Sewera v Straitia Inv. (Pvt) Ltd (HC 4806 of 2015; HH 553 of 2015) [2015] ZWHHC 553 (15 June 2015)

1 HH 553-15 HC 4806/15 CECILIA SEWERA versus STRAITIA INVESTMENTS (PVT) LTD HIGH COURT OF ZIMBABWE MANGOTA J HARARE, 11 and 16 June, 2015 Urgent chamber application T Zhuwarara, for the applicant N Chamisa, for the respondent MANGOTA J: At the centre of this application is a Mazda BT 50 motor vehicle with registration number ADA 3278. Until towards lunch hour of 22 May 2015, the applicant had full possession, control and use of the motor vehicle. She did so in terms of her contract of employment with the respondent. She worked for the respondent with effect from 2008. She worked as the respondent’s sales and marketing manager. Part of the letter of appointment which the respondent’s executive director addressed to the applicant on 18 March, 2008 reads: “Dear Mrs Sewera APPOINTMENT TO THE POSITION OF SALES AND MARKETING MANAGER OF STRAITA INVESTMENTS T/A STRAITIA MANUFACTURING INDUSTRIES We are pleased to offer you employment as a sales and marketing manager on the following terms and conditions: 1. ….. 2. ….. 3. As part of your employment benefits, the company will make available to you a company car. You will be entitled to a fuel allowance of 30 litres per week. This is exclusive of out of town trips” [emphasis added] The record showed that: (a) The applicant worked for the respondent from May, 2008. In October, 2014 the respondent advised the applicant that her services were no longer required. It requested the applicant to present to it a mutual employment termination plan. HH 553-15 HC 4806/15 The applicant’s proposal stated, among other things, that she be allowed to purchase the motor vehicle which is the subject of this application. (b) In a letter which the respondent’s consultant, Stallone Consultancy, addressed to the applicant on 21 April, 2015 the respondent offered to sell the car to the applicant as one of the latter’s severance package. The letter reads, in part, as follows: “21 April, 2015 Cecilia Sewera Harare Dear Madam TERMINAL BENEFITS Pursuant to negotiations that have been taking place since December last year I wish to advise you that Straitia has taken into account all your submissions and the final offer is as follows:- You can have the car but you must pay cash within seven (7) days. The car is still subject to lease and when the balance is paid off by the company the leasing bank will need a final payment of 10 % of the original purchase price. This will be your obligation when the lease comes to an end sometime next year.”[emphasis added] (c) It is mentioned, in passing, that the present is not the only car which the respondent allocated to the applicant from the time that the latter commenced employment with it. The applicant was, with effect from May 2008, allocated a Mazda 323 motor vehicle with registration number ABE 7254 as part and parcel of her employment benefits. She subsequently purchased that motor vehicle in line with her agreement with the respondent. The motor vehicle which is at the centre of this application was a replacement of the one which the applicant purchased. (d) As a result of the soured relationship which existed between the parties, the respondent sent the applicant on what is termed forced leave with benefits. It did so through a letter which it addressed to the applicant on 12 November 2014. The letter reads: “Ref:HRM/11/14 12 November 2014 Cecilia Sewera 14 Pamvura Street Buffhill Harare HH 553-15 HC 4806/15 Dear Cecilia RE: LEAVE OF ABSENCE Pursuant to the second meeting on negotiations for mutual termination of your employment contract with Straitia, both parties represented by agents agreed that there was need for the employer to give you leave of absence without prejudice with immediate effect whilst the negotiations take place. You will be allowed to operate from home and remain an employee without prejudice and logically we would expect you to co-operate with provision of information or materials as and when it is required, pertaining to sales and marketing operations and any other work related issues. It is our hope that you will co-operate fully with us in order to bring this matter to finality. For & on behalf of Straitia Beverages” (e) The negotiations between the parties collapsed. The respondent wrote to the applicant through its consultant, Stallone Consultancy. It instructed the applicant to return to work if she did not accept the offer which it extended to her on 21 April, 2015. The applicant was given 48 hours within which she had to exercise the option of either accepting the terminal benefits which had been offered or returning to work for, and with, the respondent (f) The applicant’s choice was to return to work, declare a deadlock in the negotiations and refer the matter for conciliation as was agreed to by, and between, the parties when they started to talk about her severance package. She, accordingly, returned to work as had been directed. She, in the same vein, referred the matter which related to her severance package for conciliation. Her letter in that regard is dated 28 April, 2015. It was copied to the respondent. (g) The applicant tabulated the following as having been the matters which the conciliator (s) would deal with: (i) (ii) (iii) (iv) that she be paid 3 years salaries in damages; that she pays $30 000 for the vehicle – that the respondent pays her medical aid for 3 years- and that the respondent