Zimbabwe Educational Scientific Social AND Cultural Workers Union V Claud Kaharo

### Preamble
HH 222-2011
HC 3550/10
ZIMBABWE EDUCATIONAL SCIENTIFIC
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ZIMBABWE EDUCATIONAL SCIENTIFIC

SOCIAL AND CULTURAL WORKERS UNION

versus

CLAUD KAHARO

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 5 & 12 October 2011

Opposed Application

A. Marara, for the applicant

Respondent in person

BERE J:  The application before me is a rei vindication action brought by the applicant against the respondent.  The applicant desires an order from this court ordering the respondent to return two motor vehicles to it, viz a Nissan Sunny FB 14 1996 model bearing registration No. 829 – 998 W and a Nissan Sunny HB 12, bearing registration Number 505 – 933 B.

Two notable positions or defences come out of the respondent’s opposing affidavit and poorly drafted heads of argument.  The respondent has argued that this court does not have the jurisdiction to meddle itself in labour-related disputes as he perceives the dispute between him and the applicant as a labour related one which has been placed before my sister judge CHATUKUTA J.  The respondent has also attempted to raise the defence of justification in holding onto the two motor vehicles.

Counsel for the applicant has articulately laid and explored the legal position as regards the two defences raised by the respondent.

A proper reading of s 89 (1) (a) of the Labour Act clearly defines the situations which fall within the Labour Act for determination and which by implication have ousted the jurisdiction of this Court.  A rei vindicatio action which is rooted in common law is certainly not one of those cases where the Labour Court enjoys jurisdiction.

I must point out that unless its jurisdiction has been specifically and expressly ousted by the Legislature, this court has a concommittant duty to jealously guard against the erosion of its inherent jurisdiction.  I am firmly convinced that this court enjoys its power to hear an action for vindication because, as I said, this power falls outside the jurisdiction of the Labour Court.

The respondent has attempted to justify his holding onto the vehicle bearing registration number 505-933 B on the basis of a sale agreement between him and the applicant.

This argument is far from convincing.  The applicant has denied the existence of such an agreement and this position has found confirmation from a very unlikely source.  The respondent’s annexture ‘A’ itself confirms that the alleged agreement was never concluded after the applicant’s president refused to sign the agreement in issue as he believed the alleged sale had not been done above board. In fact, the papers show that the alleged driver of this shoddy transaction Mangoma was taken to task on this issue.

It is clear to me that the respondent must not be believed when he alleges he purchased this motor vehicle.  It is precisely because of this that he has not been able to annex to his application the agreement of sale.  It is non-existent and he cannot therefore make an attempt to derive refugee from a verbal argument which finds no support from anyone else other than his own word.  In any event the respondent alleges in his papers he has not paid for the vehicle in issue.  I am more than satisfied the respondent has not been candid in claiming to have purchased this vehicle.

The applicant has stated in its founding papers that it is the legitimate owner of both vehicles and this position has not been controverted in any meaningful manner by the respondent.  Annexure ‘A’ to the respondent’s “opposing heads of argument” lends credence to the applicant’s position as regards the second vehicle bearing registration no. 829 – 998W.  The annexture is confirmation that the vehicle belongs to the applicant.

The applicant’s position is overwhelmingly supported by non-other than the respondent through his filed papers.

Annexure ‘A’ to the applicant’s founding papers show in very clear terms that the respondent was suspended from employment without pay and benefits.  The respondent has attempted in his opposing papers to allege that the suspension is a nullity.  Declaring the suspension that now haunts him a nullity is not a question of his fanciful imagination but if he believes he stands on firm ground in so alleging, he must take steps to have that pronouncement made by a competent court.  He appears not to have done so and in my view the suspension remains in full force and effect.

What is unmistable from both the applicant and the respondent’s papers is that the respondent seems to be deriving joy in meddling in the politics of the organisation instead of executing his simple mandate within the organisation.  In doing so he has made himself vulnerable.  The respondent is at liberty to join a splinter organisation but he must first fully account to his principle for the two motor vehicles in question.

The respondent clearly had no basis to refuse to release the two motor vehicles and if anything, he has portrayed himself as a stubborn and misguided litigant and it is for this reason that I intent to pronounce an appropriate order for costs.

I accordingly order as follows:

That the respondent be and is hereby ordered within the next 48 hours of this order to return the following motor vehicles to the applicant.

Nissan Sunny FB 14 1996 Model, bearing registration number 829-998W

Nissan Sunny HB 12, bearing registration number 505-933B

That the respondent be and is hereby ordered to pay costs of suit on Attorney-client scale.

Matsikidze & Mucheche – applicant’s legal practitioners

Respondent in person