RioZim (Pvt) Ltd. v Kaserera & Ors (HC 10472 of 2013) [2016] ZWHHC 76 (27 January 2016)

1 HH 76-16 HC 10472/13 RIOZIM (PRIVATE) LIMITED versus ANDREW KASERERA and JOHN SIBANDA and JULIUS MAYUNI and SYDNEY MANDIDI and MECK NCUBE and MAJORA LEMBACHURU and THE REGISTRAR OF VEHICLES HIGH COURT OF ZIMBABWE CHIGUMBA J HARARE, 13 January 2016, 27 January 2016 Civil Trial AP Debourbon, for the plaintiff T Marume, for the 1st-7th Defendants CHIGUMBA J: The plaintiff is a company which is duly registered in accordance with the laws of Zimbabwe. The first to seventh defendants are all current or former employees of the plaintiff. The seventh defendant is a public office established in terms of s 3 of the Vehicle Registration & Licensing Act [Chapter 13:14], which is responsible for the registration of motor vehicles in Zimbabwe. Plaintiff issued summons against the first to sixth defendants on 5 December 2013, for an order that each defendant return the motor vehicle which had been allocated to it, forthwith, together with all registration books, and that each defendant bears the costs of this action, jointly and severally, the one paying the others to be absolved. The plaintiff’s claim as against the seventh defendant is for an order that he cancels the registration of the motor vehicles in question in the defendants’ names, which was effected in January 2013, in respect of the motor vehicles allocated to each defendant whose full particulars appear in para 12 of the plaintiff’s declaration, so that his records reflect that ownership of the vehicles in question is HH 76-16 HC 10472/13 vested in the plaintiff. The plaintiff’s action against each defendant arises from their alleged unlawful conduct in January 2013 when they caused the motor vehicles to be allocated to each and one of them and to be transferred into their own names, despite not being entitled to do so in terms of the plaintiff’s motor vehicle policy. According to the plaintiff’s declaration, the plaintiff purchased vehicles in own name in terms of its employment code, which vehicles it allocated to the defendants, at its discretion. Prior to 1 January 2013, it was a term of the employment of such employees to whom such a vehicle had been allocated that after a passage of four years from the date of such allocation, the vehicle would be transferred into the employee’s name. The employee would meet the transfer costs. With effect from 1 January 2013, plaintiff altered the terms of employment and removed the right of any employee to whom a vehicle had been allocated to transfer the vehicle into their name. During the period 2008-2009, the plaintiff purchased the six vehicles in issue, and allocated them to each of the six defendants. Notwithstanding that the period of four years had not lapsed in respect of each of the six defendants, and despite the change in the plaintiff’s motor vehicle policy, during January 2013 each of the six defendants caused the motor vehicle allocated to them to be transferred into their own name. The seventh defendant caused the change of registration of the motor vehicles from the plaintiff’s name, into the names of each of the six defendants. The plaintiff maintains that it remains the owner of the six vehicles despite the change of name effected by the seventh defendant, and demands the return of the six vehicles to it, and the change of ownership of the six vehicles, from the names of the six defendants, back into its own name. On 20 December 2013, the six defendants entered appearance to defend, and filed their plea on 31 January 2014. In terms of the six defendants’ plea, it was averred that the allocation of vehicles to them was a right enshrined in their contracts of employment; the plaintiff could not unilaterally vary that contractual term and lacked the discretion to change the contractual term on its own; the plaintiff remained bound by the contract and could not legally alter a material term of the contract; each defendant’s four year period had lapsed and each defendant was entitled to take transfer of the allocated motor vehicle; Mr. Mawire the human resources manager deposed to the affidavits which some of the defendants relied on to take transfer of the allocated motor HH 76-16 HC 10472/13 vehicles signifying the approval of management to the transfers; plaintiff lacked the requisite authority to dispossess the defendants of the vehicles which were now in their names. The following issues were referred to trial at the Pre-Trial Conference on 28 November 2014; 1. Whether or not the plaintiff is the true owner of the motor vehicles in question. 