On 11 March 2010, the plaintiff
issued summons out of this court seeking the eviction of the defendant from
Stand 3667 Township of Gweru Township Lands.
Whilst accepting that the
plaintiff is the registered owner of the property the defendant resisted the
prayer sought by the plaintiff on the basis that she had been invited and
offered accommodation by the plaintiff as part of her employment by the
plaintiff. The defendant also filed a counter claim where she alleged that as a
result of her employment by the plaintiff from 1999-2009 she had accumulated
the sum of $6,274=80 in unpaid wages and that her understanding was that until
such time she was paid her wages in full the plaintiff was precluded, at law,
to evict her as she held a right of lien over the plaintiff's property.
At the joint pre-trial conference
held by the parties on 3 November 2010, the parties narrowed the issues for determination
at trial two basically two simple considerations viz:
(i) Whether or not plaintiff is
entitled to evict the defendant from the property in question, No. 8 Rosemera
Ivene, Gweru.
(ii) Whether or not the High
Court has jurisdiction to determine whether or not the defendant is entitled to
the payment of the alleged outstanding payment of $6,274= in the form of unpaid
wages…..,.
Is the plaintiff entitled to evict the defendant?
The critical facts in this case
were to a large extent common cause, the only notable area of disagreement
being that whether or not the defendant's contract of employment was terminated
in 1999 at the time the plaintiff left for South Africa after she had lost
employment with her erstwhile employer, Blue Ribbon.
Herbert Kutirai, who appeared in
this court on behalf of the plaintiff, duly authorised by a power of attorney
signed on 16 February 2010, was most unhelpful in assisting the court in
determining the status of the defendant at the time the plaintiff left this
country. This was because he came into the picture much later and was not
privileged to witness the parting between the defendant and the plaintiff.
The defendant insisted she was
engaged by the plaintiff long before 1999 at an original wage of $400= which
amount was raised to $800= at the time the plaintiff left the country. In this
regard, she sought to rely on exhibit 1, the inventory of the property she
claimed was left in her custody on 19 April 1999. The document is certainly not
conclusive per se. The exhibit does not say what the defendant attributes it to
mean. It is significant that at the conclusion of the document all the rentals
for the plaintiff's houses are specified and when it came to the cottage which
was occupied by the defendant it indicates:
“Cottage to be advised.”
There are several interpretations
that can be derived from this. It could mean that at the time the plaintiff
left the country she had not yet decided what amount of rentals she wanted from
that cottage. This would be inconsistent with the defendant's position of her
entitlement to occupy this property.
The defendant also sought to
strengthen her alleged employment by the defendant by seeking to garner
evidence which showed she has been carrying out many errands for and on behalf
of the plaintiff. Whilst accepting that that, on its own, tends to raise the
bar for the defendant's claim to have been employed, one must not lose sight of
the fact that the plaintiff and the defendant appeared to have a very strong
relationship given their historical association.
In the court's view, the evidence
tendered did not, on a balance of probabilities, demonstrate that the defendant
was employed by the plaintiff.
The
boxing approach type of presentation of evidence adopted by both counsel did
not assist the court in this regard. The defendant attempted to compute what
she felt represented her alleged outstanding wages.
The
presentation was badly done.
The
closest she could do was to produce exhibit 8 in the form of a photocopy. She
had no clue as to where the original document was. On her own, the defendant
could not explain the number of months she was allegedly not paid by the
plaintiff. In her poorly presented document, wages which were supposed to be
computed in Zimbabwe dollars were presented in United States dollars. This was
at a time when it was a clear violation of both the Exchange Control Act and Regulations
to deal in foreign currency. The person who compiled the figures was not called
to testify or to shed light on what rate was used to arrive at the figure of
the claim. It was just hotchpotch
and that is not the way evidence should be presented to court.
In
the final analysis, it was not possible for the court to ascertain how the
amount of the claim was computed. There was simply no real evidence tabled
before me. What was placed before me was inconclusive and I order absolution
from the instance in so far as the counter claim is concerned.
I must add caution and say that
even if the defendant had been able to prove that she was owed money by the
plaintiff it would not have been competent for her to resist eviction on the basis
of some assumed common law right referred to as a lien. The best course of
action open to her would have been to vacate the premises and fight her case in
the special court that has been created by Parliament, i.e the Labour Court.
As was clearly stated in the Chisipite
School Trust (Pvt) Ltd v Clarke 1999 (2) ZLR 324 case our law does not
recognise any claim of right or right of lien in such circumstances. Even if
the case had been pending at the Labour Court this would not have prevented the
plaintiff from seeking the defendant's eviction in this court because eviction
is not sought in the Labour Court, which, by statute, has no power to grant
such a remedy.
The plaintiff's case for eviction
is watertight and the defendant has no valid defence.
For the above reasons the
plaintiff succeeds and I order as follows:
(i) The defendant is ordered to vacate the
property called Stand 3667 Gweru Township, Gweru on or before 28 February 2011
failing which the Sheriff or his lawful deputy be and is hereby authorised to
effect such an eviction including all those claiming occupation through her.
