Miriam Kwangwa and 77 Others v SMM Holdings (Pvt) Ltd (Under Reconstruction) t/a SMM Properties

### Preamble
1
HMA 58 -20
CIV ‘A’ 38 - 19
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MIRIAM KWANGWA AND 77 OTHERS

versus

SMM HOLDINGS (PVT) LTD (Under Reconstruction) t/a

SMM PROPERTIES

HIGH COURT OF ZIMBABWE

WAMAMBO J AND ZISENGWE J

MASVINGO 23 SEPTEMBER 2020 & 28 OCTOBER, 2020

Civil Appeal

Mr T. Mbwachena, for all the appellants

Mr J. Chipangura, for the respondent

ZISENGWE J:  	This is an appeal against the decision of the Magistrates court sitting at Masvingo ordering the eviction of the appellants from certain residential premises which they currently occupy on account of their employment with the Respondent company.

The brief background of the matter is that the appellants occupy various positions within the rank and file of the respondent. The latter is a company duly incorporated in terms of the Laws of Zimbabwe. It appears that the appellants are on forced leave owing to some labour dispute unconnected to the present matter.

As employees they were allocated and do currently occupy houses situated in the Chemberi Township of this small mining town of Mashava. Significantly, it is common cause that the houses in question have since been sold by the respondent to the Great Zimbabwe University (GZU). In the wake of that sale, the respondent unsuccessfully sought to relocate the appellants to an alternative residential location in a different part of town. These houses are situated in an area called King mine (“the King mine houses”).

Confronted with the resistance by the appellants to vacate the Chemberi houses to make way for their vacant delivery to GZU, the respondent instituted action in the Magistrates court for their eviction from those houses.

The main thrust of the respondent’s cause of action in that suit is captured in paragraphs 4 and 5 of its particulars of claim which read: -

"4. The defendants have been requested to move to residential properties equivalent to where they currently stay and situated at king mine. The said properties belong to the plaintiff, and the defendants are to occupy the said residence under the same terms and conditions as their current ones.

5. Despite demand to vacate and move to the aforesaid houses, the Defendants have refused or ignored to move"

Needless to say, that the action to evict them was resisted by the appellants. In their plea the defendants raised the preliminary point (which point they pursue in this appeal) that having sold the Chemberi houses to GZU, the respondent effectively relinquished any right over the same, implying that it lacks locus standi to institute those proceedings, a prerogative which now vests with GZU.

On the merits the appellants raised two substantive issues; firstly that the King mine houses are decrepit rendering them unsafe and unsuitable for human habitation. Secondly, that they (i.e. appellants) enjoy a right of retention of the properties in question on account of outstanding sums of money owed to them by the respondents.

The matter proceeded to trial in the course of which one witness testified for the Respondent (as plaintiff then), namely Ms Catherine Nyambiya, the Senior Human Resources officer and four witness testified for the appellants, all of them employees of the respondent. In addition an inspection in loco was conducted at the behest of the parties to ascertain the condition (hence habitability) or otherwise of the King mine houses. Further, a report compiled by the Ministry of Health and Childcare in respect of those houses was produced as an exhibit.

At the conclusion of the trial, the court a quo granted the prayer for the eviction of the appellants from the premises that they currently occupy.

The main reason for the decision can be gleaned from the penultimate paragraph of the judgement wherein the following was stated.

"The defendant’s occupation of the plaintiff’s premises is based on the currency of the employment therefore accommodation (premises) which are inhabitable would therefore amount to and constitute a violation of their conditions of service (employment contract) what recourse is open to an employee whose conditions of service/employment construct has been gravely breached? Undoubtedly the labour court. The defendants ought to have exercised diligence and approached the labour court as soon as it became apparent that the houses the plaintiff wanted to relocate them were uninhabitable as per the Ministry of Health findings on or to the plaintiff effect repairs.”

The basis of the Magistrate judgement was therefore that the appellants should have sought redress against for their relocation to the alleged substandard houses in the labour court as this was an entirely labour matter.