2. If the answer is in the affirmative, whether or not the plaintiff is entitled to the delivery of the motor vehicles and their registration into its name. 3. Whether or not the transfer of the motor vehicles to the first to sixth defendants was legally and properly done. The onus is on the plaintiff in respect of the first two issues, and on the defendant in respect of the third issue. At the hearing of the matter the plaintiff called one witness, Mr. Moses Mawire, who has been in its employ since 2007, to date, as a Human Resources manager. He told the court that; Prior to 2008 the plaintiff’s employees of grade 16 and above were allowed the use of a company motor vehicle in terms of the motor vehicle purchase scheme. In 2007 a new policy was introduced which included grades 14 and 15 in the motor vehicle purchase scheme. The Company vehicle policy appears at record page 3 of exhibit 1, the exhibits consolidated index bundle of documents. Paragraph 3 of the introduction reads as follows;- “Inevitably changes in conditions of service and Company policies will occur. New schemes will be introduced and existing ones modified. Notification of any changes, which may only be authorized by the Chief Executive, will be circulated to mine managers/heads of departments in the usual manner…” The guideline to the company vehicle policy appears at record pp 4 and 5, and at p 6 appears the change in policy to incorporate grades 14 and 15. The revision of the motor vehicle policy in January 2007 stated that;- “Employees in grades 14 and 15 will be allocated company cars on a five year cycle. The car is allocated under the following conditions; - 4. Ownership of the vehicle will be transferred to the employee at the end of the fourth year of the five year cycle. The employee will be expected to meet the total and full cost of the transfer of ownership. 5. In the event of the employment being terminated before the end of the fourth year of the five year cycle and the transfer of ownership, the vehicle will be retained by the company.” Each employee would sign this document on the date of allocation of a motor vehicle by the plaintiff. On p 10 of exh 1 is the agreement on allocation of a vehicle for grades 14 and 15 which would be signed on allocation of a company vehicle. At p 13 is the Chief Executive HH 76-16 HC 10472/13 Officer’s special brief to all grades 11+ employees on rationalization of costs, dated 21 December 2012. It talks about the plaintiff’s huge debt burden, and a requirement that it streamline its overheads in order to meet its working capital requirements and to survive in the future. The measures implemented by the company announced themselves to be in conformity with s 12 D of the Labour Act [Chapter 28:01]. The company car policy was terminated and it was stipulated that all company cars would remain the property of the plaintiff indefinitely, with effect from January 2013. Only the six defendants were adversely affected by the change in the company vehicle policy. There was a political gathering at the mine on 22 December 2013 organised by the local Member of Parliament. By 14 January 2013 there was a disturbance at the mine, a blockade where senior staff members were prevented from entering the mine by people from the nearby village and surrounding local communities. On 19 January 2013 a second meeting was held between the local MP, The local senator Mr. Mavhaire, and Mr Dzingirai, management, and locals, at which Mr. Dzingirai purported to suspend the CEO and gave certain directives on how the plaintiff was to run in future. A directive was given that the six defendants be given the company vehicles which they had been allocated in terms of the company vehicle policy. The witness issued a standard template letter in terms of which he gave effect to that directive. The minutes of a management meeting held in the plaintiff’s conference room with the Honorable Dzingirai were attached at record pp 81-83 of exh 1. The minutes show that a directive was given that the old company vehicle policy be resuscitated, at p 82, clause 8. The witness told the court that he issued letters in respect of each of the six defendants to enable them to transfer the vehicles previously allocated to them in terms of the company vehicle policy. A copy of the standard letter appears at p 17 of exh 1. The standard affidavit is at p 18. The letter confirms that a certain vehicle had expended its economic life in terms of plaintiff’s company vehicle policy and has been handed over to a named individual as his personal vehicle. He said that he did so under duress, due to the political pressure and the pressure cooker environment that prevailed at the mine at the relevant time. He was afraid for his life, he had to flee the mine and find a place to stay in Triangle on two occasions when he had been threatened with violence. Mr. Mawire confirmed that he issued each of the six defendants with the standard letter despite the fact that none of them were entitled to take transfer of a company vehicle or to HH 76-16 HC 10472/13 be