Gombe Holdings (Private) Limited and Bitcoin T/A Kuchi Construction (Private) Limited v Josephy Chitombo

Respondent was employed by first Applicant as a human resources manager from 1 December 2019 until his termination on 9 September 2020. Second Applicant, a subsidiary of first Applicant, purchased a Toyota Avensis motor vehicle (registration number AFF 7889) on 18 December 2019, which was delivered to Respondent. Although Respondent's employment contract did not entitle him to use of a company vehicle, he was using the motor vehicle. After his employment was terminated, Respondent refused to surrender the motor vehicle, claiming it was purchased for him as an employment benefit and that his termination was unlawful. He contended he was entitled to retain the vehicle pending resolution of his challenge to the termination. Applicants disputed that the motor vehicle was an employment benefit, noting that Respondent's contract contained no motor vehicle benefit or allowance. The purchase price was paid by second Applicant.

• Whether the Applicants satisfied the requirements for an actio rei vindicatio claim
• Whether first Applicant had locus standi to bring the application
• Whether Applicants established ownership of the motor vehicle
• Whether a former employee has the right to retain employer's property pending challenge to termination of employment
• Whether the agreement of sale being in Respondent's name constituted proof of ownership
• Whether costs on a legal practitioner and client scale were justified

1. Respondent ordered to deliver the Toyota Avensis motor vehicle registration number AFF 7889 to 2nd Applicant within 24 hours of service of the order. 2. In the event of non-compliance, the Sheriff is authorized to recover the motor vehicle from wherever and whomsoever it be found and deliver it to 2nd Applicant, with authority to enlist services of Zimbabwe Republic Police or other service providers. 3. In the event of non-compliance with paragraph 1, Respondent ordered to fully disclose the location of the motor vehicle, failing which he shall be committed to prison until compliance. 4. Respondent to pay costs of suit (ordinary costs).

The binding principles established are: (1) An actio rei vindicatio is an action aimed at protecting ownership based on the principle that an owner shall not be deprived of property without consent, and the right of an owner to protect property is so exclusive that the owner is entitled to recover it wherever found without alleging anything further than ownership and defendant's possession. (2) A former employee who has lost employment has no right to hold onto the property of the former employer allocated by virtue of employment or as a condition of employment merely on grounds of challenging the termination of the employment contract, as the right to hold the property is extinguished by the termination. (3) A former employee does not acquire a right of retention that can be used to resist a rei vindicatio on the basis of a challenge of a completed dismissal from employment and a hope that such dismissal may be reversed at a future uncertain date. (4) The three requirements for a successful rei vindicatio claim are: (i) proof of ownership, (ii) proof that the property was in possession of the respondent at commencement of the action, and (iii) proof that the property is still in existence and clearly identifiable.

The court made observations regarding the improper manner of raising points in limine, noting that while a point of law that goes to the root of the matter may be raised at any time in proceedings, it must be raised properly with adequate notice to the other party. Notification a few minutes before commencement of proceedings, where the issue did not arise after pleadings were filed and no explanation was tendered for not raising it earlier, was found to be improper. The court also observed that it is mala fide for a respondent to challenge the locus standi of an applicant when the respondent's own defence is based on a contractual relationship with that applicant. Regarding costs, the court noted that no justification was provided for an award of costs on a legal practitioner and client scale, and that such an award requires justification beyond mere allegations of vindictiveness, with ordinary costs being appropriate to meet the justice of the case.

This case reinforces important principles in Zimbabwean property and labour law regarding the actio rei vindicatio and the rights of former employees. It confirms that a former employee cannot lawfully retain an employer's property after termination of employment merely on the basis of challenging the dismissal, as the right to possession is extinguished upon termination. The case clarifies that the right of retention does not arise from a challenge to a completed dismissal based on a hope that the dismissal may be reversed at a future date. It also demonstrates the court's approach to locus standi challenges raised improperly during proceedings, requiring proper notice and finding lack of merit where the challenging party's own defence relies on the relationship with the party whose standing is challenged. The case reinforces the exclusive and absolute nature of ownership rights under the actio rei vindicatio in Zimbabwean law.