Aggrieved by that decision, the appellants appealed to this court. Their grounds of appeal are couched in the following terms;

Grounds of Appeal

The court a quo erred and indeed misdirected itself by failing to respect, protect, promote and fulfil Appellants’ fundamental right as enshrined in Section 73 of the Constitution of Zimbabwe. The court a quo failed dismally to consider that the Appellants have right it habitable shelter and a safe environment to live. The court a quo turned a deliberate blind eye when it failed to give due weight to the report issued by the Ministry of Health and inspection in loco’s findings.

The court a quo erred and misdirected itself by failing to appreciate that right to accommodation is an existing and vested employment benefit available to the appellants. The court a quo to consider that the respondent failed to provide an alternative accommodation for the applicants which is habitable.

The court a quo erred when it failed to give due weight to the Ministry of Health’s report and the inspection in loco which clearly showed that the alternative houses offered to the respondent are not habitable.

In their heads of argument submitted in amplification of the grounds of appeal, the appellants raised what they referred to as “preliminary points”. They impugned the locus standi of the respondents to institute the action for eviction and they challenged the jurisdiction of the Magistrates court to entertain the matter in the first place.

I interpose here to observe that those preliminary points should have more appropriately been specifically captured as substantive grounds of appeal. I say so mindful of the fact that points of law can be raised at any stage; (see for Muchakata v Netherburn mine 1996(1) ZRL 153 (S), Muskwe v Nyajina SC 17-12 and Gold Driven Investments (Pvt) Ltd v Telone (Pvt) Ltd and another SC 9/2013).

All that is being said is that the failure to so capture them as such (something the appellants could have easily done) deprived the Magistrate who presided over the proceedings court a quo of the opportunity to comment on them in terms of Order 31 Rule 2 of the Magistrates Court Civil Rules, 2019. It equally deprived the Respondent of the opportunity to address those points in its heads of argument opposing the appeal.

Be that as it may, the two issues raised are pertinent and merit consideration. The first relates to the complaint that the respondent lacked locus standi to institute the proceedings for their eviction from the houses in question given that those houses have since been sold to GZU. The argument therefore is that it is only the latter which can legitimately sue for the appellants’ eviction.

The second objection was that the dispute being essentially a labour one, the Magistrates court lacked jurisdiction as that is the exclusive preserve of the labour court.

The second point will be addressed first not only because of its potentiality to dispose of the matter but also on account of its importance relative to the first. An interrogation of the argument on locus standi presupposes that the court had jurisdiction in the first place to entertain the matter.

It is interesting to observe that there appears to be some convergence (albeit partial) as between the parties that the dispute, at least as it relates to the appellants’ defence to the claim for eviction is primarily a labour one. It is perhaps necessary to refer to relevant portions of their respective heads of argument to illustrate this observation.

The appellants’ position

In paragraphs 11-16 the appellants contended that the dispute essentially centres on the interpretation of the respondent company’s policy as it relates to the relocation of employees from one place to another. The argument, therefore, was that this is a labour dispute which only falls for adjudication by the labour court. Reliance in this regard was placed on S 89 (6) of the Labour Court Act [Chapter 28:01] which bestows exclusive jurisdiction on the labour court to hear and determine labour matters as court of first instance. On that basis they argued that the decision of the court a quo should be set aside for want of jurisdiction.

The Respondent’s position

In paragraph 2 the respondents addressed the appellants’ second ground of appeal thus:

"2.   Whether the court a quo failed to appreciate that the right to accommodation is an existing and vested employment benefit available to the appellants and whether it failed to consider that the Respondent failed to provide an alternative accommodation for the appellants which is habitable

This ground as well is a misplaced argument because the issue of the right to accommodation being an existing and vested employment benefit clearly shows that this issue is purely labour matter which was not supposed to have been brought in the magistrate court. In any event, the appellants have not been deprived of such a benefit, their arguments is that the alternative accommodation is [un]inhabitable but proof of that was not given since the witness who testified to that effect had not visited the houses in question and that is a fact not disputed on any way" [emphasis my own]

The respondent, of course, was merely echoing the sentiments expressed by the magistrate in his judgment as indicated earlier.

It appears, therefore, that there are two basic areas of convergence namely;

That the issue pertaining accommodation offered by the employer to an employee by virtue of the employment contract constitutes a vested employment benefit and that disputes attending to the same naturally fall within the ambit of "labour disputes"

That adjudication of such disputes is the exclusive preserve of the labour court.

Divergence however arises on whether the entire dispute or only part thereof lends itself for adjudication exclusively by the labour court. At the risk of repetition, it is necessary to point out that whereas the appellants subscribe to the former position, the respondent vouches for the latter. It is the respondent’s position that only the appellants’ defence to the claim is determinable in the labour court.

There appears to be intractable debate on whether any other court (particularly the High court with its inherent powers) other than the labour, court can exercise concurrent jurisdiction in matters concerning or linked to employment. The divergent views emanate to a large extent from an interpretation of subsections (1) and (6) of section 89 of the labour Act [Chapter 28:01]. The said provisions read

"89. Functions, powers and jurisdiction of the Labour Court.

The Labour Court shall exercise the following functions:

hearing and determining applications and appeals in term of this Act or any other enactment; and

hearing and determining matters referred to it by the Minister in terms of this Act; and

referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the labour Court considers it expedient to do so;

appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application

d1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters

doing such other things as may be assigned to it in terms of this Act or any other enactment

…………

…………

………….

…………

No court, other court than the labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred in subsection (1)

Whereas no controversy arises in respect of dispute specifically set out in s86 (1) as these are the exclusive domain of the labour court, the same cannot be said of disputes equally resolvable under the common law. Reference to two cases will suffice to illustrate the dichotomous views expressed by the courts in this regard.

In DHC International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201(H), MAKARAU JP (as she then was) adopted the view that deference should be given to the labour court in such matters of apparent concurrent jurisdiction   between the High Court and the labour court. She had to say at 204 D-F.

"As a general statement, it is correct that the labour court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law and /or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the labour court appears to arise….. The apparent conflict can be easily resolved by paying regard to the overall intention of the legislative in creating the labour court……..In such cases, the Labour Court’s jurisdiction being special must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of the special court could be defeated by the mere framing of a dispute as a common law cause of action where the Act has made specific provisions of the same. In my view, if the dispute is provided for in the Act, the labour court has exclusive jurisdiction even if the dispute is resolvable at common law"

See also McCosh v Pioneer Corporation Africa Ltd 2010 (2) ZLR 211 (H)

However, in Joram Nyahora v CFI Holdings (Private) Ltd SC 81/2014 ZIYAMBI JA arrived at a different conclusion – she had the following to say:

"As submitted on behalf of the respondent, the right of an individual to approach the High Court seeking relief other than that specifically set out in S 89(1) (a) of the Act has not been abrogated. Nothing in S 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of civil law, except in respect of those applications and appeals that are specifically provided for in the labour Act. Nor is there contained in S 89 any provision expressly authorizing the labour court to deal with an application such as the rei vindicatio. Such applications fall squally within the jurisdiction of the High Court"

There are a few noteworthy features that distinguish the current dispute is distinguishable from similar ones. Firstly the present matter deals with conditions of an employment contract which is still in existence as opposed to one that has since been terminated. In essence the position of the appellants is that they are legally entitled to habitable accommodation on account of their contract of employment. Secondly, most of the cases addressing this legal conundrum grapple with the question of the inherent powers of the High Court vis-à-vis the exclusive powers of the Labour Court in labour disputes, yet in the present matter the court of first instance was the Magistrates Court itself a creature of statute whose powers are located within the statute creating it. It does not enjoy the same wide powers as the High Court (section 13 of the High Court Act, Chapter 7:06)   which in appropriate cases permit the same to exercise concurrent jurisdiction with the labour Court on labour related matters.