issued with one in their personal capacities. He did so without the authority of his superiors, because of political pressure and fear of violence. All communication with head office had been suspended and tensions were high at the mine which was under the control of Mr. Dzingirai. The politicians were demanding that the plaintiff hand over its majority shareholding to them, to be held in trust for the local community, in line with the country’s indigenization policy. Subsequently, under case number HH 85-13, order was restored at the mine, and the politicians were ordered to relinquish the control which they had taken by force, back to the plaintiff’s management and board of directors. All those who had got the letters to transfer the vehicles into their names were on the company vehicle scheme. Those who did not qualify, who had never been allocated vehicles in terms of this scheme, were not given any letter. Mr. Dhlamini got the standard letter but opted not to effect the change of ownership because he knew that he was not entitled to take transfer in terms of the motor vehicle scheme as it stood. It is common cause that when the motor vehicles were initially allocated to the defendants, they were registered in the name of the plaintiff. During cross examination the witness told the court that he was the custodian of the motor vehicle policy as the Human Resources Manager. He said that each defendant could only take transfer of an allocated vehicle where a period of four years had elapsed from the date of allocation, and not a day before. He said that none of the six defendants were entitled to a company vehicle at the date when he was forced to issue letters to them, because at that date, none of them had had the allocated vehicle for a period of four years as stipulated by the company policy, and further, the CEO had changed the company motor vehicle policy to take away their entitlement to transfer of the allocated vehicles. The plaintiff then closed its case and the defendants called Mr. John Sibanda, the second defendant to testify on their behalf. The witness told the court that at the material times he was employed by the plaintiff as a Geologist and that he is still currently in the plaintiff’s employ. He said that he signed a contract of employment and that he was allocated a motor vehicle in terms of that contract in January 2010. He was aggrieved when the CEO issued the directive at the end of 2012 that the company vehicle policy had been altered and that no one would be allowed to take over any allocated vehicle in their personal capacities. He was not consulted when the company vehicle policy was altered. He did not consent to the alteration. Despite engaging management over this grievance nothing was done. The strike which took place at the mine was HH 76-16 HC 10472/13 not instigated by the workers, but by local politicians and the local community which was demanding a community share trust in terms of the Indiginisation policy. On 20 February 2013 when the strike ended the witness was told by his superior to go and get a letter from Human Resources to enable him to transfer his allocated company vehicle into his name. There was no duress on anyone to issue the letter or depose to the affidavit which he and his five co-defendants used to effect change of ownership. Mr. Sibanda signed a contract of employment with the plaintiff in June 2008; see pp 36- 38 of exh 1. His contract stipulated that he was to be allocated a company vehicle at the end of his three month probationary period. The vehicle never materialized at the agreed time. He assumed that the economic life cycle of his vehicle began to run after his probationary period. He did not view the date of actual allocation as the operative date from which to begin to calculate the economic life cycle of the vehicle, or the four year period which had to elapse before the vehicle could be transferred to him. The cycle starts when the vehicle is acquired by the plaintiff, not when it is allocated. His vehicle was first used as new in December 2008, and therefore its cycle had reached the agreed period at the time that he took transfer. This applies to all his co defendants. The purpose of the motor vehicle policy was to retain staff by providing an attractive remuneration package. During cross examination the defendants’ witness told the court that he signed his contract of employment on 5 June 2008. He admitted that in terms of the contract of employment he was promised the use of a company vehicle. He was not made to understand that everything depended on the allocation of a company vehicle. When he signed the contract of employment he did not have sight of the plaintiff’s motor vehicle policy it was explained to him, and it was not made clear that the operative date was the date of allocation of the