On 9 January 2014, the plaintiff issued summons for
Provisional Sentence against the defendant for US$30,000= with interest on that
amount at the rate of 1.5 % per annum from December 2012 to the date of payment
in full.
The plaintiff's claim is based on a mortgage bond, number
0004917/2012, which was executed on 20 December 2012 by the defendant in favour
of the plaintiff over the following property: Certain piece of land situate in
the District of Salisbury being Stand 263 Salisbury Township of Salisbury
Township Lands measuring 342 square metres, held under Deed of Transfer No.
4109/2009.
In addition to the mortgage bond registered over the
property, the defendant signed an acknowledgement of debt for the US$30,000=.
On 19 March 2014, the defendant filed opposition papers.
He started by raising a point in limine on jurisdiction. He
said the debt arose out of the employer-employee relationship between the
parties, and, consequently, the dispute must be handled by the Labour Court,
since the High Court has no jurisdiction in labour matters. He said the
mortgage bond was just security for a staff loan. On the merits, his defence
was that the plaintiff has not fully paid him his severance package; he will
pay the mortgage loan when the plaintiff has paid him all his dues.
The background is that the defendant was previously
employed by the plaintiff. Following a restructuring exercise, the defendant's
post became redundant, and, on 10 October 2012, the plaintiff and the defendant
concluded a termination contract.
According to the agreement of 10 October 2012, the
applicant would be paid US$227,318=45 in terms of calculations on an attached
schedule. There were other non-monetary benefits. One of such benefits itemised
on the schedule was that the plaintiff would pay the cost of drilling and
installing a borehole on presentation of quotations by the defendant. The
defendant's official motor vehicles, a Toyota Prado and a utility double cab,
were also to be transferred to the defendant. The modalities of the transfers
were detailed in the schedule. The defendant accepted the package as itemised
in the schedule “in full and final settlement of all monies due and owing to
him.” He further accepted that in terms of the agreement, his last working day
shall be on the day he received his package, 'provided that such date shall be
no later than 30 November 2012.'
In his opposition, the defendant said the following matters
were still outstanding;
(a) The retrenchment authorisation from the Ministry.
(b) Copies of the retrenchment submissions to the Zimbabwe
Revenue Authority (ZIMRA) and the tax clearance certificate.
(c) Final payslip showing the sums payable to him, less
advances paid.
He also said the issue of the borehole and motor vehicles
had not been finalised.
The defendant's conclusion was that because of the
outstanding matters itemised above, he was still an employee of the plaintiff
and owed salaries in excess of the $30,000= being claimed on the mortgage.
I now proceed to determine the matter.
Firstly, this is not a labour matter. It is a matter of
foreclosure on a mortgage bond.
The defendant was an employee of the plaintiff up to “no
later than 30 November, 2012” in terms of the termination agreement. The
termination agreement was concluded on 10 October 2012 and Clause 2 said the
last working day would be the day he received his termination package 'provided
that such date shall be no later than 30 November 2012.' The agreement which
was signed by the parties, was to the effect that if there was a delay in
paying the retrenchment package, the defendant would remain an employee, but 30
November 2012 was agreed to be the final deadline. Indeed, the plaintiff argued
that after 30 November 2012, the defendant never reported for duty. This is
because he knew he was no longer an employee. So how can he be paid a salary
when he had stopped working? This means that by 1 December, 2012, the defendant
was no longer an employee. If there was anything still outstanding, he could
claim it and sue for it; but his status as an employee changed forever at the
end of November 2012.
In terms of the termination agreement, the defendant ceased
to be an employee after 30 November 2012.
However, due to the plaintiff's benevolence, the defendant
was allowed to enjoy the benefits of a concessionary housing loan reserved for
its staff. In December 2012, a mortgage bond was registered over that property.
In my view, this was a commercial transaction for the purchase of immovable
property between two individuals of full contracting capacity. The terms of the
mortgage bond were very clear and they included foreclosure in the event of
failure to pay.
In addition, the defendant signed an acknowledgement of
debt on 20 December 2012. In paragraph 3 of that acknowledgement of debt, the
defendant acknowledges that he is aware that if he fails to pay, there will be
foreclosure on the security pledged. Consequently, the point in limine that the
High Court has no jurisdiction cannot succeed in view of the above factors. It
must be borne in mind that even where parties are employer and employee; it
does not mean that all their contractual relationships are labour matters. The High Court's jurisdiction is ousted on
labour matters only. In this instance, there is a mortgage bond between an
ex-employee and its former employer and there is nothing in that mortgage
contract which makes it a labour matter.
The point in limine is therefore dismissed.
On the merits, it is common cause that the defendant
received a major component of his retrenchment package which was the US$227,318=45.
It is also common cause that up to the time of the hearing of this matter, the
defendant had not paid even a cent of the instalments he was supposed to pay on
the mortgage bond.
In my view, this shows that the defendant is not seriously
interested in the mortgaged property. It is shocking that an ex-employee who
has been given such a handsome retrenchment package by his previous employer
will fail to honour nominal repayments on a US$30,000= loan. It is even more
shocking that when the previous employer wants to foreclose, the defendant then
cries foul and claims that he is still an employee when he signed a termination
contract which gave a specific date of 30 November 2012 as the final
termination deadline. For the reasons already outlined earlier in this
judgment, the defendant is no longer an employee and he is not owed any salary
by the plaintiff.
Furthermore, the outstanding issues which the defendant is
raising have nothing to do with the Mortgage Bond agreement. The Bond is a
separate agreement concluded by two parties with full capacity and it is not
subject to an employment contract or any other agreement. There is, therefore,
merit in the plaintiff's case. Provisional sentence is therefore granted as
follows:
1. Defendant shall pay US$30,000= plus interest at the rate
of 1.5 % per annum from 20 December 2012 to date of final payment.
2. Stand Number 9263 Salisbury Township of
Salisbury Township Lands in Salisbury District measuring 342 square metres
registered under title number 4109/2009 is hereby declared executable.
