Batsirayi Machamire v Rural Electrification Fund

### Preamble
1
HH470-13
HC 10034/12
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BATSIRAYI MACHAMIRE

versus

RURAL ELECTRIFICATION FUND

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 17 September 2013 & 4 December 2013

Ms F. Mafo, for the applicant

Advocate Mahere, for the respondent

MTSHIYA J:	This is an opposed application where the applicant seeks the following relief:

“It is ordered that:-

1. The Respondent is hereby directed to surrender to the Applicant a Sarmak and

Blue 406 Peugeot motor vehicle registration number ABE 7536 engine number

0528426 chassis number N281439762 within a day of service of this order failing

which, the Deputy Sheriff, assisted by the member-in-charge ZRP Harare Central

shall take the said motor vehicle, wherever it may be and deliver it to the

Applicant.

2.   The Respondent shall pay the costs of this application”.

It is common cause that on 20 August 2007, the applicant, an employee of the respondent, entered into an agreement of sale with the respondent.  The agreement was for the purchase, by the applicant, of a vehicle, namely a Sarmak and Blue 406 Peugeot Registration number ABE 7536 (the vehicle.)  The Price for the vehicle was agreed at ZW$1, 795,954,33 (One million seven hundred and ninety five thousand nine hundred and fifty four dollars and thirty three cents).  Transfer of the vehicle into the name of the applicant was to be effected upon the payment of the said purchase price in full.

On 17 August 2007, (ie before the signing of the agreement) the applicant had already issue a cheque in favour of the respondent covering the whole purchase price.  The respondent receipted the said cheque a week later but upon presentation of same to its bank the cheque was not honoured.  The cheque was returned to the respondent endorsed “Refer to Drawer.”  The applicant was advised of same and he re-issued another cheque which the respondent deposited into its Agribank account on 9 October 2007.

On 4 September 2008, with the assistance of the respondent, the applicant transferred the vehicle into his name under the current registration number of the vehicle (ie ABE 7536).  The original registration number of the vehicle before transfer to the applicant was 799-501X.

In 2011 the applicant was suspended on misconduct charges which included failure to pay for the vehicle in contention.  The charge relating to the vehicle was, however, later withdrawn upon the applicant having raised the defence of presctiption.  However, on 27 March 2012, the respondent’s Acting Chief Executive addressed the following letter to the applicant:-

“Subject: SALE OF PEUGEOT 406: REG: No. 799-501X

We refer to the sale of the above vehicle by the Agency to you sometime in August 2007.  We also refer to the considered view that the above vehicle (original REA registration number) was changed into you name when you had not duly paid for it.  The documents at hand do not show any other payment except the one that was “returned to Drawer” by your bank.  In the several engagements referred to above, we urged you in vain to produce any other documents which prove that you paid for the vehicle.

In the circumstances, the Agency is left with no option except to require you to return the vehicle in question, which shall be held in trust until the issue at hand has been resolved.  Could you, therefore, surrender the vehicle to the undersigned by close of business on or before Friday 30th March 2012.

J. MUZILIKAZI

ACTING CHIEF EXECUTIVE.”

In an internal memorandum, that he addressed to the Acting Chief Executive on 12 June 2012, the applicant indicates that he complied with the above directive.  He states that he surrendered the vehicle to the respondent on 5 April 2012.  It is therefore not clear from the record why, on 17 July 2012, the respondent’s Acting Chief Executive again wrote to the applicant in the following terms:

“Subject: RECOVERY OF PEUGEOT 406: REG. NO. 799-501X

We refer to the sale of the above vehicle by the Agency to you sometime in August 2007.  We also refer to the several discussions you have had with the Agency in the past, wherein we asked you to prove your ownership of the above vehicle, which you have since changed ownership to your name and new number plates.

Please note that the Board has deliberated on the above stated interactions between you and the Agency on the matter.  It is the Board’s considered view that you have failed to demonstrate that you paid for the vehicle as required.  Consequently, the Agency is left with no option except to require you to return the vehicle to the Agency.  In other words, you are supposed to return the vehicle registration book and facilitate the return of the vehicle to the Agency’s ownership.