vehicle. As far as he was concerned, the operative date was the fourth month of employment, when the three month probationary period expired. He admitted to having been allocated with a company vehicle on 4 February 2009. He denied that he was only entitled to take transfer on 4 February 2013. He told the court that the standard letter which he used to effect transfer was handed to him by Mr. Mawire’s secretary. He accepted that at the time that the CEO changed the motor vehicle policy on 21 December 2012, the plaintiff was in dire financial straits. He disputed that the plaintiff had an exclusive right to change the motor vehicle policy in those circumstances. HH 76-16 HC 10472/13 The issue that falls for determination in this matter is whether, in terms of the contract of employment as read with the motor vehicle policy, the date on which the five year cycle began to run was the date on which each employee completed a three month probationary period, the date on which the plaintiff actually purchased the vehicle in question, or the date on which the vehicle was allocated to each individual defendant. The question of whether the allocation of the vehicle to each defendant is material, as opposed to the vehicle’s economic life cycle, caused much confusion to the defendant’s witness during cross examination. The court will have to determine whether the defendants were entitled to take transfer of the motor vehicles which had been allocated to them in terms of their contracts of employment, or whether such entitlement fell away entirely when the plaintiff’s motor vehicle policy was altered by the CEO in December 2012. It is common cause that the contract for the use of motor vehicles belonging to the plaintiff was based on a five year cycle which relates to the period permitted for the write off of capital expenditure in terms of the 5th schedule to the Income Tax Act [Chapter 23:06]. The approach to be taken by the court in the interpretation of contracts is clear. See Coopers & Lybrand v Byrant 1, applied in Zellco Cellular Private Limited v Post & Telecommunications Corp Trading as NetOne2, Hingeston v Lightfoot3, Metro International Private Limited v Old Mutual Property Investment Corporation Private Limited & Anor 4. The submissions made on behalf of the defendant are on point when it comes to the applicable law, but the court is hard pressed to appreciate how that law as correctly stated is of assistance to them or to their case. It is a correct statement of law to say that the courts should not rewrite a contract entered into by parties or excuse them from the consequences of a contract which they entered into freely and voluntarily. See Kundai Magodora & Ors v Care International Zimbabwe5. I am unable to agree with the submission made on behalf of the defendants that there is any ambiguity in the use of a word or choice of expression which leaves the court unable to 1 1995 (3) SA 761 @ 767E-768E 2 1998 (2) ZLR 106 (HC) @ 108-109 3 1999 (2) ZLR 281 (HC) @ 286 4 2007 (1) ZLR 408 (SC) @ 414 5 SC 24-14 HH 76-16 HC 10472/13 decide which of the two meanings is correct, in any of the provisions of the contract of employment, or the company vehicle policy. There is thus no scope for the court to resort to the contra proferentum rule as the defendants urge. It is common cause that in that five year cycle plaintiff retained rights of ownership over the vehicles even though in terms of clause 4 (Exhibit 1, p 6) there is a provision relating to the transfer of ownership. Clause 6 (Exhibit 1 p 7) reads;- “In the event of employment being terminated after the fourth year of the five-year cycle and transfer of ownership, the employee will be allowed to purchase the vehicle from the company at the prevailing market rates prorated to the remaining portion of the five year cycle”. This means that even though transfer of ownership may have accrued in terms of clause 4 at the end of the fourth year of the cycle, the plaintiff would be entitled to be paid a pro rata amount during the fifth year in the event of the employee leaving its employment. It is only at the end of the fifth year that the motor vehicle accrues to the employee free of any rights or encumbrances in favor of the plaintiff. Neither the policy document (exh 1, pp 6-12), nor the contract document (exh 1, pp 14- 15) makes use of the expression ‘expended its economic life cycle’. I accept the submissions made on behalf of the plaintiff that this wording is used in a standard form letter held on the computer of the Human Resources Manager. The wording of that letter cannot alter the terms of the parties’ contract. The letter’s purpose is to assist in the transfer and registration of the motor vehicle. The economic life cycle of a motor vehicle is an accounting concept, and has no relevance to the rights of any of the