Hwange Colliery Company v Tendai Savanhu

### Preamble
1
HH395-13
HC 417/12
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HWANGE COLLIERY COMPANY

versus

TENDAI SAVANHU

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 20 June 2013.

Civil Trial

Advocate L. Uriri, for the plaintiff

S. Hashiti, with C. Mavondo, for the respondent

DUBE J:This is an action for the vindication of the plaintiff’s vehicle.

The salient features of this action may be summarised as follows.The plaintiff is the registered owner of a Toyota Land Cruiser registration no. ACF 1290. The defendant was appointed a non executive chairman of the plaintiff’s board of directors since 2006. He was allocated the above referenced vehicle for his use in July 2011 a month before he was removed from plaintiff’s board. Upon his removal as chairperson, the defendant did not return the motor vehicle and has refused to return the vehicle to the plaintiff.

The plaintiff called its company secretary, Mr Tembelani Kohle Ncube as its only witness. His evidence issummarised as follows. The plaintiff is the owner of the Toyota Land Cruiser in issue. The defendant has possession of the vehicle which was allocated to him as non-executive chairperson of the plaintiff’s board of directors.  He was allocated the vehicle to use for both business and private purposes during his tenure of office. The defendant has been removed as the chairperson of the plaintiff and he is not entitled to possess the vehicle. He is not aware of any policy or resolution which entitles former board chairpersons and members to retain vehicles issued to them.The chairperson is issued with a vehicle he uses in terms of a Board resolution. The motor vehicle policy available covers executive, middle managers and employees other than directors who are entitled to motor vehicles in terms of their employment contracts.

The defendant was previously issued two Mercedes Benz vehicles and a Toyota Prado and these were returned to the pool when he was allocated a new car. The defendant returned these vehicles because he had a replacement vehicle. The defendant was not entitled to retain the vehicle when he ceased to be a board member or non-executive chairperson. A board meeting of 11 December 2012 resolved that the incumbent chairperson purchase his vehicle and it is specific to that incumbent chairperson. When the defendant was in office, there was no such policy and the company would retain the vehicle. The witness was not aware of any non-executive director before the defendant who retained his official vehicle.

The defendant testified as follows. He was the non-executive chairperson of the plaintiff for the past 6 years. He started using the vehicle in issue in 2011.The vehicle belongs to the plaintiff and he possesses it. He is entitled to the vehicle because his predecessors were allowed to purchase their vehicles after leaving the company. His predecessor Mr Kadenga was allowed to purchase his vehicle after leaving the company. Mr Kudenga was offered his vehicle but he turned down the offer because he was not happy with its state. The practice is to allow chairpersons to exercise the right to purchase their vehicles. He expected that he would be offered to purchase the vehicle. He was treated unfairly as he was not offered the vehicle. He served the company well. He is prepared to pay for the vehicle.The current position as from December 2012is that a non executive chairperson can purchase his vehicle at 20% of book value. The company has decided to come up with a resolution to cover or protect a certain individual so that he can benefit by purchasing his vehicle when he leaves the company. The witness contended that although there was no resolution allowing chairpersons to purchase their official vehicles, there was an understanding and a practice in place that allowed purchase of vehicles by non executive chairpersons. The witness conceded that his letter of appointment does not mention the right of retention of the vehicle on termination of the appointment. He expected that the company would offer him the vehicle as shown by precedent. He is holding onto the vehicle for justice to prevail and wants the parties to negotiate and if he is given a fair price he will pay. Without prejudice negotiations have failed.

The evidence of Mr Fortune Chasi to the effect thatprevious non- executive chairpersons were offered to purchase their issues and that same may have taken the offers was admitted by consent of both parties.

The issue that will dispose of this dispute is whether the defendant is entitled to possess the plaintiff’s car by reason of the fact that same ought to have been offered to him for purchase because former non –executive directors were offered their issues.

The rei vindicatio is a common law remedy which is based on the principle that an owner of property cannot be deprived of his property without his consent and is entitled to recover it from any person who possesses it without his consent. In ChettyvNaidoo1974 (3) SA 13the court recognised that an owner has exclusive possession of his property and that no other person may withhold that right from the owner unless he is vested with an enforceable right against the owner. Similar sentiments were expressed by MALABA J as he then was, in the case of Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC)where he made the following remarks,

“the owner may claim his property wherever found, from who-so ever is holding it. It is inherent in the nature of ownership that possession of the rei 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 (e.g. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res, the onus being on the defendant to allege and establish any right to continue to hold against the owner”.