J. MUZILIKAZI

ACTING CHIEF EXECUTIVE”

On 2 August 2012 the applicant’s legal practitioners wrote the following letter to the respondent:

“RE: PEUGEOT 406: REGISTRATION NUMBER. 799-501X

We act on behalf of Mr. B Machamire. Kindly note our interest.

Our instructions are that, at your request our client surrendered the above mentioned motor vehicle on the 5th of April 2012, to “held in trust” pending some alleged investigations.  This was despite the Agency being aware under investigation had been previously adjudicated on by the Disciplinary Authority at a Disciplinary hearing in 2011 and the matter had been finalised.

In view of the fact that our client is the registered legal owner of the said motor vehicle and you have no cause or reason to deny him use and enjoyment of his motor vehicle.  We are instructed to demand as we hereby do, that you immediately release the above mentioned vehicle to our client forthwith.  If within 24hrs of the date you are served with this letter our demand remains unfulfilled, we will have no option but to take legal action without any further reference to you, the cost of which you will be liable on a legal practitioner and client scale.

Be guided accordingly.

Yours faithfully

SCANLEN & HOLDERNESS”

cc: client

The vehicle was not returned to the applicant and on 9 August 2012 the respondent’s legal practitioners responded to the applicant’s demand in the following terms:

“RE: RURAL ELECTRIFICATION AGENCY AND B. MACHAMIRE

We represent the Rural Electrification Agency, and write in response to your letter of the 2nd August 2012 to our client, concerning the above.

Our client’s stance in this matter is that there was an Agreement for our client to sell to yours the motor vehicle in question, in August 2007.  Your client issued a cheque in purported settlement of the purchase price as agreed.  The cheque was dishonoured by his bankers, as his account was underfunded.  Your good selves surely know what this entails at law.

Upon being advised of the dishonour of the cheque, your client attempted an explanation, and your client had been allowed to take delivery.

Meanwhile, in good faith, our client had attended to change of ownership of the motor vehicle, and your client had been allowed to take delivery.

Your client never paid for the motor vehicle, and has known that since 2007 when he took delivery.  That explains his co-operation in handing over the vehicle on demand.  His use and enjoyment of the vehicle over the years is an act of fraud, and our client reserves its rights to claim compensation using AAZ rates.

If your client claims having paid, the onus of proof, surely, is his to discharge in these circumstances, your demand for the release of the motor vehicle will not be obliged.  Instead, if your client is still interested in the purchase of the vehicle, he is invited to express such interest, on receipt of which terms and conditions of such purchase will be spelt out.  If, on other hand, there is no agreement on such terms and conditions, your client will be called upon, at his cost, to cause the re-transfer of the vehicle back to our client.

In the event of your client being minded to go the litigation route, the process can be served at our offices.

We advise accordingly.

Yours faithfully

MUZANGAZA MANDAZA & TOMANA”

cc: Rural Electrification Agency

Attention: Acting Chief Executive

On 31 August 2012 the applicant filed this application seeking the relief indicated at p 1 of this judgment.

The respondent, in opposing the application, raised, as a preliminary issue in its heads of argument, the fact that there is a material dispute of fact in the sense that:

“5.  The applicant has failed to establish that he paid the purchase price stipulated in

the contract between the parties, indeed he did not.

6. It follows that ownership of the vehicle never passed to the applicant.

7. The applicant is therefore not entitled to the action rei vindicatio.”

The respondent went on to submit that:

“10. It is an established principle of our law that a cheque must be taken to be

accepted conditionally on its being honoured when duly presented.  If the cheque

is dishonoured, there has been no payment.  This was articulated by Holmes JA

in Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685

693G:

“In general payment by cheque is prima facie regarded as immediate payment subject to a condition.  The condition is that the cheque be honoured on presentation.  When the cheque is so honoured, the date of payment of the debt is the date of the giving of the cheque.  Conversely, if the cheque is dishonoured, there has been no payment.”

Indeed, depending on the factual position relating to the exchange of cheques, the above are the principles relating to cheque transactions.

As for the replacement cheque, the respondent argued that the deposit slip of 9 October 2009 was mere prima facie proof that payment was made but it is not adequate to discharge applicant’s onus.  It argued that the applicant had to prove that the cheque deposited on 9 October 2007 was honoured.