pays school fees for her children for 3 years. (h) The conciliation, according to the applicant, was set down for hearing at 10 am of 26 May 2015. She stated that the exercise in question is yet to be conducted and concluded. She did not give any reason as to why it was not dealt with on the scheduled date and time. All what is known, therefore, is that the conciliation HH 553-15 HC 4806/15 will be conducted some time later and, most certainly, after the present application has been concluded. The above mentioned background was given not because the court was desirious of resolving a labour dispute. The background was necessary as a way of placing the preset application into its proper context. The context is that, until the afternoon of 22 May 2015, the applicant enjoyed all her employment benefits without any alteration(s). She enjoyed them notwithstanding the sour relations which existed between the respondent and her. She enjoyed them even when she was given leave of absence from work by the respondent. The respondent was, until the mentioned date, observing and respecting the terms of its contract with the applicant. The applicant stated in her founding affidavit that on the morning of 22 May 2015, she drove her motor vehicle to work. She parked it at the normal parking bay at No. 312 Samora Machel Avenue, Harare. She got into her office and started working. She said at about 1pm of the same day and when she was about to go to lunch, she discovered that her vehicle had been removed from the parking bay where she had parked it in the morning. She stated that she asked the respondent as to the whereabouts of her car and no reasonable explanation was given to her. She said she did not, at the time, know the person who had taken the motor vehicle. She said she, however, suspected that the respondent, which had in its possession the car’s spare key, removed the motor vehicle from where she had parked it in the bay. She, accordingly, applied on an urgent basis for a spoliation order. The applicant argued that she was in peaceful and undisturbed possession of the car prior to her dispossession of the same. She submitted that she was unlawfully and without her consent dispossessed of the motor vehicle. She insisted that she was a good candidate for the order which she was seeking. The respondent’s argument was to the contrary. It stated that the application did not meet the requirements of urgency. The deponent to its opposing affidavit one Jethro Sibanda stated, in some paragraphs of his affidavit, as follows: “13. Upon her return to work, the respondent as it as (sic) perfectly entitled to, commenced disciplinary proceedings against the applicant in terms of the National Code 14. To this end, the applicant was suspended without pay and benefits by letter dated 21 May 2015 a copy of which is attached hereto marked A1. 15. The letter of suspension was served on the applicant the following day being Friday 22nd May 2015 around noon. On this day, I had the opportunity to advise the applicant that she had been suspended from work without pay and benefits in terms of the National HH 553-15 HC 4806/15 Code and that a letter of suspension was to be handed to her by my Personal Assistant just after 12 noon on the same date but unfortunately the applicant refused to accept delivery of the letter of suspension. She did not explain the reason why she was not accepting the letter of suspension that was handed to her. In this regard, I attach hereto marked as B1 a supporting affidavit by my Personal Assistant Patience Ncengani. 16. Realising that the applicant had refused to take possession of the letter of suspension, we arranged for service of the letter of suspension through DHL and I attach herewith marked C2 a copy of the return of service of the letter of suspension by DHL. After advising the applicant of her suspension and after realising that she was refusing to take delivery of the letter of suspension, the respondent was obviously suspicious of the applicant’s intention. In particular, we suspected that it was not her intention to surrender the motor vehicle despite being suspended without pay and benefits. The respondent therefore feared that the applicant was going to take the motor vehicle with her a situation which was going to be quite unpleasant particularly in view of the fact that the motor vehicle in question does not belong to the respondent it being on lease hire agreement with African Century…. 17. Because of this, I instructed my employees to take the spare keys which the respondent always kept and drive the motor vehicle to a safe place. True to our suspicion, the applicant was furious demanding the motor vehicle and since she was on suspension with no salary and benefits, nobody spoke to her ….” [emphasis added] The respondent removed the motor vehicle from the applicant on the afternoon of 22 May, 2015. The applicant filed the present application one working day after the event. She, therefore, treated her application with the urgency which the matter deserved. The court was at a loss when the respondent made an effort to impress upon it that the application did not meet the requirements of urgency. The present is an application for a relief which is commonly referred to as mandament van spolie. The remedy is adequately discussed in Maasdorp’s Law of Things, Volume II, 8th Ed, p 21 where the learned author states: “The mandament of spoliation applies to cases in which a