MATHONSI
J:
The
applicant seeks summary judgment for the eviction of the respondent
and all those claiming occupation through him from residential
premises known as no.16 West Estate, Lafarge Cement in Greendale,
Harare.
When
the respondent received the eviction summons in HC9669/17 in which
the applicant sought to vindicate against the respondent, it being
the owner of the premises which the respondent occupies without its
consent and authority, the respondent entered appearance to defend
and filed a plea.
In
that plea the defendant admitted losing his employment with the
applicant but averred that he was contesting his dismissal and would
only vacate the premises if he loses his labour case. He also
disputed liability to pay hold over damages on the ground that he
never agreed to any rental for the premises.
It
is against that background that the applicant has sought summary
judgment as it is of the firm view that the respondent possesses no
bona
fide
defence to the eviction claim and that appearance has been entered
for purposes of delay.
This
is because the respondent secured the premises by virtue of his
employment by the applicant as a quarry superintendent which
employment was terminated on 12 November 2013 following an act of
misconduct the respondent admitted having committed. For that reason
the respondent cannot continue in occupation of the company house not
being an employee of the company.
All
the material facts are really common cause.
The
parties indeed enjoyed an employer-employee relationship until the
respondent violated the employer's code of conduct resulting in him
being charged with misconduct. One of the acts of misconduct was that
he had left his work place without permission. In fact the respondent
had taken a Nissan Hardbody motor vehicle belonging to the employer
and driven it to a farm in Ruwa about 25km from his work location on
a personal errand and was busted by his boss who later preferred
charges against him. When that happened the respondent had, in vain,
apologized profusely. He was still dismissed from employment.
The
respondent appealed to the Labour Court against the dismissal but had
his appeal thrown out by that court by judgment delivered on 24
October 2014, the court concluding that there was no merit in the
appeal.
The
respondent then sought leave to appeal against the judgment of the
Labour Court which application for leave was not made timeously and
he had to seek condonation. The application for leave was not granted
he having defaulted resulting in its dismissal.
What
the respondent is doing now is to seek a rescission of the default
judgment dismissing his application for leave to appeal. So it is not
like there is any pending appeal but the respondent is relying on
that to contest eviction.
The
issue for determination therefore is whether a former employee who
was allocated company accommodation by the employer by virtue of his
or her employment but has lost that employment is entitled to resist
eviction by way of an actio
rei vindicatio
merely because he or she harbours an intention to contest the
dismissal, a dismissal that has been upheld by the Labour Court.
The
point to note is that there exists no employment relationship between
the parties at the present moment, it having been terminated.
It
is also common cause that the applicant is the exclusive owner of the
premises and had only given the premises to the respondent as part of
his employment benefits.
Can
the respondent continue enjoying the benefit of employment under
those circumstances?
The
principles of the actio
rei vindicatio
are settled in our law. The owner of property has a vindicatory right
against the whole world. It is a remedy available to the owner whose
property is in the possession of another without his or her consent.
Roman-Dutch law has always protected the right of an owner of
property to vindicate his or her property as a matter of policy even
against an innocent occupier or innocent purchaser, where the
property would have been sold. The occupier would only have the
defence of estoppel. See Mashave
v Standard Bank of South Africa Ltd 1998
(1) ZLR 436 (S) at 438C; Chetty
v Naidoo
1974
(3) SA 13 (A) at 20A-C; Oakland
F Nominees (Pty) Ltd v Gelria Mining and Investment Co Ltd 1976
(1) SA 441 (A) at 452A.
Indeed
the principle of the actio
rei vindicatio
is that an owner cannot be deprived of his or her property against
his or her will. All the owner is required to prove is that he or she
is the owner and that the property is in the possession of another at
the commencement of the action. Proof of ownership shifts the onus to
the possessor to prove a right to retention. See Jolly v Shannon and
Anor 1998 (1) ZLR 78 (H) at 88A-B; Stanbic
Finance Zimbabwe Ltd v Chivhungwa
1999 (1) ZLR 262 (H); Zavazava
& Anor v Tendere
2015 (2) ZLR 394 (H) at 398 G.
Ms
Moyo
for the respondent submitted that in an application for summary
judgment the respondent is not required to prove a defence. All that
the respondent is enjoined to do is to show that he has a bona
fide
defence which, if proved at the trial, would entitle him to succeed.
She submitted that the respondent has managed to do so because he had
shown that there is a matter pending in which he is challenging his
dismissal.
I
agree with Ms Kandoyowa
that there is no appeal which is pending at the moment, and that even
if an appeal had been pending in the Labour Court such an appeal
would not suspend the decision appealed against by virtue of the
provisions of s92E(2).
That
may indeed be academic because the appeal to the Labour Court was
dismissed. The respondent cannot return to the Labour Court which
upheld his dismissal.
