Tobacco Industry and Marketing Board v Muvirimi (843 of 2022) [2022] ZWHHC 843 (21 September 2022)

1 HH 843-22 HC 5978/22 TOBACCO INDUSTRY AND MARKETING BOARD and SAVIOR MUVIRIMI HIGH COURT OF ZIMBABWE ZHOU J HARARE, 21 September 2022 Urgent Court Application J Mandevere, for the appellant C Tafirei, for the respondent ZHOU J: This is an urgent court application for an actio rei vindicatio in respect of a motor vehicle, a Toyota Hilux (Double Cab) Registration No. AFU 9680. The motor vehicle belongs to the applicant. It was allocated to the respondent for use as an employment benefit. It is common cause that the respondent is no longer an employee of the applicant, having been retrenched and given his retrenchment package. The respondent opposes the application. In addition to contesting the matter on the merits, the respondent raised two objections in limine. The second objection was abandoned at the hearing. However, the respondent persisted with the objection to the urgent hearing of the matter. I dismissed the objection and indicated that reasons therefor would be given in the final judgment. A matter is urgent if it cannot wait to be dealt with as an ordinary court application. In this case, the subject of the application is a motor vehicle which is susceptible to wear and tear and even to damage in the course of use by the respondent. Given that the respondent is no longer an employee of the applicant it cannot be assumed that the same care which he gave to it when he was an employee would prevail, especially given the ongoing dispute between the parties. The respondent pointed to a series of events which preceded the filing of the application as having deprived the matter of its urgency. But the retrenchment was only approved on 16 August 2022, just about three weeks before the application was instituted. After the approval of the retrenchment the applicant did not sit on its rights, as it wrote a letter dated 23 August 2022 demanding the return HH 843-22 HC 5978/22 of the motor vehicle. The respondent responded to that letter on 24 August 2022 expressing his unwillingness to return the motor vehicle. By letter dated 2 September 2022 the respondent was referred to legal authorities which clearly show that he has no basis to retain the possession of the motor vehicle after his contract of employment was terminated. The urgent application was instituted four days later on 6 September 2022. Clearly, the applicant consistently treated the matter as urgent. The objection that the matter is not urgent is therefore meritless hence its dismissal. On the merits, both parties accept that all the requirements for the actio rei vindicatio are established. These are that: a) the applicant is the owner of the property in dispute, and b) the respondent has possession of the property without the consent of the applicant. In this case the respondent unilaterally changed the basis of his possession of the motor vehicle because he is not claiming to be in possession thereof on the basis upon which it was allocated to him. The only issue for determination is whether the respondent has the right to retain the possession of the motor vehicle. Put in other words, the issue is whether the respondent has advanced any valid defence to an actio rei vindictio. The defences to such an actio are known and require no recital. Respondent states that he has the right to possess the motor vehicle because clause 12.2 of the applicant’s motor vehicle policy states that on termination of service by retrenchment the vehicle benefit shall be handled in terms of the negotiated retrenchment package. He is clearly mistaken because that clause does not state that he has ius retentionis in respect of the motor vehicle. In any event, the package offered to him which was approved did not include the motor vehicle. Even if there was scope for negotiation at this juncture, a matter that falls outside the scope of this application, such negotiations would not constitute a valid defence to the actio rei vindicatio. For the above reasons, there is no legal ground for the respondent to hold on to the property. Applicant has sought costs on the attorney client scale. These are a special order of costs that is granted in exceptional circumstances. In this case the defence is meritless. However, the applicant may have acted on legal advice regarding the meaning of clause 12.2 discussed earlier on. He may be mistaken but there is nothing to show that he was not genuinely mistaken to the HH 843-22 HC 5978/22 extent of ascribing mala fides on his part. The clause in question was not in the cases which have been cited, hence this case must be distinguished from them on that account. Accordingly, it is just that costs be on the ordinary scale. In the result, the relief is granted in terms of the draft order as amended by the deletion of the reference to attorney-client costs. Kadzere Hungwe & Mandever, applicant’s legal practitioners Tafirei & Company, respondent’s legal practitioners