Davies Mazambara and Samuel Alufaneti v Kadoma Textiles (Pvt) Ltd

### Preamble
1
HH 195-18
CIV ‘A’ 227/16
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DAVIES MAZAMBARA

and

SAMUEL ALUFANETI

versus

KADOMA TEXTILES (PVT) LTD

HIGH COURT OF ZIMBABWE

MWAYERA, MATANDA-MOYO & MUZENDA JJJ

HARARE, 15 March 2018 & 11 April 2018

Civil Appeal

J Gama, for the 1st & 2nd appellants

Chisoko, for the respondent

MWAYERA J: This is an appeal against a summary judgment granted by a magistrate sitting at Kadoma on 27 May 2016.

The grounds of appeal are as follows:

the court erred by finding that the appellants had no bona fide and valid defence to the action.

the court erred by finding that it had jurisdiction to determine the matter before it.

the court erred by finding that the plaintiffs summons and particulars of claim disclosed a valid cause of action.

the court erred by awarding respondent costs on the higher scale in the absence of a valid basis for such an order.

The appellants sought a relief to the effect that the appeal succeeds with costs and the court a quo order be set aside and replaced with the following:

“the applicant’s application (for summary judgment) be and is hereby dismissed with costs.”

The respondent/plaintiff had issued summons against the appellants/defendant at Kadoma Magistrate’s court seeking the following relief:

A declaration that the appellants are no longer entitled to occupy the property.

An order for eviction of the appellants from 24 Kadoma Textiles Estate House, Martin Spur, Kadoma.

Holding over damages at the rate of US$13 per day from 1 December 2016 to the date of ejectment.

Costs of suit on a legal practitioner-client scale.

The appellant/defendants then, entered appearance to defend. The respondent made an application for summary judgment. The trial court granted the application for summary judgment in favour of the respondent as prayed in the summons. The appellants then appealed against the granting of the summary judgment on the grounds outlined above.

On the date of hearing the appellant’s legal practitioner Mr K Gama indicated to the court that the aspect of jurisdiction by the court a quo as well as eviction were now academic because the appellants have since been evicted from the premises after the respondent had applied for leave to execute pending appeal. When asked by the court about the appellants’ grounds of appeal, he stated that he was going to abandon ground (b) but would sustain ground (a). In other words the appellants admitted that the magistrate had jurisdiction to determine the matter. That concession was proper in our view. The magistrate’s court had jurisdiction to deal with the matter as what was before it was not a labour dispute but eviction. The court a quo has jurisdiction to determine eviction as only value of occupation matters. [See s 11 (1) (b) (iii) of the Magistrates Court Act [Chapter 7:10]. The appellant’s contract of employment had expired and the respondents were claiming rei vindicatio and indeed the appellants had no valid defence to respondent’s claim. The particulars of claim filed by the respondent disclosed a valid cause of action which is the termination of employment. Once the appellants were no longer employees of the respondent there was no basis for the appellants to remain staying in respondent’s property. See Zimbabwe Broadcasting Holdings v Gomo 2010 (1) ZLR 8 where the court held as follows

“An appeal to the Labour Court did not give the employee the right to retain the property she was in possession of in terms of a contract of employment that had been terminated unless she had a recognisable defence to the claim by the applicant. Our law as it stands is to the effect that once an employee has been suspended or dismissed from employment any benefits extended to such employee from that relationship cease.”

See also Chisipite Schools Trust (Pvt) Ltd v Clark 1999 (2) ZLR 324, Surface Investment (Pvt) Ltd v Maurice Chinyoni HH 295-14 and Arundel School Trust v Sally Pettigew HH 242-14.

MATHONSI J, in Montclair Hotel and Casino v Farai Mukuhwa HH 501-15 echoes the same sentiments that once the contract of employment is terminated then the employee has no basis to cling on to the employer’s property. I subscribe to the same sentiments when he remarked.

“Just from where do former employees think they derive the authority to hold on to property belonging to a former employer given to them for use during the subsistence of the contract of employment in the discharge of their duties as employees, after they have lost employment?” This matter is one of several of its nature which are now finding their way to the court with alarming frequency of late where a dismissed employee would simply not surrender the employers property but would cling to it as if life itself depend on it.”