As
already stated, what his pending in that court is an application for
rescission of judgment, not even the judgment dismissing the appeal
because that cannot be rescinded it having been made in the presence
of the respondent, but the judgment dismissing his application for
leave to appeal.
There
is therefore no appeal pending and no leave to appeal has been
granted. The respondent is holding onto nothing at all as would
entitle him to resist eviction.
I
have stated before that an employee who has lost employment has no
right to hold onto the property of the former employer allocated to
him or her by virtue of employment or as a condition of employment
merely on the grounds that he or she is challenging the termination
of the employment contract. See Montclaire Hotel and Casino HH501-15.
The
point is also made in William
Bain & Co Holdings (Pvt) Ltd v Nyamukunda
HH309-13 that a former employee cannot lawfully confiscate or hold
onto a former employer's property after termination of the
employment contract because the right to hold on to the property is
extinguished by the termination.
Put
in another way, a former employee does not acquire a right of
retention as can be used to resist a rei vindicatio on the basis of a
challenge of a completed dismissal from employment and a forlorn hope
that such dismissal may be reversed at a future uncertain date.
This
is particularly so in a case such as the present, where the former
employee is not even in court properly challenging the dismissal. He
is only seeking a rescission of a judgment which denied him leave to
appeal.
No
right arises out of a dismissed appeal especially in a situation
where even the leave to appeal against the judgment of the Labour
Court has also failed.
There
is no determination of the contract of employment in this matter
which distinguishes it from the case of Zimtrade
v Makaya
2005
(1) ZLR 427 (H) where this court held that the employer could not
seek to repossess its assets from an employee using the rei
vindicatio
pending the determination of the contract of employment.
In
this case the contract has already been determined by both the
employer's disciplinary committee and the Labour Court.
It
seems to me that the pronouncement of Makarau
JP
(as she then was) in Medical
Investments Ltd v Pedzisayi
2010 (1) ZLR 11 (H) at 114G, 115A is apposite. She said:
“….where
the status of the former employee is without dispute, the rei
vindicatio
can lie at the instance of the employer in appropriate cases and the
matter thereby falls outside the purview of the Labour Court as it is
not a matter that can be heard or determined in terms of the Labour
Act or any other related enactment. It is my view that the rei
vindicatio
is
not a cause of action whose remedy can be granted in terms of the Act
as a stand-alone remedy in the absence of a dispute that is
specifically provided for under the Act.”
The
learned Judge was making the point that the High Court has
jurisdiction to determine the claim for the recovery of the
employer's property in the hands of a former employee even though
the dispute was of a labour nature.
She
also made the crucial point that where the contract of employment has
been determined the rei
vindicatio
can
be used by the employer to recover the property.
It
is that right which the employer seeks to enforce by summary judgment
in this case.
Summary
judgment is an extra-ordinary and indeed drastic remedy in the sense
that it negates the right of a litigant who has expressed a
willingness to access the court and defend an action to do so.
It
is however a deliberate remedy designed to deny a mala
fide
defendant the benefit of the audi
alteram partem
rule
simply because the plaintiff's claim would be unassailable.
Therefore,
where the proposed defences of the defendant to the claim are clearly
unarguable both in fact and in law, the drastic remedy of summary
judgment is availed to the plaintiff. See Chrisma
v Stutchbury and Anor
1973 (1) RLR 277 (SR) at 279.
It
is settled that in order to defeat a summary judgment application the
respondent must disclose facts upon which his or her defence is based
with sufficient clarity and completeness so as to persuade the court
that if proved at the trial, will constitute a defence to the claim.
It
is also settled that not every defence raised by a defendant will
succeed in defeating a plaintiff's claim for summary judgment. It
must be a bona
fide
defence
stated with sufficient clarity and completeness to allow the court to
determine whether the opposing affidavit discloses a bona
fide
defence. See Kingston
Ltd v L D Ineson (Pvt) Ltd
2006
(1) ZLR 451 (S) at 458 F-G.
In
my view what the respondent has raised, that he is still fighting his
dismissal at the Labour Court even though that court dismissed his
appeal and denied him the right to appeal to the Supreme Court
against that judgment, is not a
bona fide
defence at all.
If
raised at the trial it will not succeed because the applicant is the
undisputed owner of the property which has a vindicatory right in
respect of that property.
A
dismissed employee has no right of retention in respect of the
property where the employment contract has been terminated and there
is no case pending in that regard.
The
applicant is entitled to summary judgment.
Ms
Kundodyiwa
for the applicant abandoned the claim for hold over damages content
to pursue the eviction only.
In
the result, it is ordered that:
1.
Summary judgment be and is hereby entered in favour of the plaintiff
for the eviction of the respondent and all those claiming occupation
through him from 16 West Estate, Lafarge Cement, Greendale Harare.
2.
Costs of suit.
Hussein
Ranchhold & Co,
applicant's legal practitioners
Mabundu
& Ndlovu Law Chambers,
respondent's legal practitioners
