African Sun Zimbabwe (Pvt) Ltd v Mlongoni (HC 855 of 2013; HH 332 of 2015) [2015] ZWHHC 332 (31 March 2015)

1 HH 332-15 HC 10 855/13 AFRICAN SUN ZIMBABWE (PVT) LTD versus SIFELANI MLONGONI HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 02 March & 1 April 2015 Opposed Matter Z T Zvobgo, for the applicant Respondent in person MATANDA-MOYO J: On 2 March 2015 I issued the following order in favour of the applicant. 1. That the respondent, her tenants, assignees and all those claiming occupation through her be and is hereby ordered to forthwith vacate the property known as No 3 Dale Crescent, Victoria Falls and surrender vacant possession of the property to the applicant. 2. Failing (a) above the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised, empowered and directed to evict and remove the respondent, her tenants, assignees and all those claiming occupation through her together with all her belongings from number 3 Dale Crescent, Victoria Falls. 3. That there be no order as to costs. I have been requested to give reasons for my order and these are they:- This is an application for vindication. The applicant is an owner of a certain piece of property namely number 3 Dale Crescent, Victoria Falls. The respondent was employed by the applicant at Makasa Sun Casino at Kingdom Hotel, Victoria Falls. As part of her HH 332-15 HC 10 855/13 employment benefits the respondent was entitled to the use and possession of the above property. On 28 July 2011 the respondent was dismissed from work. She approached an arbitrator who found in favour of the respondent and ordered her to return to work. The applicant appealed to the Labour Court which dismissed the application. The applicant appealed to the Supreme Court and such appeal is abandoned in view of Labour Court judgment of 13 June 2012. The respondent resisted the application on the basis that another eviction matter was pending before Victoria Falls Magistrate Court, Case No CC 484/11 refers. The respondent has since withdrawn that matter and the respondent did not persist with that argument. The respondent argued that she is still an employee of the applicant and has a right to reside in the property as long as that employment contract subsisted. It is the applicant who is locking her out. She argued she has a right to occupy the house until her matter is determined by the Supreme Court. It is obvious that the respondent failed to appreciate the implications of the Labour Court judgment of 13 June 2012. In that order the court found that:- “The process commenced at the labour office, which process includes the arbitration award and the appeal is hereby abandoned by both parties.” Such an order had an effect of reversing all the processes that had been undertaken in this matter. Currently in terms of para 9 of the respondent’s opposing papers the parties are involved in quantification of an exit package. They failed to agree on the quantum and such matter is pending before the Labour court case no LC/CRD/MT/03/14 refers. The law as regards to rei vindicatio is settled. Rei vindicatio is a common law remedy available to an owner of a property for its recovery from the possession of another person. Two requirements must be met that is firstly the one claiming must prove ownership of the property and secondly that the property is in possession of another person. The applicant herein has managed to satisfy that test. The above two elements are in fact common cause. The onus shifted to the respondent to justify her occupation. See Changa v Chikadaya & Ors SC 232/10. In Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) Malaba J as he then was had this to say; “The principle on which the action rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who HH 332-15 HC 10 855/13 retains possession of it without his consent. The plaintiff in such a case must allege and prove that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action. Once ownership has been proved its continuation is presumed. The onus is on the defendant to prove a right of retention: Chetty v Naidoo 1974 (3) SA 13 (A) ….” The respondent herein must establish a claim of right in respect of the property sought to be vindicated. In Introduction to Law, C. G Vander Merwe and JE Du Plessis summarises defences available to a claim for vindication as follows:- 1. 2. 3. 4. The defendant had acquired the property by prescription. The third party is the owner. The property was alienated and destroyed or The defendant has a superior contractual right to possess. The respondent relies on a contractual right to occupy and possess the property based on a contract of employment. My problem with this argument is that the contract of employment was terminated and is no longer in existence. As agreed to by the parties the parties are currently embroiled in quantification of damage in lieu of reinstatement. The parties are failing to agree on such damages. They are agreed that reinstatement is no longer an option. The issue of whether the respondent is still an employee of the applicant has been determined. The respondent is no longer an employee of the applicant and has no right to the use of the property as an employment benefit. It is trite that “possession of res should normally be with the owner, no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. right of retention on contractual….” See Jeena v Minister of Lands 1955 (2) SA 380 Ad @ pp 3820. I am satisfied in casu that the respondent is no longer an employee of the applicant and has no right to hold on to the property. I am satisfied that the applicant is entitled to the relief sought as per my order of 2 March 2015. Dube, Manikai & Hwacha, Applicant’s Legal Practitioners