challenge is alive and not fully determined, his claim of right remains alive with it. It is only when his challenge is invalidated at law that he loses the basis for his claim of right. The claim that the respondent has is not in my view dependent upon whether the law regards him as an employee or not. Rather is dependent upon whether or not the dispute between the parties has been definitively resolved. In this instance, the dispute between the parties is pending before the Labour Court and resultantly the claim of right remains alive. (my emphasis)

In my view an employment relationship is wider than a contract of employment. As such, the relationship endures the termination of a contract of employment in terms of a code of conduct for reasons of misconduct. Most codes of conduct provide an appeal procedure as a domestic remedy. To strip employees of benefits before they have exhausted the remedies provided for is to render appeal rights a fantom never to be enjoyed by employees.

In casu, the applicant was ordered by the arbitrator to reinstate the respondent. This has reinforced the respondent’s claim of right which is predicated on the contract of employment.

For these reasons, I find that the application is devoid of merit and it is hereby dismissed with costs.

Atherstone & Cook, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners