MTSHIYA J: The applicant herein seeks the following
relief:
"1. That the respondents and all persons
claiming occupation through them be and are hereby directed forthwith to
vacate the property known as Greenhills Farm situate at the PrimaFlora farming
operation in Tynwald, together with all their goods and chattels, and failing
which the Deputy Sheriff together with such officers of the Zimbabwe Republic
Police as he may require shall eject the respondents aforesaid together with
all persons claiming occupation through them from the said premises.
2. That
the respondents shall bear the costs of this application and all coats of the
Deputy Sheriff in ejecting them".
It is common cause that the
applicant is the owner of immovable property known as Greenhills measuring 12,1544
hectares situate in Tynwald, Harare,
(Grenhills). The applicant carries on agricultural activities on Greenhills
which include the growing of paprika, roses and some vegetables.
On the strength of a Zimbabwe
Investment Centre licence the major activity on Greenhills at the moment is the
growing of paprika. The paprika project is being run under an associate company
of the applicant called Holdex Investment (Private) Limited. Prior to the grant
of the investment licence, Greenhills concentrated on the production of roses.
It
is also common cause that the respondents in this matter were employed by the
applicant until retrenched on the basis of a retrenchment package approved by
the Ministry of Public Service Labour and Social Welfare, (the Ministry) on 7
June 2006. Each respondent's terms and conditions of retrenchment were:
"3
Months severance pay;
2
Months per full year worked service pay;
3
Months notice pay;
Cash
in lieu of leave at 30 days per annum;
3
Months relocation allowance;
NEC
Gratuities for over 8 years worked".
The
retrenchment was attributed to the collapse of the main business. All
respondent's signed for their retrenchment packages and have all since
acknowledged receipt of their packages.
On
receipt of their packages the respondents undertook to vacate Greenhills. They
all declared as follows:
"We, the undersigned workers,
voluntarily choose to accept a retrenchment package from the owners of
Intercontinental Holdings (Private) Limited trading as Prima Flora
understanding that it complies with Statutory Instrument 252 of 1992. The
package to be paid will be paid as follows:
Three months notice pay; Three
months severance pay: Three months relocation allowances: Outstanding leave,
gratuity of two months per completed year worked.
After payment as stated above
is received, we agree to vacate the farm within 48 hours. We have no other
claims against the farm or owners in question. We acknowledge this notice
constitutes formal notice of termination of employment required by law and
commences 1st May 2006 and shall end 31st May 2006. It is
agreed that NSSA, NEC and any income tax will be deductible from the amounts
below and our attached signatures hereby confirm that we are in agreement with
the amount of monies to be received".
The
retrenchment package referred to in the above declaration is in line with what
was approved by the Ministry.
Contrary
to their undertaking, the respondents have not vacated Greenhills and hence
this application. The applicant argues that the respondents are not entitled to
continued occupation of Greenhills. Many efforts have been made to ensure the
departure of the respondents from
Greenhills but to no avail.
Upon
being served with this application, on 26 August 2009, one Mr A. Windimani
(Wandimani) of Suite 4 Alpha House, Kwame
Nkruma Avenue, Harare,
purporting to represent the six respondents, filed a notice of opposition to
the applicant's application. The notice was supported by an affidavit from the
first respondent only. The rest of the respondents did not file any supporting
affidavits. Strictly speaking therefore it means second to sixth respondents, are
not before the court. This was raised as a point in limine by the applicant but was later abandoned for the sake of
progress.
The applicant had also raised, as
point in limine, the issue of the notice of opposition filed by Windimani who is
not a legal practitioner. It was submitted that the said Windimani, being not a
legal practitioner, could not purport to represent any of the respondents. I
agreed with that submission.
When
Windimani attempted address me in this court, he raised the point that he was a
trade unionist representing his members. I pointed out to him that whereas the
Labour Act [Cap 28:01] allows trade
unionists to represent their members in the Labour Court, there was no such enabling
legislation with regards representation in the High Court. The parties could
appear in person or be represented by a legal practitioner. I therefore denied him
audience before me and thereafter allowed
the first respondent, Veronica Nechitima (Nechitima) to address the court.
The
last point in limine raised by the
applicant was that the purported notice of opposition was filed out of time.
That was correct.
Notwithstanding
my decision to allow the first respondent to address the court, she too was not
properly before the court for the following reasons:
1. the
filing of a notice of opposition on her behalf by a non-legal practitioner
rendered the process procedurally defective, to the extent that in terms of the
rules of the court there was no notice of opposition.
2. The
application was served on the respondents on 6 August 2009 and the purported notice
of opposition was only filed on 26 August 2009. That was out of time and there
was no application for condonation.
3. The
applicants' heads of argument were served on the respondents on 19 January 2010
and up to the date of the hearing of this case no efforts had been made through
court processes to rectify the issues raised in limine by the applicant.
In addressing the court Nechitima
applied for a postponement so that a legal practitioner could be engaged by the
respondents so as to put the papers of all respondents in order and then have
the case argued.
Advocate
Morris opposed the application for a
postponement mainly on the basis that the respondents had no case at all and
the postponement would only lead to an escalation of costs. Advocate Morris then went further to submit that
since the respondents were not legally represented he was prepared to abandon
all the preliminary issues he had earlier on raised and have the matter argued
on the merits, with the first respondent representing the rest. He referred the court to Rule 4C of the High
Court Rules 1971 (the Rules) which provides as follows:
"4C. The court or a judge may, in
relation to any particular case before it or him, as the case may be -
(a) direct, authorise or condone a
departure from any provision of these rules, including an extension of any
period specified therein, where it or he, as the case may be, is satisfied that
the departure is required in the interests of justice;
(b) give such directions as to procedure
in respect of any matter not expressly provided for in these rules as appear to
it or him, as the case may be, to be just and expedient".
I
rejected Nechitima's application for a postponement for the purposes of
engaging a legal practitioner at the last hour. In rejecting the application I
pointed out that the:
- points in limine were raised in applicants' Heads of argument which were
filed on 19 January 2010 and served on the respondents on the same day - a
period of two months before this hearing. No steps were ever taken to attend to
the issues raised in limine, which
issues included legal representation. The respondents had ample time to arrange
for legal representation.
- Throughout the alleged dispute the
respondents were being advised by their trade Unionist, Windimani.
Being
in agreement with Advocate Morris's
argument that I put aside procedural technicalities and proceed to condone
irregularities referred to in the points in
limine, I found it to be in the interests of justice to proceed by way of rule
4C of the Rules as prayed for by the applicant. In so doing I convinced myself
that the issues raised were of a procedural nature and most importantly the
applicant had abandoned its opposition to them. It was thus necessary, in the
interests of justice to grant condonation and proceed to dispose of the matter
on the merits.
Advocate
Morris submitted that he would abide
by the filed Heads of Argument.
I
then asked Nechitima to respond to the applicants arguments on her own behalf
and on behalf of the other respondents. She reluctantly proceeded and submitted
that in the main the respondents would have preferred to meet face to face in
court with Mr Dobson, Applicant's Managing Director. She then submitted that
the main issue was that although they accepted payments under the retrenchment
package, the package had been signed for by management. Respondents' had no
problems though with the package except that it was not based on the agreed May
increases.
Nechitima admitted that the
employment relationship between respondents and the applicant had terminated at
the end of May 2006 when all respondents were paid their packages. She said,
however, they had to accept the money since 'no one can refuse money'.
In the main Nechitima's arguments were
that they had nowhere to go and had served respondent for a long time and that
the retrenchment package had been irregularly imposed on the respondents.
The
papers before me clearly indicate that the respondents were retrenched in terms
of the law. The respondents accept that Greenhills is owned by the applicant
and that they could only remain there by virtue of their employment. When that
employment was lawfully terminated at the end of May 2006 through agreement and
subsequent approval by the relevant Ministry, the respondents had no right to
remain at Greenhills.