See also Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441(A)

A litigant seeking to rely on the plea of rei vindicatio must prove the following, that he is the owner of the property in question, see Jolly v Shannon and Anor 1998 (1) ZLR 78 (HC).Once ownership is proved, its continuation is presumed, see Stanbic Finance Zimbabwe case (supra) He must also prove that at the time of commencement of the action, the defendant was in possession of the property – see Masuli v Jera HH 67-07.He is enjoined to prove that defendant’s possession was without the plaintiff’s consent or concurrence. The law does not permit that a property  owner be deprived of his property against his will and is entitled to recover it from any person who possesses it against his will see Stanbic Finance Zimbabwe v Chivhunga (supra). Once ownership has been proved, the onus is on the defendant to prove a right of retention. See Chetty v Naidoo (supra), Claudius Chenga v Virginia Chikadaya and Ors SC 7\13. InIntroduction To Law, C.G Van Der Merwe and  J.E Du Plessis summarises the defences available in a vindicatory action as follows.

1.	The defendant had acquired the property by prescription

2.	The third party is the owner

3.	The property was alienated or destroyed or

4.	The defendant has a superior contractual right to possess.

In Oakland Nominees v Gelria Mining & Investment Co. Limited (supra) HOLMES JA said the following on the requirement placed on the defendant to have an enforceable right against the owner,

“Our law jealously protects the right of ownership and the correlative right of the

owner in regard to his property, unless, of course the possessor has some enforceable

right against the owner”.

It is common cause that the plaintiff is the owner of the vehicle in issue and the defendant has possession of it. The plaintiff avers thatthe defendantpossesses the vehicle without its consent.The defendant conceded that he is in possession of the vehicle without the plaintiff’s consent or concurrence. The defendant did not pursue his stance that he is entitled to the vehicle as a terminal benefit. The thrust of hisdefence was that he is entitled to possess and purchase the vehicle becauseformer chairpersons were allowed to purchase their issues and he expected that he would be offered to purchase his vehicle in accordance with that practice. He alluded to a resolution passed in December 2012 which enables the incumbent chairperson to purchase his issue.The plaintiff conceded that former chairpersons may have been offered their issues.

The plaintiff’s motor car policy covers employees, other than directors.It does not cover non-executive directors whose benefits are covered by resolutions of the board. There is no vehicle policy or board resolution entitling the defendant to purchase the vehicle at the end of his term. There is no contractual right to possess the vehicle. There is also no proof of an offer to purchase the vehicle either express or implied.  I am not in agreement with the defendant’s contention in his closing submissions that he was offered directorship on the understanding that the plaintiff would offer him his last car provided that he had to pay for it.   There is simply no evidence to support that assertion. In the absence of a car policy board resolution entitling him to purchase the vehicle, oran offer to purchase the vehicle, the defendant does not have a claim of right over the vehicle. The defendant is trying to arm twist the plaintiff into selling the vehicle to him on the premise that other directors have previously been offered to buy their own issues.This state of affairs does not entitle him to purchase the vehicle. The fact that the plaintiff offered previous directors their vehicles after the termination of their contracts doesnot bind the plaintiff to sell this vehicle to the defendant. The plaintiff has no obligation to sell the vehicle to him. The defendant is holding the vehicle against  the wishes of the plaintiff. It is entirely in the discretion of the plaintiff whether to offer the vehicle to him.The court woulderr were it to compel the plaintiff to sellthe vehicle to the defendantin the absence of an offer to sell the car or proof of some other entitlement. Similar sentiments were expressed  by NDOU J in Dhege v Dell Medical Centre HB50\04, where he remarked as follows,

“In the circumstances it cannot be argued that the respondent,..…..was obliged to sell the     company car to applicant. The court cannot compel a party to exercise its discretion in a particular fashion. The court can compel a party to do what is mandatory in terms of an existing agreement. The right to purchase the company car could only be exercised after an offer had been made to the employee and not before. The option to offer for sale, cars used by employees was a privilege and not a right”

The defendant’s right to use the vehicle ceased when he left the plaintiff’s company. The fact that other directors were allowed to purchase their issues does not confer rights on him to purchase the vehicle. I agree with Advocate Uriri’s contention that the hope and expectation of an offer does not justify possession of the vehicle.The defendant’s expectation that the vehicle would be sold to him is not legitimate.His hold onto the vehicle is unlawful. The defendant has failed to show that he hascontractual or enforceable rights against the plaintiff. He has no legal justification to continue holding onto the plaintiff’s vehicle.

The applicant is entitled to the order sought.

In the result it is ordered as follows.

The defendant is ordered to return Toyota Land Cruiser registration number ACF 1290 within 7 days of the service of this order on him.

Should the defendant fail to comply with this order, the Deputy Sheriff be authorised

to seize from the defendant a Toyota Land Cruiser registration number ACF 1290.

3.   Costs of suit.

Mawere & Sibanda, plaintiff’s legal practitioners

Mhishi Legal Practice, defendant legal practitioners