Zimbabwe National Road Administration v Kufa (829 of 2022) [2022] ZWHHC 829 (16 November 2022)

1 HH 829-22 HC 10349/19 ZIMBABWE NATIONAL ROAD ADMINISTRATION versus GIVEMORE TENDAI KUFA HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 29 June 2020 & 16 November 2022 Opposed application M Mandevere, for the applicant H Mukonoweshuro, for the first respondent CHINAMORA J: Introduction Before me is an application by the Zimbabwe National Road Administration (ZINARA) for rei vindication in respect of a Toyota Hilux (double cab) motor vehicle, registration number AEC 6465 (“the vehicle”). The application is opposed. The factual background giving rise to the dispute is as follows: sometime in March 2010, the applicant and the respondent entered into a contract of employment. The respondent was employed as regional engineer of the applicant, as evidenced by the contract marked Annexure “B”, which appears on pp 8-10 of the record. Clause 6 (b) of this contract reads as follows: “Vehicle benefit- The P & M ENGINEER shall be entitled to conditions of service, 4 x 4 model engine capacity up to 3.0 litres with fuel for private mileage of 200 litres per month. And also shall be entitled to purchase his conditions of service vehicle at a residual value of 10% of the cost price at the end of four years”. Pursuant to the above clause, on 29 August 2016, applicant availed the vehicle to the respondent for use during his employment. On 9 August 2019, the respondent resigned from his employment. (See Annexure “E” on p 13 of the record). The applicant asserts that it is the owner of the vehicle and that respondent, despite resigning, is holding on to it without the applicant’s consent or just cause. In addition, the applicant submitted that, despite demand for the return of the vehicle by letter dated 6 November 2019, the respondent has failed to do so. Thus, the applicant seeks the return of the vehicle and costs of suit on a legal practitioner and client scale. HH 829-22 HC 10349/19 In response, the respondent makes the following case: in terms of the contract of employment, he obtained his first conditions of service vehicle on 1 June 2011. He purchased the said vehicle in 2015 per the employment contract. The respondent argues that, contractually, the applicant should have issued him with another vehicle at this time (i.e. in 2015). However, the vehicle was only issued in August of 2016. The respondent contends that this was in breach of the contract. As proof that the vehicle was part of his conditions of service, the respondent placed before me an extract of the applicant’s Human Resource vehicle allocation policy. This document is marked Annexure “E” and appears on pp 26-27 of the record. Alternatively, the responded submitted that, the applicant had set a precedent of allowing employees whose contracts terminated before 4 years to buy their vehicles at a depreciated rate of 25% per annum. On this basis, he asserted that the vehicle should be sold to him depreciated by 3 years reckoned from August 2016. Additionally, the respondent averred that despite being given the second vehicle in August 2016, ZINARA continued to deduct vehicle benefit tax for 4 years as if the respondent had the vehicle for that period. To that effect, the respondent availed his payslip as Annexure “F” to the founding affidavit, and argued that the applicant cannot benefit from its breach of contract to his prejudice. It is this disagreement over ownership of the vehicle that has given rise to the dispute before me. I will now examine the law relevant to the disposal of the issue in casu, before I make a determination on whether the applicant is entitled to hold on to the vehicle. The applicable law The law relating to actio rei vindicatio is settled in this jurisdiction. In South Africa, the law is the same. It is an action derived from the principle that an owner of property to recover it from any person who retains possession of it without his consent or other lawful basis. The position was set out in Nyahora v CFI Holdings SC 81-14 by ZIYAMBI JA who succinctly stated: “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.” [My own emphasis] HH 829-22 HC 10349/19 In Chetty v Naidoo 1974 3 SA 13 (A), which is the locus classicus, the law was stated as follows: “It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g., a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner… (cf. Jeena v Minister of Lands 1955 (2) SA 380 (AD) at pp 382E, 383)…” As can be seen from the case law, for one to succeed in an actio rei vindication, they must prove that ownership of the property which they seek to vindicate, and establish that the person in possession holds it without their consent or any lawful cause. Conversely, to successfully defend the claim, the possessor must show a right to retain the property or a contractual basis to hold onto the property. Let me proceed to apply the law to the facts of this case. Analysis of the case \casu, it is common cause that the respondent in possession of the applicant’s vehicle. The respondent claims a right to retain