The State v Basil Zvenhamo Masara

The accused was employed by Bereaved Family Services as a Credit Controller and was issued with a Mazda 323 motor vehicle as part of his employment benefits for his exclusive use. On 27 November 2001, he was verbally informed of his dismissal due to unsatisfactory performance. The employer demanded he surrender all company property, including the motor vehicle. The accused challenged the dismissal as unlawful and insisted on written communication, which was never provided. He continued to use the vehicle and drove it to work the next day but was barred from entering the premises. After the employer failed to persuade the accused to return the vehicle, a police complaint was filed. The accused kept the vehicle for 23 days until police impounded it and charged him with contravening section 57(1)(b) of the Road Traffic Act [Chapter 13:11] for driving a motor vehicle without the owner's consent. The magistrate's court convicted him and imposed a fine of $2,500 or 4 months imprisonment in default.

• Whether an employee who continues to use a company vehicle after an unlawful dismissal can be convicted under section 57(1)(b) of the Road Traffic Act
• Whether the accused had a bona fide claim of right to continue using the vehicle
• Whether the requisite mens rea for the offence was present in circumstances where the accused believed he remained lawfully entitled to use the vehicle
• Whether section 57(1)(b) of the Road Traffic Act applies to disputes arising from employment relationships where dismissal procedures were not lawfully followed

The conviction was quashed and the sentence was set aside. The trial magistrate was instructed to ensure that the fine paid by the accused was refunded to him without delay.

Where an employee has been given exclusive use of a motor vehicle as part of employment benefits, and the employer purports to dismiss the employee without following lawful dismissal procedures, the employee cannot be convicted under road traffic legislation for continuing to use the vehicle. A bona fide claim of right arising from an unlawful dismissal negates the mens rea required for conviction under section 57(1)(b) of the Road Traffic Act. The employee maintains their status and entitlements until employment is lawfully terminated. Section 57(1)(b) of the Road Traffic Act is intended to apply to persons who, with criminal intent, drive vehicles without consent to the owner's detriment, not to resolve employment disputes. Where an employee reasonably believes they retain the right to use a company vehicle because their dismissal was unlawful, they lack the requisite criminal intent for conviction. Employment-related disputes concerning company property should be resolved through civil or labour law proceedings, not criminal prosecution.

The court observed that even if the State had charged the accused under section 57(1)(d) of the Act (which deals with employees in lawful charge of vehicles who drive them for unauthorized purposes), it would have faced the same difficulties in securing a conviction. The court noted that when a motor vehicle is given to an employee as a benefit arising from conditions of service, it cannot be withdrawn simply because the employer is unhappy with the employee's standard of work. Such conditions can only be varied in accordance with law. The court commented that the employer's failure to follow proper legal procedures for suspension and dismissal meant that if the employee chose to ignore orders to surrender the vehicle, the employer would only have himself to blame and would not be entitled to pursue criminal prosecution. The court also observed that prosecuting in such circumstances demonstrated a lack of appreciation of legislative intent when enacting the provision.

This case establishes important principles regarding the intersection of criminal law, labour law, and road traffic offences in Zimbabwe (applicable to South African jurisprudence by analogy). It clarifies that criminal provisions relating to unauthorized use of vehicles cannot be employed to circumvent proper labour law procedures. The case emphasizes the importance of lawful dismissal procedures and protects employees from criminal prosecution where employers fail to follow proper termination processes. It reinforces the principle that employment disputes should be resolved through appropriate civil or labour law mechanisms rather than criminal prosecution. The judgment also clarifies the scope and application of road traffic offences relating to unauthorized vehicle use, establishing that these provisions require criminal intent and do not extend to bona fide disputes arising from employment relationships.