The 76 applicants are employees, or
is it former employees, of Trauma Centre & Hospital, which, as that name
suggests, is not a juristic person.
The exhibits they have sampled, in
the form of 2 payslips for Watson Katemadaro (the 29th applicant)
and his employment contract, suggest that they were employed by an entity known
as African Medical Investments PLC which traded as Trauma Centre. That entity
is not a party to this application. In fact, it cannot possibly be because it
is not the one which won the Supreme Court judgment which has been taken into
execution.
The first respondent did.
The first respondent is, in fact,
the lawful owner of the premises located at Number 15 Lanark Road, Belgravia
Harare.
Following a protracted dispute over
that property between the first respondent and an entity known as Autoband
Investments (Pvt) Ltd, we are informed that the latter had unlawfully and
forcibly removed the first respondent from the premises in 2011 and commenced
operating a medical centre there. The Supreme Court resolved that dispute by
judgment delivered on 17 June 2014 (SC43-14) the operative part of which
reads:-
“1. The appeal is upheld with costs.
2. The judgment of the court a quo is set aside and substituted
with the following:-
(a) The eviction order granted by
the Magistrates Court Harare, in the matter between Autoband Investments (Private) Ltd t/a Trauma Centre v African Medical Investments Plc, under
Case No.MC 16435/11 be and is hereby declared to be of no force, effect and
application as against the applicant.
(b) It is ordered that the applicant
be and is hereby restored to possession and occupation of premises known as
Stand 2924 Salisbury Township of Salisbury Township Lands situated at Number 15
Lanark Road Belgravia, Harare.
(c) It is ordered that the
respondent pays the costs of this application on a legal practitioner client
scale.”
In pursuance of the order of the
Supreme Court, the first respondent issued a writ and moved for the eviction of
Autoband Investments (Pvt) Ltd t/a Trauma Centre from the premises. Kicking and
screaming, Autoband Investments (Pvt) Ltd t/a Trauma Centre has been evicted,
obviously with all those claiming through it including its patients, and,
indeed, employees.
Following that, the employees have
approached this court, on an urgent basis, arguing that they were not party to
the Supreme Court matter and for that reason they cannot be evicted on the
basis of its order. They seek the following relief:-
“TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this
Honourable Court why a final order should not be made in the following terms:
A. The order by the Supreme Court in
Case No. SC43/14 does not give the first respondent a right to dismiss the
applicants from their employ, evict or interfere with their respective staff
operations at Trauma Centre and Hospital situate at Stand No. 2924 Salisbury
Township of Salisbury Township Lands situate at No.15 Lanark Road Belgravia,
Harare.
B. The 1st respondent to
pay costs at an attorney and client scale.
INTERIM RELIEF (sic)
It is hereby ordered that pending
the confirmation of this matter (sic)
the applicant is granted the following relief:-
A. The 1st and 2nd
respondents be and are hereby ordered to stay eviction of all staff at premises
known as Stand 2924 Salisbury Township of Salisbury Township Lands situate at
No.15 Lanark Road, Belgravia, Harare pending the determination of the final
order.
B. That the 1st and 2nd
respondents shall not interfere with the respective staff operations at Trauma
Centre and Hospital situate at Stand No.2914 Salisbury Township Land situate at
No.15 Lanark Road, Belgravia, Harare.”
The applicants state in their
affidavits that they seek a stay of eviction/dismissal from employment because they were “at all material
times employees employed at Trauma Centre and Hospital with respective
contracts of employment thereto.” They go on to say that in pursuance of the
Supreme Court judgment, the first respondent has ordered their “dismissal and
eviction” from there. The first respondent has, after the dismissal and
eviction, barred them from the premises and from performing their duties. To
them, the first respondent's conduct “amounts to unlawful summary dismissal”
from employment in violation of section 16 of the Labour Act [Chapter 28:01]
which prohibits the alienation or transfer of their employment.
They therefore seek a reversal of
what they perceive to be an illegality….,.
The first respondent's case, as
presented in the opposing affidavit of Peter John Annesley, its Chief Operating
Officer, is a straight forward one. It is that although it is the owner of the
premises, which it occupied with its employees, it was evicted unlawfully by Autoband
Investments (Pvt) Ltd t/a Trauma Centre, an alter ego of one Vivek Solanki.
That company went on to unlawfully run a hospital facility at the premises and
employed the applicants while doing so.
The applicants have never been
employees of the first respondent.
The first respondent finally
obtained an order of the Supreme Court reinstating its occupation of the
premises on the strength of which it has evicted Autoband Investments (Pvt) Ltd
t/a Trauma Centre and all those claiming through it, including the applicants,
from the premises. An eviction cannot be a transfer of undertaking as a going
concern as to bring it under the provisions of section 16 of the Labour Act [Chapter
28:01] and there is no agreement between those parties to inherit the
employees.
I have already stated that the
applicants have not alluded to any legal basis upon which they lay a claim to
occupation of the premises or to employment by the first respondent.
What they have placed before me is a
Spanish omlete, which, to say the least, is an excursion in purposeless
activity. They appear to suggest that because they were employed by an employee
who ran a hospital facility at the premises, they should remain there till
kingdom come and anyone taking over the premises for whatever reason should
inherit them - even when there is no contractual relationship with them.
They appear to suggest that for them
to be evicted, they should have been cited as party to the proceedings which
terminated the tenancy of their employer.
What is beyond doubt is that they
were at that property on the basis of their employment by Autoband Investments
(Pvt) Ltd t/a Trauma Centre and were therefore claiming occupation through that
entity. It having lost the right of occupation, the applicants cannot then
acquire miraculously a non-existent right of extended occupation. They should
be evicted along with their employer.
While surprises never cease really in the
practice of law, it is difficult to comprehend how the applicants can seek to continue
executing duties at the premises. They were not employed by the walls of the
building. One wonders what it is they would like to remain doing there after
the departure of their employer. They would like to force the first
respondent to employ them against its will. The applicants are employed by Autoband
Investments (Pvt) Ltd t/a Trauma Centre which should continue to employ them
even after its eviction or should terminate them according to law.