person has been deprived of the possession of movable or immovable property, by force or violence, or by stealth or where possession is obtained illegally, its object being to set aside the forcible or illegal dispossession with all its effects and to restore everything to the state in which it was before the act of spoliation was committed”. It is taken as given that the applicant was in peaceful and undisturbed possession of the motor vehicle. The car was taken away from her without her consent. The respondent’s opposing papers stated as much. It said she was furious when she discovered that her car had been taken away from her. The respondent took the motor vehicle from her in a stealth manner. Its opposing papers stated that spare keys were used to remove the car from where it was parked and have it kept at some place which was not known to the applicant. HH 553-15 HC 4806/15 The parties would know that when the present application was referred to me for my attention, I declined to set it down for hearing. My reasons at the time were based on what the applicant had stated in her affidavit. She said she did not know the person(s) who had taken her car from where she had parked it on the morning of the day of its disappearance. She stated that she suspected that the respondent, by use of spare keys which it had in its possession, had taken it. My impression was that no order could be made against an unknown spoliator nor could any court order be made against the respondent to return to her the motor vehicle when it was known if it had taken the motor vehicle. The respondent’s opposing papers which it filed with the court on 29 May, 2015 and served on the applicant cleared the air which related to the disappearance of the motor vehicle. Paragraphs 13-17 of the respondent’s opposing affidavit which I quoted in extensor in the foregoing portions of this judgement are pertinent. The averments showed in clear and unambigious terms that the respondent had stealthily taken the motor vehicle from the applicant’s possession. On 4 June 2015 and after she had learnt of the whereabouts of her car, the applicant addressed a letter to the registrar of this court. She requested that the application be heard on an urgent basis. On the strength of those fresh facts which had emerged, I had no hesitation but to set the matter down for hearing. The respondent’s submission which was to the effect that it removed the motor vehicle from the applicant’s possession in terms of what it said was “the National Code” could not hold. It was aware as far back as 28 April 2015 that: (a) negotiations between the applicant and itself had collapsed; (b) the dispute between them had been referred for conciliation -and (c) amongst the issues which were tabled for conciliation was the possibility of the applicant purchasing the vehicle and the to - be agreed price for the same. It resorted to self-help some four days before the scheduled date on which the parties were to appear before a conciliator or conciliators. Its purported internal disciplinary action was a nullity. It had no force of law at all. Its actions in stealthily removing the motor vehicle from the applicant who enjoyed undisturbed control, use and possession of it was not, and is not, supported by law. Its averments which were to the effect that the car was on lease hire agreement would not support its case either. That is so because it, in fact, offered to sell HH 553-15 HC 4806/15 that same car to the applicant. It made that offer to her when the parties were negotiating the applicant’s exit package. Maasdorp correctly stated in his Institutes of South African Law, Vol II, Law of Things, 8th Ed, p 20 that: “The effect of possession is to entitle the possessor to retain the thing possessed by him and to resist any attempt to deprive him of it or disturb him in his possession without judicial authority, for no one may be dispossessed, even upon the ground of ownership or a superior right in the party attempting to dispossess, except under an order of a competent court or when dispossession is authorised by statute or where the rightful owner is retaking goods from a person who has dispossessed him by force or stealth”. The court is satisfied that the respondent’s conduct did not fall into any of the three exceptions which Maarsdorp enunciated. The respondent’s purported disciplinary action was and is a nullity. The respondent hoped to use that as a reason for dispossessing the applicant of the motor vehicle which she lawfully possessed. The respondent’s conduct was unlawful and should be frowned upon. It acted in a stealthily manner. It should have approached the court for a proper remedy. Alternatively, it could have ventilated the matter which pertained to the applicant’s possession of the car during conciliation. It ignored all legally accepted avenues of resolving disputes and resorted to self-help. The parties must, in the premise, be restores to their status quo ante. They are both urged to desist from applying the law of the jungle. They should always endeavour to resolve their disputes through legally accepted channels as the applicant in casu did. The court has considered all the circumstances of this case. It is satisfied that the applicant proved her case on a balance of probabilities. The application is, accordingly, granted with costs. Kadzere, Hungwe & Mandevere, applicant’s legal practitioners Atherstone & Coook, respondent’s legal practitioners