Nechitima, conceded on behalf of all
the respondents that they knew they had been retrenched and they also accepted
payments from their retrenchment packages. If indeed there were any
irregularities, which I must say are difficult to appreciate in view of the
undertaking signed by the respondents and quoted in full herein at page 2 of
this judgment, the applicants should have proceeded by way of review in this
court. They did not do so and thereby waived their right to challenge the
retrenchment package. In Chidziva & Ors Zimbabwe Iron & Steel Company
Co Ltd 1997(2) ZLR 368(S) KORSAH JA had this to say regarding the issue of
waiver:
"The effect of the waiver of a legal
right is to extinguish that right and any concomitant obligation: Laws v Rutherfurd 1924 AD 261. In order
to establish a waiver, all that one must show is that the party has taken some
step which is only necessary, or only useful, if the objection to the
irregularities has been actually waived, or has never been entertained.
However, the intention or conduct of the party waiving a right must be conveyed
to the other party.....
In the present case, the conduct of
the majority of the retrenched employees, by accepting the retrenchment
package, was inconsistent with the enforcement of the right to have the matter
referred, in terms of s 3(6) of the Regulations, to the retrenchment committee,
and clearly evinced an intention to surrender that right. The respondent acted
upon their intention to accept the retrenchment package and paid to hem the
benefits of the agreed package. With acceptance of each payments the rights of
the appellants perished....
It is true that delay in enforcing a
right does not per se amount to a
waiver. Mahaber v Sharman NO & Anor
1985 (3) SA 729 (A) 736J-0737A. But as INNES CJ observed in New York Mutual v Ingle supra at p 551:
'Neglect to enforces a right
timeously may under certain circumstances have the same effect as a waiver of
it, even though the period of prescription has not elapsed. Such cases come
very near the line of estoppel. As pointed out by the Privy Council in Lindsay Petroleum Co v Herd (LR 5 PC Appeals, at
p 240), where a man has by his conduct and neglect, 'though perhaps not waiving
the remedy, yet put the other party in a situation in which it would not be
reasonable to place him if the remedy were afterwards to be asserted' then
lapse of time becomes of great importance. When a person entitled to a right
knows that it is being infringed, and by his acquiescence leads the person
infringing it to think that he has abandoned it, then he would under certain
circumstances be debarred from asserting it"
See
also Fungura &Anor v Zimnct Insurance
Co. Ltd 2000(1) ZLR 379(H).
The
principles of law enunciated in the paragraphs quoted above apply in casu.
This
application was filed on 7 July 2009. The respondents accept that their
employment contracts were terminated at the end of May 2006. The respondents
accepted their retrenchment packages. The respondents only started formally raising
the issue of irregularities attaching to the Ministry approved packages on 26
August 2009 in their notice of opposition to this application. Clearly they had
long lost their chance to approach this court for review. The conduct of the
respondents since 31 May 2006 does not help their argument pertaining to
irregularities attaching to the retrenchment package(s).
Assuming
that the respondents were being provided with employer accommodation at
Greenhills, the maximum period of remaining at Greenhills after termination of
employment on 31 May 2006, would have been one month. Even if we were to extend
that to 7 June 2006 when the Ministry approved the retrenchment package(s) the
respondents would still remain unprotected by the law. This is so because s 12(6) of the Labour Act [Cap 28:01] provides as follows:"
1....
2. ...
3...,.
4. ...
5....
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 subsection (4) or (5).
7. ..
The respondents undertook to vacate
Greenhills by 31 May 2006. They still remain on the property.
My
finding therefore is that the respondents have no right whatsoever to remain at
Greenhills and accordingly the applicant is entitled to the relief it seeks.
It
is therefore ordered as follows:
1. That the respondents and all persons
claiming occupation through them be and are hereby ordered to vacate the
property known as Greenhills Farm situate at the PrimaFlora farming operation
in Tynwald, together with all their goods and chattels, within fourteen (14)
days from the date of service of this order and failing which the Deputy
Sheriff together with such officers of the Zimbabwe Republic Police as he may
require shall eject the respondents aforesaid together with all persons
claiming occupation through them from the said farm.
2. That
the respondents shall bear the costs of this application and all costs of the
Deputy Sheriff in ejecting them.
Atherstone & Cook, applicant's legal practitioners
All respondents, Greenhills Farm, Tynwald, Harare