It is apparent that the appellants had no defence to the claim for eviction given that the contract of employment had been terminated. The court a quo properly exercised its mind and granted summary judgment. The appellant had no genuine defence and appeared to have defended the matter simply to vex the respondent and delay the day of reckoning. One cannot find fault in the court a quo’s finding that the appellants had no valid defence and thus the ground of appeal (a) cannot be sustained. Equally ground (c) crumbles in the face of the cause of action. The respondent’s action was that of rei vindicatio whose requirements are settled. The respondents were seeking eviction of appellants who were in possession of their property without their consent.

In Savanhu v Hwange Colliery Company SC 473 the Supreme Court in outlining requirements of re vindicatio stated that “The owner, in instituting a rei vindicatio need therefore do no more than allege and prove that he is the owner and that the defendant is holding the rei vindicatio. The onus being on the defendant to allege and establish any right to continue to hold against the owner--”

In Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) MALABA J (as he then was) emphasised the same principle of rei vindicatio when he remarked as follows

“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 prove that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action. Once ownership has been proved its continuation is presumed. The onus is on the defendant to prove a right of retention.”

It is clear from the record of proceedings in the court a quo that ownership of the property by the respondents is not in dispute. The appellants’ contract of employment having been terminated a clear cause of action rei vindicatio could not possibly be meaningfully defended. The grounds of appeal (a) and (c) were equally baseless given the concession made by appellants. They also ought to fail.

Mr K Gama during the submission tried to attack the trial court on the issue of holding over damages. He argued that the trial magistrate erred in granting judgment in a matter involving damages, in contravention of order 15 of the Magistrate’s Court (civil) Rules, SI 280 of 1980. This is a new ground of appeal, it does not appear on the listed grounds of appeal. In any case the respondent’s summons is clearly indicating that the respondent was claiming holding over damages sounding in money at the rate of $13 per day. In our view there was no misdirection by the court a quo. On the question of costs contained in ground (d) of grounds of appeal, the appellants argued that the court a quo erred in awarding respondents costs on a legal practitioner-client scale. The legal practitioner appearing for the appellants admitted during the hearing of this appeal that the issue of costs is in the realm of the trial court’s discretion and cannot be lightly interfered with. Given the history of the matter our view is that the court a quo did not err in awarding costs at a punitive scale. It is settled that costs on a higher scale are generally awarded in circumstances were the following aspects are detected:

Dishonest conduct either in the transaction giving rise to the proceeding or in the proceedings

Vexatious proceedings

Frivolous proceedings

Malicious conduct

See Michael Matembe v Clever Matambo HH 13-03. The court a quo was within its right to exercise its discretion on costs. As clearly spelt out by the court in Alison Sunga and 32 Others v Deron Mutengwa HC 64/07

“It is trite that the award of costs is entirely in the discretion of the court. In exercising this discretion however, the court is guided by a number of settled principles which all support the raison de’entre of the justice delivery system of achieving fairness and justice between the feuding parties. --- in a way the award of costs though hardly sufficient to fully indemnify the successful party is also to penalise the unsuccessful party for being unreasonable and not conceding to a validity raised claim of defence.”

In the present case one cannot argue that the court a quo improperly exercised its

discretion in awarding costs given the frivolous and vexatious defence raised by the appellants to an eviction claim based on rei vindicatio.

This court took Mr K Gama to task on the manner he prepared the heads, using discourteous language about the trial magistrate, calling him by name and alleging personal interest of the trial court in the matter. Words like “subjective” bias is in our view an attack by the legal practitioner and was personal and unjustified. Is it because the learned magistrate ruled against the appellants? The ruling of the magistrate reflects no bias in our view and the attack on him was unjustified. It bordered on contempt. The legal practitioner for the appellants Mr K Gama was informed about this and he apologized in court.

Having said that, all the grounds of appeal by the appellants were baseless and lacked merit and that the appeal was pursued regardless of concessions that it was purely academic, the appeal ought to fail. In the circumstances we feel costs on a higher scale are justified.

Accordingly it is ordered that:

The appeal be and is hereby dismissed with costs on legal practitioners to client scale.

MATANDA-MOYO J agrees …………………….

MUZENDA J agrees ………………………………

Gama & Partners, appellants’ legal practitioners

R Chibaya Law Chambers, respondent’s legal practitioners