Irvine Nyathi v National Railways of Zimbabwe

### Preamble
1
HB 153/21
HC 737/21
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IRVINE NYATHI

Versus

NATIONAL RAILWAYS OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 14, 22 JUNE 2021 AND 19 AUGUST 2021

Urgent Chamber Application

T Tavengwa, for the applicant

S Chamunorwa, for the respondent

TAKUVA J: 	This is an Urgent Chamber Application for Mandament Van Spolie and Interdict .

Applicant seeks an order in the following terms;

“1.	Respondent be and is hereby ordered to immediately restore applicant to peaceful and undisturbed possession of DW61A Tuli Flats Westgate Security Camp, Bulawayo.

2.	Respondent be and is hereby ordered to immediately cause their employee who now resides at applicant’s house to vacate the premises and handover all keys and locks to the applicant.

3.	The Sheriff of the High Court be and is hereby directed to evict anyone and everyone who does not claim occupation through applicant from DW61A Tuli Flats, Security Camp, Bulawayo.

4.	Respondent be and is hereby interdicted from arbitrarily evicting/depriving applicant of peaceful possession of DW61A Tuli Flats Security Camp, Bulawayo.

5.	Respondent to pay costs on an attorney client scale.”

Background Facts

The applicant is the respondent’s employee.  He is employed as a Shunter, a position he has held for the past 13 years.  Upon being engaged or soon thereafter applicant was offered accommodation by the respondent being flat No. DW61A Tuli Flats West Gate Security Camp, Bulawayo.  The parties entered into a Lease Agreement thereby formalising the relationship of landlord and tenant.  The applicant pays monthly rentals to the respondent for occupying the flat with his wife and four children.

On 26th May 2021, applicant was notified of the need to share accommodation with another person whose identity was unknown to him.  The notice from the Acting Security Officer was couched in the following terms;

“RE: Sharing of Accommodation: 3 June 2021

Due to the ongoing recruitment of Security Personnel in the NRZ for year 2021, demand for accommodation has become unbearable, hence you are advised to make available two rooms to share.

The rooms must be available by 3 June 2021.” (my emphasis).

According to the applicant, he protested against this arrangement as it was not conducive to the living arrangements of his family.  Further, this was a breach of the Lease Agreement he had with the respondent.  Lastly, he refused to comply because the notice period was unreasonably short.  Applicant further alleged that on 6th June 2021 at around 2000 hours whilst he was absent from home eleven (11) men who are all respondent’s employees stormed into his flat, harassed his children and removed property that was in his children’s bedroom and put property belonging to a person he does not know.  Thereafter they changed the locks and locked that room.

After learning of these events the applicant phoned the Area Security Officer one T. Sibanda and he was informed that he must make available two rooms to this recruit.  He also approached a representative of Zimbabwe Amalgamated Railway Union who phoned the Acting General Manager.  The General Manager directed that the directive be complied with.

Applicant claims to have been in peaceful possession of the flat for the past ten (10) years and that respondent has disturbed his peaceful possession of the property.  Applicant attached a copy of his payslip as proof that respondent deducts monthly rentals from applicant’s salary.  Further, applicant believes that he has exhausted the domestic remedies available to him in that he first referred the issue to the Area Security Officer and the Acting General Manager for resolution without success.

The respondent opposed the application on the following grounds;

1.	IN LIMINE

(a)	the application is fatally defective for want of compliance with the proviso to rule 241.  Since the application was on notice to the respondent it ought therefore to have been in Form 29 with appropriate modifications.  Instead the application served on the respondent was in Form 29B which did not contain a list of rights as to what respondent was required to do upon receiving the application and in particular the dies induciae.

This prejudiced the respondent in the prosecution of its matter as it could not file its notice of opposition timeously.

(b)	Further, it was contended that the application is rendered fatally defective by the fact that the Chamber Application is not accompanied by a Draft Provisional Order in Form 29C as required by Order 32 rule 247 of the High Court Rules 1971.

(c)	Applicant ought to have proceeded by way of action proceedings since there exists irreconcilable disputes of fact which render application proceedings improper.

(d)	Applicant is unable to establish a prima facie case in casu because his application is based on hearsay evidence since he was not present on the day in question.

(e)	This court does not have jurisdiction to entertain a labour case as was held by the Supreme Court in Stanley Nhari v Robert G. Mugabe and Ors SC 161-20.

This matter relates to employer accommodation issued to the applicant in terms of the employer-employee relationship.  Applicant should have resorted to the Grievance Procedure first.

