Nqobile Bhebhe v First Bank Corporation (FBC Bank) and The General Manager FBC Bank

The applicant was a former employee of the respondent bank. During his employment, the applicant obtained a loan from the respondent for the purchase of a BT50 motor vehicle under a Staff Car Loan Scheme. The employment relationship was terminated following a hearing on a disputed basis. On 24 May 2013, the applicant drove the vehicle to the respondent's basement and left it there. On 6 August 2013, approximately 2 months later, the applicant approached the court on an urgent basis claiming that the respondents had unlawfully and forcefully dispossessed him of the motor vehicle, and that he was suffering irreparable harm by incurring exorbitant costs using taxis to ferry his child to and from school. The applicant sought restoration of possession of the vehicle. The parties had signed a Staff Car Loan Scheme agreement (Clause 13 Annexure F2) and an irrevocable Special Power of Authority (Annexure R3) authorizing the respondent to dispose of the vehicle.

• Whether the application met the requirements for urgency under Zimbabwean law
• Whether the applicant had been unlawfully and wrongfully dispossessed of the motor vehicle (spoliation)
• Whether the applicant consented to the repossession of the vehicle
• Whether the applicant failed to disclose material information to the court

The application was dismissed with costs.

The essential elements of spoliation are wrongful, unlawful and forceful dispossession of property. Where a party voluntarily surrenders possession of property in compliance with contractual obligations and signed agreements, there is no spoliation. Consent to the taking of property negates the requirement of forceful dispossession necessary to establish spoliation. A delay of approximately 2 months between the alleged dispossession and bringing an urgent application is inconsistent with a claim of unlawful dispossession and supports a finding of consent.

The court observed that non-disclosure of material information, such as the existence of signed agreements authorizing the respondent's actions, constitutes a clear indication of a desire to mislead the court. The court noted that an urgent application requires that a party act when the need to act arose, and that delay in bringing the application undermines the claim of urgency. The court commented that the applicant's assertion that the vehicle was recovered from a garage appeared to be an allegation brought as an afterthought, particularly where no evidence of the garage's name or location was provided.

This case illustrates the application of the principles of spoliation in Zimbabwean law, particularly in the employment context involving company vehicles purchased under employee loan schemes. It reinforces the principle that spoliation requires unlawful and forceful dispossession, and that consent to the taking of property negates a spoliation claim. The case also demonstrates the court's intolerance for non-disclosure of material facts and attempts to mislead the court. It serves as a cautionary example of the importance of acting promptly when asserting rights and the consequences of delay in urgent applications.