NATIONAL BIOTECHNOLOGY AUTHORITY v MUFANDAEDZA (335 of 2024) [2024] ZWHHC 335 (6 August 2024)

NATIONAL BIOTECHNOLOGY AUTHORITY

versus

JONATHAN MUFANDAEDZA

HIGH COURT OF ZIMBABWE

CHINAMORA J

HARARE, 6 August 2024

Opposed Application

Mr P Dube, for the applicant

Adv S Hashiti, for the respondent

CHINAMORA J:

This application is in the nature of a rei vindicatio, wherein applicant seeks to recover motor vehicle and other property which, the applicant contends, is in the respondent’s possession unlawfully. In addition, the applicant asks the court to grant related relief. This following the termination of his contract of employment with effect from 2 April 2019.

The facts which birthed these proceedings are that: Sometime in March 2013, the applicant engaged the respondent as the Chief Executive Officer on a contract of fixed term duration of five years. The contract provided the respondent with possession and use of a company motor vehicle, namely, Land Rover Discovery 6 registration number AEX 3353. At all material times, during the subsistence of the employment contract, ownership of the said vehicle remained with the applicant, and at no point was it transferred to the respondent. The respondent’s contract of employment was terminated following serious charges of misconduct amounting to abuse of office, including taking fuel in excess of his entitlement. The alleged misconduct also included taking allowances for private trips to and from his children’s school in Masvingo, failing to account for foreign currency taken for foreign trips and other similar gross acts of misconduct. The letter of termination, inter alia, requested the respondent to return the vehicle and other company property. Despite demand, the respondent did not return the applicant’s motor vehicle and other property. It on this basis that the applicant has approached this court seeking the return of the aforementioned property to its possession.

The application is vehemently opposed by the respondent who denies committing acts of misconduct. He notes that he has referred the matter to the Ministry of Labour in terms of s 8 (6) of the National Code. As regards the disciplinary hearing, it is respondent’s case that it was a nullity and he excused himself from the hearing since one Mr Chagonda exhibited bias against him. On the issue of ownership of the property in question, the respondent submitted that he purchased the motor vehicle. Additionally, with respect to the property, namely, Apple Iphone, Apple Ipad, Nokia Lumia, Nokia Lumia, Apple I phone 8, Samsung Galaxy J, the respondent argues that they were his property.

In its answering affidavit, the applicant maintained that the property in question belongs to it and further raised a preliminary point to the effect the respondent’s affidavit was not commissioned. I wish to deal with this issue before dealing with yet another issue arising in this matter. A perfunctory perusal of the affidavit shows that the respondent’s affidavit was commissioned. The commissioner of oaths is clearly identified as a Mr Sosono, a legal practitioner practicing under the name and style Sosono and Partners in Chinhoyi. Consequently, the preliminary point by the applicant lacks merit.

The respondent failed to file his heads of argument timeously and filed an application for condonation for late filing of heads of argument under HC 4102/21. The parties agreed that I deal with the matter so that the dispute between them may be expeditiously resolved to finality. It is in that basis that I granted the application.

On the merits, the applicant has approached court as indicated above seeking to vindicate its property from the respondent. In the case of Lafarge Cement (Zimbabwe) Limited v Chatizembwa HH 413-18, mathonsi J stated that:

"Indeed, the principle of the actio rei vindicatio is that an owner cannot be deprived of his or her property against his will.... proof of ownership shifts the onus to the possessor to prove a right of retention. See Jolly v Shannon and Anor 1998 (1) ZLR (H) at 88 A-B; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H)... "

From the above dictum, it is the position of the law that actio rei vindicatio is a remedy available to an owner of the property as against the whole world. The basis of this principle is that an owner of a property cannot be deprived of his or her property against his or her will. The documents before this court shows that that the ownership of the motor vehicle did not pass to the respondent. The applicant remains the owner of the motor vehicle to date. The respondent’s contention that he has or had the right to purchase does not in any way interfere with the fact that as this matter is being litigated ownership vests in the applicant. The fact that there exists the right of first refusal is not synonymous with an obligation on the owner to sell the property. In Chitungwiza Municipality v Karenyi HH 93-18 the court held that:

“It is common cause that by the time of his resignation the applicant had neither made a decision to dispose of the vehicle and the gadgets nor offered the said property to the respondent for sale. In my view the ownership of the vehicle and the other gadgets remained vested in the applicant. I therefore agree with the applicant’s argument that by ceasing to be an employee of the applicant the respondent’s possession and use of the gadgets also ceased unless they had been offered to the respondent to purchase.”

It is not in dispute that the respondent was the Chief Executive Officer of the applicant, and that at the time he left the applicant’s employ, he was not given an offer to purchase the said motor vehicle. The motor vehicle remains the property that of the applicant and the applicant has the right to vindicate against its property. See Savanhu vs. Hwange Colliery Company SC 08/15 an Nyahora v CFI Holdings Private Limited SC 81/2014.

I now turn to the issue of statements made by some members of staff that the gadgets belonged to the respondent. A closer analysis of the evidence of Nontando Mkandla clearly details how the respondent abused his office and plundered funds of the applicant. The part referred to on paragraph 6 of the respondent’s affidavit on the purchase of a motor vehicle for the Chief Executive Officer was quoted to show how the respondent doctored minutes of the board meeting. The statement by Mary Marume shows that there is no reference to the purchased items being respondent’s personal items. The fact that they were recommended for purchase did not in any way entail that they were the respondents’ personal property. The interpretation proffered by the respondent on the above statements is clearly not correct and cannot be supported.

The fact that the applicant remains aggrieved by the decision of his dismissal from employment does not in any way defeat this application. In Larfarge Cement Zimbabwe v Chatizembwa supra, mathonsi J (as he then was) correctly (in my view) said:

“I have stated before that an employee who has lost employment has no right to hold onto property of the former employer allocated to him or her by virtue of employment as a condition of employment merely on the grounds that he or she is challenging the termination of the employment contract. See Montclaire Hotel and Casino HH 501/15. The point is also made in William Bain and Co Holdings (Pvt) Ltd vs. Nyamukunda HH 309/13 that a former employee cannot lawfully confiscate or hold onto a former employer’s property after termination of the employment contract because the right to hold on to the property is extinguished by termination.

Put in another way, a former employee does not acquire a right of retention as can be used to resist a rei vindication on the basis of a challenge of a completed dismissal from employment and a forlorn hope that such dismissal may be reversed at a future uncertain date.”

It is clear from the above that the respondent has no right to retain the property subject of this application, and that the applicant has the right to vindicate and claim back the property. The defences raised by the respondent are clearly frivolous and simply meant to waste the court’s time. The respondent only sought to flog a dead horse at the expense of the applicant who had to fund this application. The present case is akin to that of Savanhu v Hwange Colliery Company Limited supra, wherein the Supreme Court ordered costs on a high scale. I see no reason for departing from the approach of by the superior court. It is on this basis that I am more inclined to award costs on an Attorney and Client scale.

In the result, the application be and is hereby granted as follows:

1. The respondent is ordered to0 return to the applicant the following property, namely:

1. Motor vehicle, namely, Land Rover Discovery 6, registration number AEX 3353.

2. All the property listed in Annexure “A” attached to this order.

2. Should the respondent fail to return the property as ordered above within 48 hours of service of this order on him, the Sheriff or his lawful agent be and is hereby authorised to remove the property from the custody of the respondent or any person holding such property on the authority of the respondent and surrender the property to the applicant.

3. The respondent shall pay costs of suit on the attorney and client scale.

Dube Manikai & Hwacha, applicant’s legal practitioners

Venturas & Samukange, respondent’s legal practitioners

ANNEXURE “A”