defendants. Clause 6 makes it clear that the contract is subject to the conditions laid out in the company policy, a copy of which is given to each employee on signature of the contract of employment. The company policy makes it clear the five year cycle is related to the allocation of the company vehicle, and not any other factor. It could not relate to any period during which the plaintiff sought to claim capital expenditure in terms of the laws relating to taxation. It could not be related to a period from when the entitlement to enter into such a contract arose. I accept that the five year cycle began to run on the date when each defendant was allocated a company vehicle. It is common cause that for the third and sixth defendant the four year cycle from the date of allocation of each of their company vehicles was reached prior to 21 January 2013 when they were issued with letters authorizing the registration of their vehicles. HH 76-16 HC 10472/13 The first and second defendants were close to the conclusion of their four year cycles, but they had not reached them as at 21 January 2013. The fourth and fifth defendants were nowhere near the completion period because their vehicles were allocated In October 2011 and July 2012. The first, second, fourth and fifth defendants did not have a right, as at 21 January 2013 to transfer the registration of their company vehicles into their own names, if the terms of the contract of employment are applied. They clearly took advantage of the situation that existed at the mine rather than waiting for the requisite period to expire. The third and sixth defendant’s entitlement depends on whether the change in the company vehicle policy in December 2012 was valid, and binding on the defendants. (See exh 1, p 13). It is common cause that all motor vehicles were purchased by the plaintiff and were the property of the plaintiff until the fourth year of the five year cycle. The defendants had a contractual right to use the vehicles for business and for private purposes. In Nyahora v CFI Holdings Private Limited6, the court said that;- “It may be mentioned here that in most cases the option granted by an employer to purchase a used car is a privilege accorded to its employees perhaps in the hope that this will induce loyal service as well as a culture of caring for the company property or some other reason beneficial to the employer/company. Therefore, unless the contract specifically states so, a court ought to be careful not to read a legal right into a policy matter which is at the discretion of the employer. In my judgment the question of a right to purchase could only arise after an offer had been made to and accepted by, the employer to purchase the vehicle and not before”. (the emphasis is mine) My reading of the contract of employment is that it stipulated that the company vehicle policy could be changed entirely at the discretion of the CEO. This view is buttressed by para 3 of the introduction to the company vehicle policy (exh 1, p 3) which addresses the inevitability of conditions of service and company policies changing. New schemes and the modification of existing ones are alluded to. as well as the following;- “… Notification of any changes, which may only be authorized by the Chief Executive, will be circulated to mine managers/heads of departments in the usual manner…” My reading of that sentence is that any changes of policy may only be authorized by the CEO, which he did in December 2012. There is no stipulation that the changes be in consultation with the employees. There is no stipulation that the change should be for the better, or for the 6 SC 81-14 HH 76-16 HC 10472/13 benefit of the employees only, as opposed to change which takes away some of their entitlements. The wording denotes discretion on the part of the CEO, as shown by the use of the word ‘may”. The caution which we must exercise as set out Nyahora’s case, is to be careful not to read a legal right into the plaintiff’s company car policy, which in my view, was at the discretion of the employer. It has been held that;- “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 anyone 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 the 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 must be defeated by a defendant who pleads a claim of retention or some contractual right to retain the property”. Nyahora (supra). We have found that defendants do not have a contractual right to the vehicles in question. The defendants do not have a claim of retention. What remains to be seen is whether the defendants are in possession of the motor vehicles with the consent of the plaintiff. The circumstances which prevailed at Renco Mine in January 2013 were fully set out in the judgment of this court Rio Zimbabwe Ltd v Dzingirai & Ors HH 85-13,( exh 1, pp 76-80), at pp 78-79 