Urgent
Chamber Application
MUTEMA
J:
The
dispute between the parties is steeped in the realm of employment
law.
The
bare bones are that applicant who is the largest shareholder in
second respondent with a 19.42% shareholding, used to be employed by
second respondent as the managing director - (This in fact
constitutes the main bone of contention between the parties –
respondents aver that applicant verbally resigned the post in early
2010 as can be gleaned from minutes of a meeting held on 3 May, 2010
chaired by the applicant at which he introduced doctor Saungweme who
took over from him as the new managing director, while applicant
denies resigning averring that he only relinguished some managing
director's duties to Saungweme while he was engaged in a fund
raising mission aimed at expanding the hospital and Saungweme was
merely chair warmer for him).
When
applicant went away he vacated the office taking with him his
personal belongings therefrom.
Saungweme
occupied the office in his new capacity as managing director.
In
about March, 2011 applicant returned to the institution claiming that
he had come back to reclaim his managing director's post, forced
himself into the office and locked it off from everyone except
himself thereby despoiling the incumbent managing director and
started issuing orders and instructions to staff and threatened to
assault or injure anyone who tried to stop him or make him see
reason.
All
attempts to make him see sense failed prompting first respondent to
issue a memo on 20 September 2011 to all stakeholders restating the
correct position regarding applicant's status vis-a-vis the
managing director post of second respondent.
This
did not help matters and on 24 September 2011 respondents installed
new locks and put bars to the entrance of the managing director's
office thereby denying applicant access to that office.
On
26 September, 2011 applicant issued summons against second respondent
in case number HC9444/11 claiming inter alia $50,000.00 which he
claimed was owed to him.
On
29 September, 2011 applicant, filed a court application against both
respondents in case number HC9592/11 seeking inter alia, a
declaratory order that he is the lawful managing director of second
respondent.
The
two suites are being opposed.
On
30 September, 2011 applicant then lodged this application via the
chamber book for a provisional order whose relief is couched in the
following terms:
“PROVISIONAL
ORDER
(a)
That the first respondent be and is hereby ordered to return
possession of the applicant's office situated at the second
respondent's premises.
(b)
That pending the determination of the matter in case number HC9592/11
the first respondent is ordered to ensure that the possession by the
applicant of his office situated at second respondent's premises is
not violated.
(c)
The respondents are to pay the costs of this application at an
attorney–client scale wholly (sic) and severally the one paying to
absolve the other.
INTERIM
ORDER GRANTED
Pending
the determination of this matter the first applicant (sic) is granted
the following relief:
(a)
The second respondent is ordered to restore applicant's possession
of office situated at first respondent's premises (sic).
(b)
Should the respondent not restore such possession within twenty–four
hours of this order, the Deputy Sheriff or any attested member of the
Zimbabwe Republic Police is hereby authorised to do all is necessary
to ensure that such possession is restored.”
At
the hearing Mr Chihambakwe raised two main preliminary issues, They
are these:
1.
The dispute is a labour issue and as such it should have been
directed to its proper forum which is the Labour Court.
Section
89 of the Labour Act confers virtually as wide a jurisdiction as the
High Court, so he submitted. It is one of the requirements for an
interdict that there be no other satisfactory remedy but in casu
there is a remedy in the Labour Court.
2.
The applicant makes a serious allegation in paragraph 21 of his
Founding Affidavit that he was in peaceful and undisturbed possession
of the office prior to the actions of the first respondent and her
subordinates.
There
was no such peaceful and undisturbed possession enjoyed by the
applicant.
In
fact it was the current managing director who enjoyed peaceful and
undisturbed possession prior to the applicant's actions.
I
do not deem it fit to delve into the first point in limine that was
raised by Mr Chihambakwe, viz that the dispute should have been
referred to the Labour Court because it is a labour issue suffice it
to say that that point would only be relevant either at confirmation
or discharge of the provisional order or at the hearing of the
application in case number HC9592/11.
It
is then that the issue would fall for determination whether the
matter is a labour dispute falling exclusively within the purview of
section 89(1) of the Labour Act and if it does then subsection (6)
would oust this Court's jurisdiction.
Regarding
the second point in limine, I am constrained to uphold it. The reason
therefore is simple and straightforward.
Applicant
alleges was despoiled of the office as well as his personal
belongings lodged therein which he uses for his private life and
business. Respondents have offered that applicant is at liberty at
his earliest convenience, to come and collect his personal items.
I
have no reason to doubt the sincerity of that offer.
However,
as regards the office that is a different kettle of fish.
While
applicant alleges spoliation respondents papers clearly show that it
is him who is the spoliator.
He
had been away for some 8 months and Saungweme was in lawful /and
undisturbed possession of that office. He was denied occupation of
the office but he locked it to the exclusion of everyone except
himself.
This,
despite the exitant dispute between the parties, amounts, on the
applicant's part, to self-help.
I
did not hear applicant to dispute respondents version either on paper
or in oral submissions, of how he ended up reoccupying the office. He
therefore did not come to Court with clean hands.
He
is the spoliator.
To
allow him audience would be tantamount to sanctioning unlawfulness.
On
the basis of the second preliminary point raised by the respondents,
the application is hereby dismissed with costs.
Mambosasa
Legal Practitioners, applicant's legal practitioners
Chihambakwe,
Mutizwa & Partners, respondents legal practitioners