(2)	On the merits, the respondent contended that there has been no violation of applicant’s rights in that the occupation of railway accommodation is always subject to the respondent’s Salaried and Wages Staff General Regulations.  Further, it was argued that the applicant gave his consent to the occupation of the room through “the young lady who allowed the Security Guards into the flat and pointed out the room” where they put Chivangu’s property.

Respondent’s position is captured in paragraph 19.4 of its Opposing Affidavit wherein it states;

“19.4 	The issue of sharing accommodation is not perculia to the applicant alone.  The respondent recruited a number of Security Guards of which a significant number will be resident in Bulawayo and housed at Westgate Security Camp.  Those who were occupying flats in the camp and were previously not sharing accommodation have been asked to make room for the Security Guards and a significant number has acceded to this request.”  Clearly, it is against this backdrop of necessity that respondent launches its defence.

I now deal with the points in limine seriatum;

The first point in limine relating to non-compliance with rule 241 attacks the use by applicant of Form 29B instead of Form 29.  Despite the fact that the courts have expressed themselves on numerous occasions that they prefer “substance over form” this point continues to be raised.  The position is that for such a departure of the rules to be fatal, the applicant would have used a Form that is totally alien to the rules of this court.  Where like in casu an applicant used Form 29B instead of Form 29 it cannot be a proper ground for dismissal of the application.  See Rule 222(9)(c) and Nyarota v ANZ Ltd HH 591-15.

Accordingly, this point in limine has no merit and is hereby dismissed.

Equally without merit is the second point in limine which seeks to have the application dismissed on the basis that it is fatally defective for failure to comply with Order 32 rule 247 of this court’s rules.  In the present case, the order sought is one of spoliation.  Such an order is final and cannot be sought on an interim basis – see Chiwenga v Mubaiwa HC 86/20.  Therefore, there was no need in casu to attach a Provisional Order.  In the result, the point in limine is hereby dismissed.

The third point in limine is that there are material disputes of fact which are incapable of resolution on the papers.  In casu, the only material dispute is whether or not respondent allowed its employees to occupy applicant’s flat without his consent.

The respondent argued quite forcefully that its employees entered the flat with the consent of a young lady they found at the flat.  It was contended that applicant’s failure to file an affidavit from this “young lady” is fatal to his case.  I disagree for the simple reason that a close and careful reading of Rabson Chivangu’s Supporting Affidavit proves without any doubt that there is no material dispute of fact here which cannot be resolved on paper – See Taylor v Taylor SC 40-14.  According to Chivangu, he met applicant on 5 June 2021 at 9:00 am and the latter allowed him to use “one room” which he was shown and he left.  The following morning on the 6th June 2021 he presented himself at the flat and spoke to the applicant who said “he had had an afterthought and that he needed to discuss this matter with my superiors.”  Chivangu then left for a meeting.  At around 11 am on the 6th June 2021, he in the company of three Security Guards went back to the flat and found applicant absent.  They then found a young lady who granted Chivangu permission to occupy the room saying “that is the room you were shown.”  He then placed his bed inside the room and locked it.

Later that evening he returned to the flat but he was denied entry by applicant’s wife on the grounds that he should wait for the return of the applicant.  Chivangu returned on 13 June 2021 intending to “occupy” the room but applicant denied him access on the ground that he had filed this application.

From the above I find that Chivangu occupied the applicant’s flat without the latter’s consent.  He says so himself in paragraph 9 of his Supporting Affidavit.  Further, at best, Chivangu’s evidence shows that applicant revoked his consent granted on 5 June 2021.  This revocation was expressly stated and was understood by Chivangu to be exactly that.  Surely, it cannot be seriously contended that this “young lady” whose identity and status is unknown granted Chivangu permission to occupy the flat.

Applicant’s contention that he received the letter notifying him of the need to “share” accommodation on 26th May 2021 and he “protested” is corroborated by Chivangu’s evidence.  Respondent on its part argued that there was no “protest” in that the applicant did not raise a “grievance in terms of the Code of Conduct.”  Therefore, in the respondent’s eyes anything done by applicant outside the provisions of the Code of Conduct is inmaterial and inconsequential – see paragraphs 17.1, 17.2 and 23 of respondent’s Opposing Affidavit.  There are no irreconcilable disputes of fact in casu.

In the result, the third point in limine is hereby dismissed.