Relying on a number of authorities, the respondent submitted that, upon filing the application, the applicant knew that there would “necessarily arise fundamental disputes of fact.”  It argued:

“17.  With the benefit of legal representation, the applicant deliberately initiated these

proceedings by way of application when he knew that there would necessarily

arise fundamental disputes of fact.  It is submitted that it is incompetent for the

applicant to adopt such a course.  As held by Ndou J in Magurenje v Maphosa

and Others 2005 (2) ZLR 44 (H):

“Where an applicant must be taken to have realised that there were

serious factual disputes, not capable of resolution on the papers, which

disputes of fact were material and inevitable, it is within the discretion of

the court to dismiss the application rather than to allow the matter to go

to evidence.”

18. It is submitted that the court ought to dismiss the application rather than allow it

to go to evidence because the applicant placed nothing before this honourable

court in its founding affidavit to prove that the purchase price had been paid.  It

did so in spite of its knowledge of the respondent’s contention that the purchase

price had not been paid prior to the institution of these proceedings.  The remarks

of Robinson J in Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H) are

apposite:

“It is necessary for the courts to discourage the too often recurring

practice whereby applicants, who know or should know that real and

substantial disputes of fact will arise or are likely to arise on the papers,

nevertheless resort to application proceedings on the basis that, at worst,

they can count on the court to stand the matter over for trial.  Unless this

practice is curbed, applicants will continue to believe that they have

nothing to lose, and, indeed, everything to gain tactically by embarking

upon application proceedings, notwithstanding their knowledge or belief

at the time of doing so that the respondent will be able to show that

genuine and serious disputes of fact exist on the papers”.

The above would indeed be the correct position to take if the applicant knew he had not paid for the vehicle.

I am, however, unable to uphold the respondent’s point in limine for reasons that shall emerge in my determination of the whole matter.  I shall also in my concluding para (s) address the issue of prescription which the respondent says does not apply in casu.

The applicant, convinced that he fulfilled his obligations under the contract, submitted, in part, as follows:-

“Vindication

11.  The proceedings in casu are for rei vincicatio.  The Principle that an owner

cannot be deprived of his property against his will means that he is entitled to

recover it from any person who retains possession of it without his consent.

12.  The principle applicable to the rei vindication remedy are settled in law;

“The rei vindication is available to an owner for the recovery of his movable

or immovable thing from whomsoever is in possession or detention of the

thing, irrespective of whether the possession or detention is bona fide or

mala fide.  The age old maxim ubi rem invenio ibi vindico applies… An

owner instituting the rei vindication must prove that;

He is the owner of the thing…

The thing is still in existence and clearly identifiable…

The defendant has possession or detention of the thing at the moment the action is instituted.

13. The principle or action of rei vindication was considered in Chetty v Naidoo

Where the court held that;

“one of its incidents is the right of exclusive possession of the res with the necessary corollary that the owner may claim his property wherever found, from whom so ever holding it.  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”

14. This principle has been accepted and applied in this jurisdiction.  It was applied in

Stanbic Finance Zimbabwe Ltd v Chivhungwa held that;

“the applicant, as owner, was in principle entitled to recover the vehicle from

any person who had possession of it…”

I agree that the above properly enunciates the law governing an application for vindication.

In maintaining that he paid the full purchase price, the applicant submitted that the respondent had failed to prove that the applicant’s cheque it deposited on 9 October 2007 was not honoured by his bank.  As with the first cheque, the second cheque, probably bearing the endorsement “Refer to Drawer”, had not been produced or returned to the applicant.  There is evidence that the cheque was deposited.

Without relying on the defence of prescription, my view is that a determination on this matter revolves on what happened to the applicant’s second cheque that was deposited by the respondent on 9 October 2007 together, as shown on the deposit slip, with other “salaries” cheques.”  Apart from merely submitting that the deposit slip constituted prima facie proof of payment, the respondent does not do much to shade light on what happened to that deposit into its own account and indeed what happened to the dishonoured cheque.  All the respondent can say is that the applicant should go further, after 5 years, to prove that his cheque was honoured.

I do not think this is a situation that necessarily calls for a robust approach on the part of the court.  I say so because there is, in my view, and on a balance of probabilities, sufficient evidence that the applicant paid for the vehicle.

It is important to note that as at 4 September 2008, (ie 11 months after the applicant’s first cheque was dishonoured) the respondent was fully aware that it had allowed transfer before full payment.

At para 6 (iv) of its opposing affidavit the respondent avers:

“iv. Meanwhile, acting in good faith, the Respondent had gone ahead to furnish the

Applicant with necessary clearance letters to enable him to attend at the relevant

offices to attend to change of ownership of the motor vehicle from the

Respondent to himself”.

Clearly the respondent had waived its right to insist on payment before transfer.   In that vein, the applicant’s title to the vehicle was properly acquired.   Thus, in my view, the registration book obtained by the applicant on 4 September 2008, is proof of legal ownership.  As from 4 September 2008, the applicant assumed all risks relating to the vehicle.

Accordingly, being satisfied that the vehicle was fully paid for but for the so and that the applicant properly registered the vehicle in his name, I find no basis for the point in limine that was raised by the respondent.  The respondent cannot be allowed to rely on its own “failure to account for the applicant’s money.” Just as it accounted for the first cheque, it should also account for the second cheque it deposit into its own account on 9 October 2007.

In view of the foregoing and on the basis of the law on rei vidnicatio clearly pronounced in the authorities relied on by the applicant and quoted herein at page 7 of this judgment, I find it unjustifiable to deny the applicant the relief he seeks.

Assuming I am wrong in finding that the applicant fulfilled his obligation under the contract, I would still grant the relief on the basis of prescription.

Section 15 of the Prescription Act [Cap 8:11] (the Act) provides as follows:

“15 Periods of prescription of debts

The period of prescription of a debt shall be-

thirty years, in the case of –

a debt secured by mortgage bond;

a judgment debt;

a debt in respect of taxation imposed or levied by or under any enactment;

a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances;

fifteen years, in the case of a debt owed to the debtor unless a longer period applies in respect of the debt concerned in terms of paragraph (a);

six years in the case of-

A debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;

A debt owed to the State;

unless a longer period applies in respect of the debt concerned in terms of paragraph (a) and (b);

except where any enactment provides otherwise, three years, in the case of any other debt.”

Paragraph (d) above is the applicable provision of the law in casu.

The Act also defines ‘debt’ in the following terms:-

“ “debt” without limiting the meaning of the term, includes anything which may be

sued for or claimed by reason of an obligation arising from statute, contract, delict or

otherwise”.

In casu the respondent’s papers clearly show that its allegation is that as from 20 August 2007, now six years ago, the applicant has not paid it a sum of ZW$1 795 954-33 in terms of a contract of sale.  The fact that it has not sued for the money but demanded the return of the vehicle, to “be held in trust until the issue at hand is resolved,” does not, in my view, deny the applicant his claim to the defence of prescription.  The applicant is merely saying- “you cannot hold sue on a debt that you claim became due in August 2007.”

I therefore agree with applicant that the defence of prescription is applicable in this case.  The papers before me show that the respondent accepted that position when it withdrew charges against the applicant relating to the vehicle.  In its submissions before justice L.G. SMITH, (Retired), the respondent made the following submission:

“4.  Ad failure to pay for a motor vehicle purchased from Employer

While Mr. Chikovo who testified on behalf of the Board expressed shock that a

senior executive could have obtained a motor vehicle from the Fund without

paying any consideration, it is conceded that the alleged misconduct has

prescribed and the charge was accordingly dropped”.

I therefore do not understand the sudden change of mind on the part of the respondent.  There is no justification for same.

In view of the foregoing, I make the following order:

“1. The Respondent, be and is hereby ordered to surrender to the Applicant a Sarmak,

Blue Peugeot 406 motor vehicle, registration number ABE 7536 within 24 hours

after service of this order; failing which, the Deputy Sheriff, assisted by the

member-in-charge ZRP Harare Central, shall take the said motor vehicle,

wherever it may be and deliver it to the Applicant; and

2.   The Respondent shall pay the costs of this application”.

Messrs Scanlen & Holderness, applicant’s legal practitioners

Messrs Muzangaza Mandaza & Tomana, respondent’s legal practitioners