Wildlife AND Environment Zimbabwe V Getrude Usore AND Vincent Mukoza

### Preamble
1
HMT 91-20
HC 189-20
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WILDLIFE AND ENVIRONMENT ZIMBABWE

versus

GETRUDE USORE

and

VINCENT MUKOZA

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 12 and 26 November 2020

Opposed Application

C Ndlovu, for the applicant

N. Nhambura, for the respondent

MWAYERAJ: The applicant approached the court seeking for eviction of the respondents, its former employees. The respondents opposed the application on the basis that the applicant had not fulfilled a condition precedent to the eviction in terms of the law in particular SI 116/2014. The respondents argued that their terminal benefits were still outstanding.

The respondent correctly raised points in limine which points were acceded to by the applicant and corrective measures taken. The first point related to wrong citation of the applicant as Wildlife and Environment Zimbabwe Manicaland instead of simply citing the correct name as Wildlife and Environment Zimbabwe. The parties agreed that there was no prejudice in having the citation amended to reflect the correct name as clearly this did not amount to substitution of the entity. The correct name was endorsed by consent.

The second point in limine was on whether or not the deponent to the applicant’s founding affidavit, the managing director had authority on the basis that the resolution did not show whether or not the quorum of the executive was fully constituted. The parties consented that the deponent to the affidavit had appropriate authority to depose to the affidavit. The respondent thus abandoned the point in limine.

The parties then proceeded to address the court on the merits of the case. The background to the matter is as follows. The applicant employed both respondents who were based at Cecil Kopje Nature Reserve in Mutare. The respondents as employees of the applicant inter alia enjoyed staff accommodation at the staff camp or quarters at Cecil Kopje. Sometime in June 2020 both respondents were charged for misconduct and after a full hearing before a disciplinary committee they were both dismissed from employment. The respondents lodged an appeal with the Appeal Committee. The respondents unsuccessfully prosecuted the appeal which was dismissed. The respondents despite being notified and being aware that their employment status has terminated have not vacated the staff quarters. The applicant has recruited other members of staff considering the void created by the termination of the respondents. The applicant requires the staff quarters for its new employees.

The issue that falls for determination in this matter which is an application for rei vindicatio is whether or not the respondents have a right of claim to possess the applicant’s staff quarters. Put differently the crucial question for determination is whether or not the respondents have the right of retention based on contractual right of claim.

The applicant argued that the services of the respondents having been terminated in June signalled the end of employer employee relationship. The applicant further argued that once the employer-employee relationship has been severed the respondent’s basis of holding on to the accommodation no longer exists and thus the respondents should vacate the premises.

The respondents on the other hand argued that they have a right of a lien or right to remain in occupation of the staff quarters in light of the fact that the applicant has not yet paid them their terminal benefits. The respondent contended that payment of their benefits is a condition precedent to their vacation of premises. The respondent raised an argument that terminal benefits ought to be paid before vacation. The respondents relied on SI116/2014 Collective Bargaining Agreement for Agricultural Industry s 21 (4) thereof which provides:

“An employee who is summarily dismissed in terms of the code of conduct shall vacate the property of his or her employer immediately on payment of monies due to him or her from the employer to the employee within seventy two hours of dismissal.”

It is important at this stage to look at common cause aspects as discerned from papers and oral submissions. Both respondents were charged for misconduct and they appeared before a disciplinary committee which conducted full hearing. Both were then dismissed. The respondents appealed to the appeals committee and the appeals were dismissed. The sequence of events outlines standard due process as per the Labour Act [Chapter 28:01]. There was no summary dismissal but due process followed in conformity with the Labour Act to protect and safeguard rights of employees. The facts presented do not speak to summary dismissal which would require importation of SI 116 of 2014 to safeguard the rights of an employee summarily dismissed. It remains a fact that the respondents were dismissed pursuant to disciplinary hearing and they lodged appeals which were dismissed. The fact is that both respondents were dismissed after due process. The employer employee relationship which entitled them accommodation has seized and as such basis of holding on to accommodation has fallen off.

THE LAW

The application being one for rei vindicatio entails that the applicant shows that:

It is the owner of the property.

At the time of application the property is in respondent’s possession.

That the possession by the respondent is not with the owner’s consent.

See Nyahara v CFI Holdings (Pvt) Ltd SC81/14 where Ziyambi JA (as she then was) commenting on a claim based rei vindicatio stated as follows:

“The ownership of the vehicle, therefore, remained vested in the respondent. Upon his dismissal which was not suspended by the appeal noted against it, the appellant ceased to be an employee of the respondent and any former right acquired by virtue of his employment to possession of the vehicle for his use also ceased.”

Also see Zimbabwe Broadcasting Holdings v Gono 201 (1) ZLR 8 H in which Gowora J (as she then was) cited with approval remarks by Gubbay CJ (as he then was) in Arundel School Trust v Sally Pettigrew HH242-14 wherein he stated:

“Pending the removal of the suspension the respondent was not entitled to continued enjoyment of the benefits comprising of free occupation of the headmistress house and continued use of motor vehicle.  A labour relations officer cannot order the respondent to surrender these particular benefits, consequently the applicant being unable to resort to self-help approached the High Court for relief. I consider it was justified in doing so.”

In the Zimbabwe Broadcasting case (supra) the court held that once the employee has been suspended or dismissed from employment any benefits extended to that employee from that relationship ceases. See also Premier Services Medical Aid Society v Henry Mandishona HH 595-16.

In this case the respondents were employed by the applicant and during employment enjoyed staff benefits inclusive of accommodation. The employer-employee relationship terminated upon the respondent’s dismissal. The position remained extant even after their appeal which was dismissed. The basis of enjoying the accommodation has fallen off. The respondents have no claim or right of retention. Their dismissal was pursuant to due process. That they do not agree with it is not a factor which clothes them with the right to possession. The respondents seem to entertain that the contracts of employment have not been conclusively terminated because they are owed. The termination occurred and simultaneously their rights to accommodation fell off. The matter of claim for terminal benefits is a separate issue for another day. It does not clothe the respondents as employees of the applicant. Once employment was terminated the claim to the use of accommodation fell away. The law no longer regards the respondents as employees since they were duly dismissed. See Premier Services Medical Aid (supra) and also Chitungwiza Municipality v Maxwell Karenyi HH 93-18 and Zimtrade v Matora Mabanyu HH 52/05.

It is settled that the owner of property may claim his property whenever from whoever is holding it. This naturally flows from property law that an owner shall not be deprived of his property without his consent. In this case the respondents having been duly dismissed following due process have no right of retention of the applicant’s property. The applicant is the owner of the property and the continued occupation of the same by the respondents is not with the applicant’s consent. The applicant is entitled to get his property.

On the issue of costs the applicant properly abandoned prayer for costs de bonis and sought costs on an ordinary scale. It appears the holding over by the respondents was occasioned by entertaining that there was no definitive conclusion to termination of employment since they were not paid their benefits. The employment was terminated on dismissal. In the circumstances the misapprehension of facts cannot be viewed as opposition out of mischief, costs on an ordinary scale suffice.

Accordingly it is ordered that:

The respondents and all those claiming occupation through them, be and are hereby evicted from applicant’s staff quarters at Cecil Kopje Mutare within 30 days from the date of this order.

Should the respondents fail to comply with para 1 the Deputy Sheriff is hereby directed to remove and evict the respondents and all those claiming occupation through them from the applicant’s staff quarters at Cecil Kopje Mutare.

Respondents to pay costs of this application.

Gonese and Ndlovu, applicant’s legal practitioners

Mugadza Chinzamba & Partners, respondents’ legal practitioners