The fourth point in limine is that applicant has failed to establish a prima facie case in that his case is based on purely hearsay evidence.  Respondent’s contention is that the requirements of the admissibility of hearsay evidence in civil matters have not ben met in that the applicant has not divulged the source of the information and the grounds upon which he believed the information.

This point in limine is devoid of merit for the reason that it is trite law that in urgent matters hearsay evidence is admissible as long as the following requisites have been met;

The deponent to the Founding Affidavit must sufficiently disclose the source of the information or statement he gives.

The deponent to the affidavit must state in his sworn statement that he believes those claims to be true.  The grounds of his belief in the truthfulness of the evidence sought to be introduced must be disclosed in his sworn statement.

The evidence sought to be admitted must be about a statement made orally or in writing.

The evidence must be such that it would have been admissible if the person responsible for it were to be present to give the evidence.  See Glenwood Heavy Equipment (Pvt) Ltd v Hwange Colliery Co. Ltd and Ors HH 664-16.  See also section 27(1) of the Civil Evidence Act (Chapter 8:01).

In casu the above requirements have been met in that the applicant discloses in paragraph 6 of his Founding Affidavit that the source of the information is his children and his wife.  Further, applicant states in the same Affidavit that the facts were verified by his wife and the children.  The evidence was given to him orally.  Finally, the evidence of the children and their mother would have been readily available had they testified in person.  Paragraph 6 of the applicant’s Founding Affidavit is the only one that contains hearsay evidence which in terms of section 27(1) of the Civil Evidence Act is admissible.  In any event, this is not the crux of the matter because Chivangu does not say when he placed his bed in one of applicant’s rooms applicant was present.  The rest of the applicant’s affidavit shows there was no consent.

Accordingly, this point in limine is dismissed.

The fifth point in limine is that this court lacks jurisdiction to deal with this matter.  The contention was that this is a purely labour matter arising from a contract of employment.  As authority for this proposition, respondent cited the case of Stanley Nhari v (1) Robert Gabriel Mugabe (2) Dr Grace Mugabe (3) Gushungo Dairy Holdings (Pvt) Ltd SC 161-20 where it was held inter alia that the High Court has no jurisdiction to determine unfair labour practices which, in terms of the Labour Act, should more properly be handled by Labour Officers appointed in terms of that Act.

In my view Nhari’s case is distinguishable in that his claims arose from a purely labour dispute while in casu, applicant and respondent’s relationship is one of employer-employee and landlord and tenant.  While Nhari claimed “damages” arising from alleged “unfair labour practices”, applicant’s remedy is one for a spoliation order which is beyond the Labour Court’s jurisdiction.  For these reasons this point in limine is dismissed for lack of merit.

The sixth point in limine is that applicant should have exhausted domestic remedies provided for in the respondent’s Grievance Procedure.  This procedure is not satisfactory in that it does not provide for a relief of spoliation as a matter of urgency.  In any event applicant approached the Area Security Officer and the General Manager who both informed him that what had been done by respondent’s employees was correct – See Founding Affidavit in paragraphs 8 and 13.  More importantly, these averments have not ben denied by respondent.  Surely there would have been no need to follow the Grievance Procedure after the General Manager sanctioned or approved what had been done.  This point has no merit and it is hereby dismissed.

The final point in limine raised is that there is no valid Certificate of Urgency in this case in that the Certificate of Urgency was prepared before the Founding Affidavit was filed.  The contention here is that since the Certificate of Urgency was filed on the 7th of June 2021 while the Founding Affidavit was filed on 8 June 2021, there is no compliance with rule 244 of this Court’s rules.

The respondent cited the case of (1) Oliver Mandishona Chidawu (2) Broadway Investments (Pvt) Ltd (3) Danoct Investments (Pty) Ltd (4) Dannov Investments (Pty) Ltd v Jayesh Shah (2) T.N Asset Management (Pvt) Ltd (3) ISB Securities (Pvt) Ltd (4) Zimbabwe Stock Exchange (5) Conserve (Pvt) Ltd SC 12-13 for the proposition that where a Certificate of Urgency is defective there will be no Urgent Application before the court.  In that case, the Certificate of Urgency was defective because the lawyer certifying the matter as urgent had not applied her mind to the patent and pertinent facts placed before the court by the parties.  The court then found that the application was not properly before it by virtue of the defective Certificate of Urgency.

