More often than not, employers find themselves locked into disputes with employees (former), when the contract of employment, which is the premise of the very existence of the employer-employee relationship is terminated. One of these disputes arises in a situation where an employee refuses to surrender the employer’s property given to the employee during the existence of the employer-employee relationship. Many employers have attempted to engage the Police in an attempt to have their property such as vehicles, laptops etc, back. However, the Police usually advise that the matter is purely civil and should be resolved through civil courts.
It has to be noted that there are usually mainly two scenarios where employers are in disputes with employees regarding repossession of property after termination of the relationship. The first scenario is where an employer gives the employee property and the property is then transferred into the name of the employee because there is a provision in the contract of employment which gives the employee the right to own the property. In those cases, if an employee is dismissed, the property cannot be returned since by virtue of the contract, the employee has the right to own the property. The second scenario is where the employer gives the employee its property and the property is not transferred to the employee or it is agreed that the property shall remain the employer’s property until some conditions have been met. In the second scenario, the property remains the employer’s property and the employee cannot claim ownership of the same.
Situations where an employee refuses to surrender the property back to the employer usually arise where, upon termination, the employee is owed arrear salaries, leave days, back pay, retrenchment package or any other benefits. Most employees claim that they are entitled to withhold the property as a lien and they have no obligation to surrender same until they have been paid their dues. This is illegal.
To illustrate, let us have a scenario where an employee is allocated a motor vehicle during the tenure of their employment. Upon termination be it by dismissal for misconduct, retrenchment, termination on notice from employment etc, the employee retains possession of the company vehicle. Upon demand to return the vehicle by the employer, the employee claims a lien over the vehicle. Sometimes the employee may be challenging their dismissal and they will be claiming that they do not have an obligation to return the property, pending the finalization of the matters at Labour Court or any Labour Tribunal.
The law is quite clear regarding such conduct. Where the above stated scenarios arise, the employer can approach the High Court and make an application called “Rei Vindicatio”. For the purpose of this piece, court cases or judgments will be referred to and dealt with in detail. Some of the judgments will be mentioned just in passing. The purpose of making reference to court decisions from different courts is to demonstrate how our courts have interpreted the law regarding employees who refuse to surrender employers’ property upon termination of employment.
In the case of William Bain & Company Holdings versus Braveman Nyakwende HH 280/17, the High Court of Zimbabwe sitting at Harare, stated that employers should be protected against employees who take the law into their own hands. Similar sentiments were also echoed by Mtshiya J in FBCBank Limited v Energy Deshe HH 285/11 when he stated that:
“… employers deserve the protection of the law from employees who….take the law into their own hands as demonstrated by the respondent in casu.”
Taking the law “into their own hands”, refers to a situation where an employee refuses to hand over employer’s property simply because they are or allege that they owed. At law, an employee who is dismissed cannot seek to use pending proceedings as the basis for retaining employer’s property.
The legal principle under rei vindicatio is that the true owner of a thing is entitled to recover it from any person who has possession of it without his or her consent. So, for an application for rei vindicatio to succeed, there are some essential elements that must be proven by the employer (applicant). These elements are that it must be established that the employer or applicant is the owner of the property concerned and that possession of the property is with the employee or respondent and that such possession is without the employer’s consent.
According to Silberberg and Schoeman, The Law of Property, 2nd edition, Butterworth Durban at page 286, the basic principle under the actio rei vindicatio is that
“An owner cannot, as a general rule, be deprived of his property against his will; nemo plus iuris transfer e potest quam ipse habet. Therefore, neither a thief nor any other person who is not the owner can transfer the right of ownership to another person, irrespective of whether the person who acquires the thing from a thief or hirer acts in good or in bad faith and gives value for it or whether the transferor or himself was a bona fide possessor or genuinely but mistakenly believed that he is authorized by the owner to dispose of it.”
In the case of William Bain & Company Holdings (Pvt) Ltd versus Braveman Nyakwende HH 280/17, the parties had an employer employee relationship. During the course of the relationship, the employee was entitled to the use of a motor vehicle. The motor vehicle was owned by the employer. The parties commenced a procedure for retrenchment and employer considered selling the vehicle to the employee. For some reason, the employment relationship ended. The employee did not return the motor vehicle to the employer. The employer approached the High Court by way of an application for rei vindication. The employee argued that he had no obligation to return the vehicle and claimed he had a right to hold on to the motor vehicle until the employer completed the retrenchment exercise. The High court ruled in favour of the employer and ordered that the employee return the company vehicle. See also the case of Mashave vs Standard Bank of South Africa Limited 1998 (1) ZLR 436 (S).
In the case of Jolly vs Shannon & Another 1998 (1) ZLR 78 (HC), Malaba J as he then was, had this to say at page 88;
“The principle on which the action rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent. The Plaintiff in such a case must allege and proof that he is the owner of clearly identifiable movable or immovable asset and that the Defendant was in possession of it at the commencement of the action. The onus is on the Defendant to prove a right of retention: Chetty v Naidoo 1974 (3)13 (A) at 20A-C; Makumborenga v Marini S-130-95 p 2. It follows that the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings”.
In Chetty v Naidoo mentioned above, at page 20, Jansen JA had this to say;
“……the burden of proof must be governed, primarily by the legal concept of ownership. In other words proof of ownership involves proof of the means by which ownership was acquired by the Claimant”.
In the case of Joram Nyahora vs CFI Holdings Private Limited SC 81/14, the question which the court was called upon to determine was whether or not an employee whose contract of employment had been terminated and who had appealed to the Labour Court against the termination, was entitled, pending the resolution of the appeal, to retain a motor vehicle allocated to him for the performance of his duties during the course of his employment. The Supreme Court also dealt with the jurisdiction of the High Court in these circumstances to grant relief to the employer under the rei vindicatio.
Regarding jurisdiction, the Supreme Court held that the High Court had jurisdiction to deal with the matter since it was based on the common law remedy of rei vindicatio. Such applications fall squarely within the jurisdiction of the High Court. Regarding the legality of retaining possession of the car, the Supreme Court dismissed the employee’s claims and ordered the employee to surrender back the vehicle.
In conclusion, an employee cannot refuse to surrender employer’s property upon termination of contract of employment for whatever reason. It must be noted that there are some exceptions to this common law remedy of rei vindicatio. These exceptions include where the parties have agreed that the employee has an option to purchase the property. Such an option must be provided to the employee and if an employee fails to purchase the property the employer is entitled to their property and an employee cannot refuse with same.