Civil Appeal
MAFUSIRE
J:
[1] This
was an appeal against an order of eviction granted by the court a
quo
in favour of the respondent against the appellant. The order of
eviction was in relation to certain premises, a dwelling house,
situate Shabani Mine, Zvishavane, owned by the respondent but which
had at all relevant times been allocated to, and was occupied by,
the appellant by virtue of his employment with the respondent.
[2] In
the court a
quo,
the grounds of claim, as pleaded by the respondent by way of a court
application, were these:
(i)
that the appellant was once employed by the respondent as Underground
Manager;
(ii)
that by virtue of his contract of employment he was entitled to a
company house;
(iii)
that in accordance with the contract of employment he had been
allocated the premises in question;
(iv)
that his entitlement to, and occupation of, those premises, or any
others that he might have been allocated during the currency of his
employment, would cease upon the termination of his employment with
the respondent;
(v)
that the appellant had left the respondent's employment on 31
January 2012 [i.e. more than 4 years ago];
(vi)
that on various occasions the respondent had requested the appellant
to surrender the premises back to it but that he had not done so;
(vii)
that despite a formal letter of demand by the respondent to the
appellant to vacate the premises, he had remained in occupation.
[3] The
appellant opposed the application.
First,
he took a point in
limine
that this was a labour dispute over which, by virtue of section 89[6]
of the Labour Act, Cap
28:01,
the court a
quo
had no jurisdiction. He then pleaded to the merits and denied that he
had left the respondent's employ or that his contract of employment
as Underground Manager with the respondent had been terminated, but
that he had merely been seconded from Shabani Mine to the Zimbabwe
Development Corporation [“ZMDC”]
which in turn had seconded him to Kusena Zim Diamonds.
[4] In
brief, the appellant's main grounds of defence in the court a
quo
were:
(i)
that at all relevant times the respondent was a company under a
reconstruction order in terms of the Reconstruction of
State-Indebtedness Insolvent Companies Act, Cap
24:27;
(ii)
that when it was placed under a reconstruction order the ZMDC “took
over”
the respondent;
(iii)
that on 8 November 2011 the appellant was seconded to Kusena Zim
Diamonds;
(iv)
that secondment simply means a period when an employee is sent by his
employer to work for a different organisation or a different part of
the same organisation;
(v)
that at Kusena Zim Diamonds the appellant had been staying in a
one-roomed cottage at the Mine Compound;
(vi)
that on 22 April 2015 the appellant had further been transferred to
Jena Mines, a subsidiary of the ZMDC;
(vii)
that at Jena Mines the appellant was staying in a guest lodge;
(viii)
that as such, the appellant was still employed by the respondent and
that until such time that his contract of employment with the
respondent was terminated, his entitlement to occupy the premises in
question remained.
[5] The
respondent produced several documents to back up his claims. One such
was “Annexure M”, the letter dated 8 November 2011 written to him
by the ZMDC. It advised him of his secondment to Kusena Zim Diamonds
upon the terms and conditions spelt out therein.
[6] On
the duration of the secondment, Annexure M said this would depend on
the exigencies of the work at both Kusena Zim Diamonds and some other
mines named therein. On accommodation, the letter said the company
would provide him with accommodation at the mine, subject to
availability. On termination of employment, the letter said subject
to the right of dismissal, notice of termination of employment would
be three calendar months by either party. It stressed that the
termination of that contract as a disciplinary measure would in no
way give him the option to return to the respondent.
[7] The
other document produced by the appellant, “Annexure O”, was the
letter to him by the ZMDC on 22 April 2015, advising of his further
transfer to Jena Mines until further notice.
[8] On
the conditions of service, Annexure O said those obtaining at Jena
Mines would apply, and that they included salary and benefits.
However, the letter further said that this did not change the
appellant's original secondment status from
Shabani Mine.
[9] In
an answering affidavit, the respondent, among other things, pointed
out that Annexure M was ZMDC's letter to him, not a letter from the
respondent; that the letter was the appellant's contract of
employment with the ZMDC; that this showed that his contract of
employment with the respondent had since been terminated as one could
not report to two masters.
[10] In
granting the order of eviction, the court a
quo
found, or reasoned, as follows:
(i)
that the issue before it was not of termination of employment but of
eviction, and that as such, the court was empowered to entertain the
application;
(ii)
that the appellant [then respondent in the court a
quo]
was
on secondment
to the ZMDC;
(iii)
that it had been clearly stated that the mine would provide
accommodation and allocate the appellant with new residences at the
new stations;
(iv)
that therefore there was no valid reason why the appellant should
have two houses from different mines at the same time, in the same
way that he did not receive two salaries at the same time.
(v)
that upon transfer one could not hold onto the property of the
previous station.
[11] Before
us, the parties have largely repeated the same arguments as in the
court below. Mr Ndlovu,
for the appellant, has insisted that the ZMDC had “taken over”
the operations of the respondent after it was placed under
reconstruction and that none of the employees, the appellant
included, had any say over their fate, except that the take-over
should not prejudice them. He said the premises in question remained
the appellant's main accommodation which was tied to his contract
of employment and that all the other residences that he might have
been allocated at his new stations on secondment remained temporary
accommodation.
[12] Mr
Mazonde,
for the respondent, denied that the ZMDC had taken over the
respondent. He denied that there could have been any such thing as
“taking over” of a company, by another company. He said the
respondent was a company under a reconstruction order and which was
under the control and direction of an administrator. Mr Mazonde
insisted that the ZMDC was the appellant's new employers and that
it was the ZMDC, not the respondent, which was seconding the
appellant every time it saw fit.
[13] There
were some grey areas on some aspects of the matter which none of the
parties could properly shed light. For example, what did it mean that
the ZMDC had “taken over” the operations of the respondent? What
were the terms and conditions of that take over, particularly with
regards to the respondent's labour force and its assets such as
housing?
[14] But
undoubtedly, there had been some kind of transfer or relationship
between the respondent, under reconstruction, and the ZMDC. In the
case of Badza
v SMM Holdings [Pvt] Ltd [Under Reconstruction] t/a SMM Properties
HMA 20-17, it was common cause that the ZMDC, a parastatal, had
become the respondent's sole or major shareholder after it had
poured a substantial sum of money to resuscitate the respondent's
operations. Surely, for such sums of money to pass hands like that
some sort of agreement would have been signed to govern the parties'
new relations. These agreements might, or might not shed light on,
among things, the fate of the respondent's employees. None of the
parties made reference to any such documents, let alone produce them.
[15] The
other grey area was in some of the expressions used in certain
documents. For example, Annexure O, namely ZMDC's second letter to
the appellant on 22 April 2015 further transferring him from Kusena
Zim Diamonds to Jena Mines said, among other things, that the
conditions of service obtaining at Jena Mines and which would now
govern the appellant regarding his salary and benefits, would not
change the appellant's original status from
Shabani Mine.
This would seem to support the appellant's argument that, contrary
to the respondent's claim, his original contract of employment with
it had never been terminated and that he was merely on secondment to
the ZMDC.
[16] It
is true an employee who is on secondment to another branch of the
employer or enterprise is transferred on a temporary basis. He
remains employed by the seconding office or employer: see Shumba
v Commercial Bank of Zimbabwe
HH100-06 and Dairibord
Zimbabwe Limited v Muyambi.
In
Dairibord's
case, Dairibord, the employer, had seconded Muyambi, the employee,
from its main operations in Zimbabwe to one of its subsidiaries in
Malawi, on a contract of secondment. Disgruntled by alleged
non-performance, in Malawi, Dairibord terminated the contract of
secondment. The Supreme Court held that the termination of Muyambi's
contract of secondment had not terminated his original contract of
employment in Zimbabwe.
[17] Further
ambiguity in the present case is brought by Annexure M's clause on
termination of employment. It said:
“Subject
to the right of dismissal, notice of termination of employment shall
be three calendar months notice from either party in writing. Please
be advised that termination of this contract as a disciplinary
measure will in no way give you the option to return to
SMM.”
[18] That
clause would seem to imply that only the termination of the
secondment contract on
disciplinary grounds
would disentitle him to return to the respondent on his original
contract, suggesting that any other reason for termination would not
present that difficulty for him.
[19] However,
having looked at this matter holistically, we have found no
misdirection by the court a
quo
in refusing to be entangled in issues of employment contracts, and in
confining itself to the narrow issue of eviction.
[20] There
is no doubt that the premises in question belong to the respondent.
We did not hear Mr Ndlovu
arguing that the form of the alleged “take over” of the
respondent by the ZMDC entailed assuming ownership of the
respondent's houses by the ZMDC. In the Badza
case above, it was pointed out that one of the incidents of ownership
of a thing is the owner's entitlement to its exclusive possession.
The law presumes possession of the thing as being an inherent nature
of ownership. Flowing from this, no other person may withhold
possession from the owner unless they are vested with some right that
is enforceable against the owner: see Silberberg
and Schoeman's
The
Law of Property,
5th
ed., at p 243. Otherwise an owner deprived of possession against his
will, can vindicate his property wherever found, and from whomsoever
holding it: see Chetty
v Naidoo.
[21] In
the present case, the appellant's original right to the occupation
of the respondent's premises in question stemmed from his original
contract of employment with it. It was not in dispute that such
original right would be extinguished by the termination of that
original contract of employment. The respondent said the contract had
terminated. The appellant said it had not. However, the documents
produced by the appellant himself suggest that it had. Annexure M was
the contract of secondment by the ZMDC with the appellant in respect
of the ZMDC's other operations. It was not the original contract of
employment with the respondent. So was Annexure O. By the time of
those documents the respondent had long since gone out of the
picture.
[22] The
appellant's argument is self-defeating. If ZMDC's taking over of
the respondent entailed its taking over the of respondent's houses,
then if he was being seconded and being given new accommodation at
his new work stations, he would not be entitled to retain the
original premises. As the court a
quo
noted, he would not be entitled to two houses from the same employer
at the same time, in the same way that he would not be entitled to
two or more salaries and benefits from the same employer at the same
time. If it was the
quality
of the accommodation at the new work stations that the appellant was
complaining about, then this would be a different case altogether.
[23] But
we consider the correct position to be that the appellant's
original contract of employment with the respondent, which had
carried with it an entitlement to accommodation in the premises in
question, had long since terminated, and that, as the generality of
the documentation showed, he was now on a new and separate contract
of employment with the ZMDC.
[24] In
the premises, we find the appeal to be unmeritorious. It is hereby
dismissed with costs.
13
June 2018
Hon
Mawadze J concurred: _______Signed
on Original_____________
Ndlovu
& Hwacha,
legal practitioners for the appellants
Chuma,
Gurajena & Partners,
legal practitioners for the respondent
1.
2002 [1] ZLR 448 [S]
2.
1974
[3] SA 13 [A], at p 20B