In my view the current matter is resolvable without the need to wade into the above debate. This is because it falls into that category of disputes which are specifically identified as falling within the exclusive province of the labour court. This is because it relates in a significant way to the interpretation of the appellants’ conditions of employment.

Where the Magistrate fell into error, as I see it, is his untenable attempt to draw an artificial separation between the cause of action as articulated in the Respondent’s claim on the one hand and the defence as set out in the appellants plea on the other. What the court a quo did in essence was to adopt the position that whereas it had the jurisdiction to entertain the respondents claim, it had no jurisdiction to hear the appellants defence ostensibly because the latter is a labour matter. The appellants were therefore effectively denied audience in the sense that their defence was not even considered on the pretext that it fell for consideration before a different forum. It is absurd and farcical in the context of this dispute to try and divorce the cause of action from the defence. The two are inextricably interwoven.

A finding that the king mine houses are unfit for human habitation, for instance, would by necessary implication mean that the appellants may be legally entitled to resist their relocation thereto until those houses are suitably renovated. Alternatively they may be entitled to stay put until the respondents provide them with suitable alternative accommodation. Failure to observe something as basic as this may very well result in them being rendered homeless yet their contract of employment guarantees them suitable accommodation.

Viewed from a different angle, the disposal by the respondent of the Chemberi houses to a third party without providing alternative suitable accommodation to the applications would hypothetically speaking amount to a breach of the employment contract thereby placing the dispute within the province of the Labour Court.

When viewed from a reverse angle, (i.e. from the respondent’s viewpoint), the refusal by an employee to follow lawful instructions given by an employer (in this case the refusal to vacate certain premises) without good cause for such refusal, amounts to insubordination which conduct, notionally speaking, also places the respondent’s cause of action before the court a quo one based on a labour dispute.

Whichever way one looks at the dispute therefore, it was futile and artificial for the Court a quo to draw a distinction between the court to hear the respondent’s cause of action and one to entertain the appellant’s defence.

It is perhaps necessary to briefly address the issue of locus standi as it dovetails with the question of jurisdiction. It was averred on behalf of the respondent that the appellants cannot cling on to property belonging to a third party (GZU) on the basis of conditions of employment which is only binding as between the parties. The respondent cannot have it both ways; it cannot on the one hand lay claim to locus standi to bring a claim for the eviction of the appellants on the basis of its residual obligation to give vacant possession of the property to the purchaser, yet in the same breath protest that the appellant cannot invoke a labour related defence in respect of the property   belonging to a third party. There is a contradiction that inheres in that approach. The Respondent had a choice to make; either claim locus standi to sue for eviction and be ready to confront the defences raised thereto (including those founded on the contract of employment) or relinquish locus standi to the purchaser (i.e. GZU) and let same deal with any applicable defences.

One other advantage which attends to placing the entire dispute before the labour court is that it (i.e. the Labour Court) through the dispute resolution mechanisms at its disposal is able to  investigate all the issues conjunctively which relate to this dispute which issues include the question of the habitability or otherwise of the houses in question, the interpretation and implementation of the company’s relocation policy as well as the consequences of either party failing to honour the terms and conditions of the employment contract. In other words all the claims, defences and counterclaims, if any are dealt with in a single suit. The piecemeal and disjointed approach adopted by the Court a quo is untenable.

In summation, therefore there is merit in the appellants’ contention that the court a quo lacked jurisdiction to hear the dispute as same was patently a labour one which could only have been heard and determined by the Labour Court. This preliminary point should therefore be upheld.

Costs

The substantially successful party is usually entitled to costs. There is no justification in denying appellants such costs.

Resultantly, the following order be and is hereby given:

ORDER

It is ordered that:

The appeal be and is hereby upheld with costs

The decision of the court  a quo is hereby set aside and substituted with the following:

Plaintiff’s claim is hereby dismissed for want of jurisdiction with costs

Ruvengo Maboke and Company, Appellant’s legal practitioners

Chuma, Gurajena & Partners, Respondent’s legal practitioners