possession of the vehicle after resigning from ZINARA on the basis of clause 6 (b) of the employment contract that allows employees (on termination of their employment) to purchase vehicles issued for their use during their employment. The parties are in agreement that their respective rights they seek to protect emanate from clause 6 (b) contract of employment, but differ on its interpretation. This is necessarily the appropriate starting point, since this is the agreement by which the parties voluntarily elected to bind their relationship. In this regard, in Sheisam Consulting (Pvt) Ltd & Anor v Energy and Information Logistics (Pvt) Ltd HH 7-18, CHAREWA J appositely said: “It is settled in our law that courts do not make contracts for parties. And where a contract has been reduced to writing, the basic principle of the caveat subscripto rule is that parties are bound by the ordinary meaning of what they have appended their signatures to. The court is therefore generally confined to relying on the provisions of the contract where a contractual dispute arises; otherwise the value of written contracts will be eroded.” See also Old Mutual Property Investments v Metro International (Pvt) Ltd and Anor HH 53-06. From this premise, arises the question whether the import of clause 6 (b) of the contract is to create a right of retention for the respondent. Such a post-mortem is necessary, because the documents before the court show that the vehicle is in the applicant’s name. Also on record is the HH 829-22 HC 10349/19 employment contract which incorporates clause 6 (b). It is imperative, in the circumstances, to determine if the contract indeed gives the respondent a right to retain the vehicle. Let me begin with what, perhaps, may generally be considered to be elementary. My understanding of the ordinary meaning of clause 6 (b) is that: i. The respondent (as P and M engineer) shall be entitled to the vehicle described in the contract as part of his conditions of service. ii. at the end of 4 years the respondent is entitled to purchase the said vehicle at a residual value of 10% of the cost price. It is obvious from this interpretation of clause 6 (b) and conduct of the applicant in deducting the vehicle tax benefit from the respondent’s salary, that during his employment tenure, the respondent was entitled to a conditions of service vehicle. My view is that any delay in providing the vehicle to the respondent did not affect the vehicle benefit, as he was well cushioned by the vehicle tax benefit at a time he did not enjoy the benefit. Ordinarily, an employee whose contract has been terminated has no right of retention over the employer’s property derived from employment. (See William Bain and Co Holdings (Pvt) Ltd v Nyamukunda HH 309-13 Forestry Commission v Betty Muwonde HH 9-18). The respondent’s circumstances are clearly distinguishable. In the Forestry Commission case, the right sought to be relied on spoke to occupation during the period of employment. On the contrary, the respondent’s right of retention, in casu, is based on the entitlement to purchase the vehicle vested in clause 6 (b) of the employment contract. This right, in my view, accrued to the respondent in 2015, otherwise no plausible basis exists for the applicant to deduct vehicle tax benefit well knowing that it had not given the respondent a vehicle. On the evidence before me, I am satisfied that the respondent has, on a balance of probabilities, established a right of retention of the vehicle based on clause 6 (b) of the contract of employment. The deduction of vehicle tax benefit from 2015 seems to me to be a tacit acceptance by the applicant that the period of eligibility to purchase the conditions of service date would be calculated from that date. Any other interpretation would be absurd. I am inclined to dismiss the application. Generally, costs follow the result and there is no reason for departing from that approach. While the respondent has asked for costs on the attorney and client scale, in exercise of my discretion, I will award costs on the ordinary scale. Even though the applicant has been HH 829-22 HC 10349/19 unsuccessful in its claim, I do not believe that it has litigated in bad faith or with a desire to abuse the court process. Both parties presented plausible arguments before the court, and it would be unfair to say that the respondent’s case was actuated by mala fides. In the circumstances, I am in agreement with the position taken by CHITAPI J in Netone Cellular (Pvt) Ltd v Reward Kangai HH 441-19, that a party should not be penalized with punitive costs for holding a contrary legal position, since opposing arguments on the law enhance our jurisprudence. Therefore, in the exercise of my discretion I will award costs on the ordinary scale. Disposition In the result, I grant the following order: 1. The application be and is hereby dismissed. 2. The applicant shall pay the respondent’s costs on the ordinary scale. Kadzere Hungwe & Mandevere, applicant’s legal practitioners H Mukonoweshuro & Partners, respondent’s legal practitioners