of the judgment where the court made the following findings:- “There is clearly an illegal move which has been taken by the respondents of taking over the applicant’s company and thus disrupting activities thereon. Such a chaotic unlawful takeover of necessity requires urgent intervention, so as to arrest the undesirable….the facts of this case clearly show unlawful invasion and dispossession of a legally owned incorporated entity under the guise of resolving a labour dispute…or the guise of being parliamentary representatives….in what is clear self help and disregard of the law…”. The evidence before this court shows that political figures sought to oust the management of Renco Mine and operate as though they were the mangers. The minutes of 21 January (exh 1 pp 81-83) are relevant, in that, taken together with the findings of this court which have been set out above, they corroborate the evidence of Mr. Mawire for the plaintiff that he acted out of fear of violence because of the tense situation at the mine brought on by politically motivated disturbances. The evidence shows that there was an element of self help on the part of the defendants who knew that they were not entitled to the transfer of the vehicles because the fourth year of the five year cycle had not yet lapsed, or alternatively that the CEO had changed the motor vehicle policy to their detriment. There was no consent on the part of the plaintiff to the HH 76-16 HC 10472/13 defendants’ possession of its vehicles, or change of ownership into their names, or acquisition as their personal property. The plaintiff was clearly deprived of its property against its will. It has a right in law to recover its property from the three defendants who have left its employ. The three defendants who are still employees of the plaintiff are entitled to the use of the vehicles, though not to acquisition or to have the vehicles registered in their names. The first, third and fourth defendants have left the plaintiff’s employ and are not entitled to the use of the vehicles. That no man is allowed to take the law into his own hands is an age old and fundamental principle. No one is allowed to dispossess another forcibly or wrongfully and against his consent to the possession of the property. See Nino Bonino v DeLange7, Botha & Anor v Barrett8, Shiriyekutanga Bus Service Private limited v Total Zimbabwe9, Mutsinya v Dande Holdings Private Limited & Ors10, Mutanga v Mutanga11, Manduna v Mutizwa12, Kama Construction Private Limited v Cold Comfort farm Co-operative & Ors13, H v H14, and Free Methodist Church of Zimbabwe v Dube & Ors15. This court is persuaded that, the actions of the defendants, done at a time when there was chaos at Renco mine and confusion as to the proper management structure, resulted in wrongful dispossession of rights in respect of thse motor vehicles by the defendants against the plaintiff. The status quo ante must now be restored. The parties can deal with their rights thereafter. For these reasons, the plaintiff’s claim is allowed, with costs as against the first to sixth defendants. In the result, it be and is hereby ordered that;- 7 1906 TS 122 8 1996 (2) ZLR 73 (SC) @79 9 2008 (2) ZLR 37 (HC) @ 39 10 2008 (2) ZLR 102 (HC) @104 11 2013 (2) ZLR 103 (HC) @107 12 1992 (2) ZLR 90 (SC) @92 13 1999 (2) ZLR 19 (SC) @ 21 14 1999 (2) ZLR 358 (HC) @369 15 2012 (1) ZLR 103 (HC) @112 HH 76-16 HC 10472/13 1. The first third and fourth defendants shall deliver the motor vehicles which were allocated to them by the plaintiff to it within 48 hours of the date of this judgment. 2. The second, fifth and sixth defendants who are current employees of the plaintiff shall be entitled to retain the use of the vehicles allocated to them by the plaintiff for as long as they remain in the plaintiff’s employ, in terms of the plaintiff’s company vehicle policy. 3. The first to sixth defendants shall deliver to the plaintiff the registration books in relation to the vehicles allocated to them in terms of plaintiff’s company vehicle policy, within 48 hours of the date of this judgment 4. The seventh defendant shall cancel the registration of the motor vehicles in question effected in January 2013 in respect of each motor vehicle allocated to each defendant by plaintiff forthwith, on service of this order on it, in the names of first to sixth defendants, so that its records reflect that the ownership of the vehicles is vested in the plaintiff. 5. The first to sixth defendants shall bear the seventh defendant’s attendant costs, jointly and severally, the one paying the others to be absolved. 6. The first to sixth defendants shall bear the costs of this suit jointly and severally, the one paying the others to be absolved. Gill, Godlonton & Gerrans, plaintiff’s legal practitioners Matsikidze & Mucheche, defendants’ legal practitioners