Zimbabwe Posts (Pvt) LTD V Broadwell Chigere

### Preamble
1
HH 216-13
HC 4654/11
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ZIMBABWE POSTS (PVT) LTD

versus

BROADWELL CHIGERE

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 9 July 2013 and 12 July 2013

C. Kwaramba, for the applicant

Mr B. Chigere, (respondent in person)

MTSHIYA J:   This is an application for execution pending appeal.

On 9 July 2013 I granted the following order:-

“1.	Execution of the judgment in case number HC 2583/10 pending appeal be and

is hereby granted.

2.	Respondent shall pay the costs of suit on a Legal Practitioner and client scale”.

I promised to give my reasons later. These are they.

On 22 February 2011 this court ordered the eviction of the respondent from the

applicant’s property, namely 15 Baines Road Victoria Falls. Having appealed against the eviction order of this court, the respondent remains in occupation of the property and hence this application by the applicant for execution pending appeal.

The background facts of this case are common cause and are well detailed in two judgments of the Labour Court and one judgment of this court. I therefore do not need to repeat them herein.

The respondent is in occupation of the property by virtue of having been given same for accommodation purposes when he was still employed by the applicant. Notwithstanding the three judgments referred to above, the respondent still maintains that he is still employed by the applicant and hence his refusal to leave the property. In its judgment of 22 February 2011, this court noted that on 11 June 2008 the Labour Court confirmed its ruling of 10 November 2004 where it ordered as follows:-

“(a)	The employer is to pay full salary as increased from time to time inclusive of all benefits that the appellant was entitled to from the date of suspension to the 22 May 2001. These amounts shall be paid together with interest at the prescribed rate calculated on each amount as it fell due to the date of payment. The employer shall deduct what it has already paid.

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(b)	The employer shall pay 6 months salary at today’s rates as damages for lots of employment together with interest calculated at the prescribed rate from today’s date to the date of payment in full. The employer shall deduct what it has already paid.

(c)	Terminal benefits and leave days due shall again be calculated at today’s rates”.

Clearly in terms of the above order the respondent ceased to be an employee of the

applicant from 22 May 2001 and hence the order for payment of damages for loss of employment referred to in para (b) of the above order. The respondent only remained a salaried employee of the applicant up to 22 May 2001.

The above order therefore indicates how the employment relationship between the

respondent and the applicant was terminated. That decision and the later decision of that court made on 11 June 2008 were never appealed against. Furthermore on 3 June 2006 the respondent acknowledged payment which was made in terms of the order of the Labour Court. In my view, that was the end of the matter. The respondent resided in the applicant’s property by virtue of employment and once the employment was terminated the right to remain in the property disappeared.

The respondent could only remain in the property for a period of one month after termination of employment as provided for in s 12(6) of the Labour Act (Cap 28:01]. The section provides as follows:-

“(6)	Whenever an employee has been provided with accommodation directly or indirectly by his employer, the employee shall not be required to vacate the accommodation before the expiry of a period of one month after the period of notice specified in terms of subs (4) or (5)”.

The respondent has remained in occupation of the property, since 10 November 2001 when termination of his employment was confirmed.

The applicant has summarised the factors to be considered in an application of this nature and two of them being:-

“5.3.	The prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time or harass the other party and;

5.4.	Where there is potential of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or inconvenience, as the case may be”.

Given the circumstances of this case, I regard the above two factors to be the most relevant in determining whether or not to grant the relief sought by the applicant.

This matter was concluded as far back as 10 November 2004 and the fact that the respondent accepted payment in terms of the Labour Court Order of that date, it cannot be denied that the applicant has indeed suffered prejudice. It has actually been denied the use of its property from the time the respondent ceased to be its employee. Furthermore, given the rulings of both this Court and the Labour Court, I am unable to pronounce that there are prospects of success in the respondent’s appeal that now lies before the Supreme Court.

Accordingly, for the reasons given above, I found merit in the applicant’s request to execute this court’s order of 22 February 2011 pending the respondent’s appeal in the Supreme Court. I therefore granted the relief sought.

Mbidzo Muchadehama & Makoni, applicant’s legal practitioners

Mr Broadwell Chigere, respondent

104 Central

Harare