In the present matter while it appears that the Certificate was prepared before the Founding Affidavit, the contents and reasons given in the Certificate of Urgency demonstrate that the lawyer certifying the matter as urgent had read all the papers including the Founding Affidavit.  In that regard I find Mr Tavengwa’s submission that the Founding Affidavit was prepared before the Certificate of Urgency to be the correct position.  I find therefore that the Certificate of Urgency in casu is valid.

Considering the merits, it is necessary to examine the legal position regarding the protection of possession.  Silberbeng and Schoeman The Law of Property 2nd edition at page 135 states;

“8.1 SPOLIATION

In the final analysis the protection of possession is part and parcel of the protection of the peace in a community, which could not be maintained if every person who asserts that he has a real right to a particular thing which is in another person’s possession would be entitled to resort to self-help.  Therefore, a possessor who has been deprived or “despoiled” of his possession by unlawful means (whether it be by force, fraud, stealth or other means) may apply to court by mandament van spolie for an order directing the spoliator to return the thing to him immediately.  In such proceedings the court will refuse to consider any claim by the spoliator that he has a better title to the possession of the thing in question.  This means that the applicant in spoliation proceedings need not even allege that he has a ius possidendi; spoliatus ante omnia restuendus est.  All that the applicant must prove is that he was in peaceful and undisturbed possession at the time of the alleged spoliation and that he was illicitly ousted from such possession.”

The onus is on the applicant to prove this on a balance of probabilities.  It is not sufficient to make out only a prima facie case because,

“although a spoliation order does not decide what, apart from possession the rights of the parties to the property spoliated were before the act of spoliation and merely orders that the status quo be restored, it is to that extent a final order …” (my underlining)

The requirements for a spoliation order are twofold.  In Botha and Anor v Barrett 1996 (2) ZLR 73 (s) at 78C, these requirements were stated as follows:

“(a)	that the applicant was in peaceful and undisturbed possession of the property and

(b)	that the respondent deprived him of the possession forcibly or wrongfully against his consent.”

According to Silberberg & Schoeman supra at page 138, “a respondent may as a general rule, raise the following defences in spoliation proceedings;

applicant was not in the peaceful and undisturbed possession of the thing in question at the time of the deprivation;

respondent has not committed spoliation, with regards to the first defence, the respondent may in an appropriate case prove that the applicant did not exercise the measure of physical control which was necessary to acquire or retain possession or that the intention to derive a benefit from holding the thing was absent.  Regarding the second defence, the respondent may, for instance, prove that his act of dispossessing the applicant was in fact not unlawful in that it amounted to counter spoliation, was justified in terms of some or other statutory enactment or took place with the consent of the applicant.”

In casu the respondent argued that it did not commit spoliation as its employee took possession with the applicant’s consent.  On the evidence, it is clear that the applicant did not give his consent to the occupation of the room.  Chivangu’s Supporting Affidavit indicates that he was expressly told by the applicant that occupation of the room was not authorised.  Despite this clear expression of applicant’s unwillingness to allow Chivangu to occupy the room, Chivangu took his property there accompanied by three male Security Guards.

Further according to respondent this group was “permitted” to occupy the room by an unidentified “young lady” they found at the flat.  Surely this cannot be taken seriously if one takes into account that the group did not establish her identity, status or relationship to the applicant and her age.  It appears to me that the room was occupied on the grounds that it belongs to the respondent and that applicant had been instructed to share it.  This, contrary to the fact that applicant is respondent’s tenant in terms of a written Lease Agreement.  At the time of the deprivation, applicant had paid rent for the whole flat.

I am satisfied that the respondent committed spoliation by directing its employee to occupy a portion of a flat lawfully occupied by the applicant and his family.  Respondent’s conduct is unlawful.

Accordingly, it is ordered that:

1.	Respondent be and is hereby ordered to immediately restore applicant to peaceful and undisturbed possession of DW61A Tuli Flats Westgate Security Camp Bulawayo.

2.	Respondent be and is hereby ordered to immediately cause their employee who now resides at applicant’s house to vacate the premises and handover all keys and locks to the applicant.

3.	The Sheriff of the High Court be and is hereby directed to evict anyone and everyone who does not claim occupation through applicant from DW61A Tuli Flats, Security Camp, Bulawayo.

4.	Respondent be and is hereby interdicted from arbitrarily evicting/depriving applicant of peaceful possession of DW61A Tuli Flats Security Camp, Bulawayo.

5.	Respondent to pay costs on the ordinary scale.

Mutuso, Taruvinga & Mhiribidi, applicant’s legal practitioners

Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners