Freda Rebecca Gold Mine Limited v Tendai Mataswa

### Preamble
1
HH 455-25
HCH 7821/23
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REPORTABLE

FREDA REBECCA GOLD MINE LIMITED

versus

TENDAI MATASWA

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 10, 13, 17, 26 February 2025, & 30 July 2025

Civil Trial

R Mabwe with R. A. Ndlovu, for the plaintiff

H S Tsara, for the defendant.

MUNANGATI-MANONGWA J: Upon receiving instructions from a client a legal practitioner is duty bound both professionally and ethically to advise a litigant on a course which is legally sound. A legal practitioner cannot hide behind of,and claim that they are acting on client ‘s instructions when such instructions pertain to legally untenable situations and positions. Blind allegiance to clients’ instructions is unacceptable given that the legal practitioner is supposed to guide a client since he or she is the one schooled in the art of law and its dictates. Most pertinent a legal practitioner is an officer of the court hence cannot knowingly advance and present claims or defences which are bereft of legal grounding. This case is a clear example where defences raised by the defendant show that he did not receive proper legal guidance and as a result none of his defences could be sustained as the court found some without merit and others without any legal basis whatsoever.

The plaintiff herein issued summons claiming ejectment of the defendant and all those claiming occupation through him from the premises known as Number 1 New Oval, Bindura (“the property”). Further, the plaintiff claims costs against the defendant on a higher scale.

The plaintiff is Freda Rebecca Gold Mine Limited the plaintiff’s previous employer,  a mining company with limited liability duly incorporated in terms of the laws of Zimbabwe.

The defendant was employed by the plaintiff as a Finance Controller until his employment contract was terminated sometime in March 2022.

Facts

The plaintiff as part of its employees’ benefits extended the privilege of providing its employees with accommodation. Despite the employee having been engaged earlier, the parties concluded a contract of employment in 2011 and later signed a lease agreement in 2014. The lease  provided that during the subsistence of the defendant’s employment contract, he would occupy the property in issue. The dispute emanates from an offer extended by the plaintiff to its employees who were sitting tenants to buy housing units they occupied. The offer was extended through a Housing Memorandum of 2003. The scheme was to be initiated through two phases, that is Phase 1 and Phase 2.  Housing units in Phase 1 were disposed of to employees who were sitting tenants who fell under that phase. Housing units in Phase 2 were not ready for disposition since initiation of the process was to commence after incorporation into Bindura Municipality. Further, the housing memorandum was clear that those who were interested in purchasing the houses they were living in had to accept the offer by 29 February 2004. The offer to purchase was to be accepted through the Housing Committee.

Sometime in 2022, the defendant’s contract of employment terminated when the defendant was dismissed by the plaintiff. Simultaneously, the lease agreement terminated upon termination of the contract of employment. As a result of the termination, the applicant made several requests that the defendant vacate the property but the defendant has refused or neglected to vacate. This necessitated the applicant to file a claim for eviction on the basis that the defendant’s legal right to occupy the property lapsed upon termination of the contract of employment and the lease agreement. The plaintiff seeks vacant possession of the property to allocate it to its employees.

The defendant refuses to vacate the premises alleging he has a right to occupation. In his plea he raises the following grounds for resisting eviction:

He claims protection under the doctrine of legitimate expectation purportedly stemming from the 2003 Housing Memorandum wherein plaintiff offered to dispose off the housing units to its employees who were sitting tenants.

That he ceased to be a tenant and assumed ownership pursuant to the 2003 Memorandum on housing.

That the termination of the contract of employment the plaintiff is basing its claim on was unlawful and is currently being challenged before an arbitrator. Thus, the defendant remains an employee and is entitled to all his benefits including housing.

That the property in question no longer belongs to the plaintiff but to Bindura Estates after its removal from the plaintiff’s mining lease.

lease agreement is invalid as the lease agreement was signed under duress

Plaintiff’s Case

The plaintiff led evidence of Takunda Timbe. He testified that he is currently employed as the company secretary, but he was previously employed by the plaintiff as its legal officer.

Mr Timbe testified that despite the defendant having been employed since the 1990s, another contract of employment was signed between the parties on 1 October 2011 which terminated in 2022. The defendant’s occupation of the property was part of his employment benefits and was also based on the lease agreement signed in 2014. He gave evidence that Clause 10 of the employment contract states that an employee is entitled to a house to use depending on availability. He stated that the defendant was dismissed in 2022. He referred to a letter dated 21 June 2022 written by the Human Resources Manager to the plaintiff and clarified that it was an acknowledgement by the company that the employer-employee relationship between the parties had ended after the defendant rejected the company’s offer to re-deploy him. He testified that the defendant was not paying rentals for his current occupation of the property, a position which was confirmed by the defendant.

He denied that the defendant signed the lease under duress as there is no internal grievance that the defendant ever raised alleging such. He testified that the defendant should vacate the premises because his right of occupation terminated upon termination of the contract of employment and lease agreement. He made reference to Clause 1:1 of the contract to that effect. He testified that the defendant’s defence that Bindura Estates owns the property cannot sustain him since the plaintiff is a successor in title to Bindura Estates and the houses are within the plaintiff’s mining lease issued in 1996. He gave the history of how the property changed hands up to the plaintiffs’ time. It was his evidence that the fact that the property may not be in the plaintiff’s name is immaterial.

The witness maintained that the memo issued on 2 December 2003 explained the process of how the plaintiff intended to sale its house to its employees and it clarified that the houses in phase 2 were not yet ready for disposal because of their pending incorporation into Bindura Municipality. He testified that if the defendant’s expectation to buy the house in Phase 2 is centered on the success of Phase 1’s project, his expectation would be wrong.

Under cross examination he maintained, that the defendant’s legitimate expectation that the plaintiff will fulfill its promise and dispose of the house to him is misplaced. He maintained that the defendant’s legitimate expectation cannot stem from the outcome of the case between Freda Rebecca v Moses Uragu & Ors HH 379-24 where the defendant’s counterparts won since the judgment was still under contestation before the Supreme Court.

He wrapped up his evidence by stating that since the termination of the defendant’s employment, the defendant has not been paying rentals to date, continues occupying the premises in issue and last reported for work in 2022. In that regard the plaintiff’s claim should be upheld as the defendant has no legal basis to remain in occupation of the premises in issue.

The witness was composed gave his evidence well and was not shaken under cross examination. The court has no reason to disbelieve his evidence.

Defendant’s case

The defendant led evidence of two witnesses. The first witness was the defendant himself. In giving his evidence, he testified that, he was employed by the plaintiff from 1 April 1993 until termination of his employment. He disputes the plaintiff’s claim to evict him. He contests that in December 2003 a Memorandum was released to all employees advising them that the process of disposing of housing units had been finalized and sitting tenants had the right to purchase the houses they occupied. He clarified that since some houses did not have title deeds, the process was split into phase 1 and phase 2. An evaluation was done for phase 1and the houses were ready to be sold by 1 December 2003 yet for phase 2 the houses were not ready for disposal due to certain compliance issues.

He maintained that the 2003 offer to sell houses to employees was never reversed hence he had a legitimate expectation that he was to purchase the house he occupied as a sitting tenant. He testified that his expectation could not be overridden by termination of his lease agreement which simultaneously terminated when he was dismissed since his verbal dismissal was unlawful. He claimed that he owns the house after accepting the offer and fulfilling the requirements thereof as per the 2003 Housing Memorandum despite the title deeds belonging to Bindura Estates. He testified that since the property has no title deeds, his claim is based on his acceptance of the offer through the Housing Committee Members on 2 December 2003 when he informed them of such. He clarified that the Disposal of Mine Houses Scheme offered the housing units on a rent to buy scheme. He stated that his willingness to purchase the house was shown by his willingness to continue paying rentals after the offer. He conceded that he stopped paying the rentals on termination of his employment.

The defendant testified that he was forced to sign a lease agreement in 2014 under fear of being evicted as the lease was brought in to erode the offer he had received in the 2003 Memorandum for the sale of houses. It was his testimony that he feared losing his job if he refused to sign the lease agreement. He referred to an alleged predicament of dismissal that other employees had suffered when they refused to sign the contracts and referred to the case of Mapondera and 55 Ors v Freda Rebecca Gold Mine Holdings Limited and Jucha Mwanza & 22 Ors v Freda Rebecca Mine.

Upon being cross examined he admitted signing the lease agreement and stated that the plaintiff is the landlord and he is the tenant. He stated  that he continued paying rent despite owning the house because it was a must that rentals be paid. He testified that Bindura Estates is the owner of the housing units, and the plaintiff is the one who gave him the offer, thus the plaintiff cannot evict him. He disputed that his employment relationship with the applicant terminated given the pending matter where he is challenging his dismissal through the Labour Tribunal. He testified that the plaintiff has no right to evict him since it is not the owner of the house he is occupying. Equally, he maintained that the plaintiff cannot evict him on the basis of a lease agreement which he signed under duress.

This witness had difficulty in answering questions and got mixed up on the whole concept of ownership at times indicating that he is the owner of the property and in some instances stating that Bindura Estates owns the property and at times stating  that he is a tenant who was on a rent-to-buy scheme.

The second witness was Michael Asili who was the defendant’s workmate. He was employed by the plaintiff from 1997 to 2007 as an Assistant Diesel Engine Plant Fitter. He testified that the plaintiff has no right to evict the defendant because the houses belong to Bindura Estates. He testified that the defendant was offered the house under the 2003 Housing Memorandum after the plaintiff decided to sell the housing units to its employees. He went to testify that in 2000, the plaintiff applied for a subdivision permit for phase 2 and a mining decree. He clarified in his testimony that the mining decree was meant to remove the houses from the mining lease and this was gazetted on 13 December 2002 leading to the Housing Memorandum of 2003. He stated that the conditions of the permit were delayed. He clarified that those who were not interested in the housing scheme were told to vacate the houses. He testified that since beneficiaries of Phase 1 were given title deeds, there was nothing that exempt beneficiaries of Phase 2 to the same thus, the defendant should be entitled to the house.

He gave a history of the changes in disposal of the housing units by testifying that when the Board of Ashanti Gold fields dissolved and sold its shares to Mwana Africa they agreed they were to stick to the agreement in existence but in 2005 they began to make some changes. He maintained that the plaintiff is deriving its powers to evict the defendant from the lease agreement signed by the defendant in 2014. He testified that the plaintiff was not the owner but was simply leasing land from Bindura Estates.

During cross examination, upon being asked whether he was privy to the terms and conditions the defendant was employed under, he testified that he had no knowledge of such terms and conditions and still remains not be privy to the arrangement that the defendant and the plaintiff had. He maintained that he had knowledge of the defendant being a beneficiary of the house as the issue of the houses affected everyone.

The court finds that nothing turns on this witness’ evidence apart from confirming the existence of the 2003 memorandum and how the offer extended to every employee. He was not aware of the defendant’s conditions of service or arrangements with plaintiff.

Issues for determination

Whilst four issues were raised at pre-trial conference stage, the issues were narrowed down at trial as follows:

Whether or not the plaintiff has the right to evict the defendant?

Whether the defendant had a legitimate expectation which entitles him to remain in occupation of the property?

Whether or not the plaintiff has the right to evict the defendant?

In its claim the plaintiff makes it clear that it relies on the termination of a lease agreement and the ended employment contract which provided the terms under which the defendant occupied the premises in issue. Thus, its claim is not based on rei vindicatio which is grounded on ownership but is rather a possessory claim. It is not in dispute that the plaintiff and the defendant signed a lease agreement where the plaintiff is the lessor. Once it is established that a lease agreement existed between the parties, it has to be established further whether the lease agreement is valid. The validity of the lease agreement has been challenged by the defendant on the ground that he signed it under duress  fearing  that his contract of employment may be terminated.

Where one alleges that he signed a document under duress, he must show that the threat was inevitable and could only be avoided by agreeing to sign the contract or agreement. In International Export Trading Company Zimbabwe (Pvt) Ltd v Muzambani HH 195-17 Dube J (as she then was) held as follows:

“….. a litigant wishing to rely on duress and undue influence as a ground for resisting enforcement of an AOD must do more than just allege that he was forced to sign the AOD. He must convince the court that the pressure applied upon him to coerce him to sign was so extreme or severe so as to negative voluntariness and induced him to sign the document without his free will. The influence averted to must be shown to be unscrupulous and that it weakened his power to resist. Further, that he would ordinarily not agree to the signing. He must show that he protested and took steps to avoid the forced action or contract. The threats alleged must be proved to be the motivation for the signing and the threat must be of some imminent or an inevitable evil. The defendant’s fear must be reasonable.”

It is settled in our law that in civil proceedings if a party makes a positive allegation, the party bears the burden to prove such allegation (see Astra Industries v Chamburuka SC 258-11). The defence of duress cannot sustain in the absence of full particulars of the apprehended harm. A mere statement by the defendant that he signed out of fear because other employees who refused to sign contracts and not specifically lease agreements were suspended is not enough. This, further does not show that the defendant was coerced to sign, that there was inevitable evil and that the defendant took steps to avoid the alleged forced action. Considering the dictum in Muzambani case supra, raising duress in these proceedings as a defence after more than a decade has passed since the time the defendant signed the lease leads to the conclusion that no such duress was ever exerted on the defendant otherwise he would have raised alarm earlier and acted rather than wait for more than 10 years. Such conduct cannot be consistent with someone who has been coerced. Further that there is no counter-claim for annulment of the agreement buttresses the fact that this defence is one hurriedly crafted to avoid eviction. On that basis, the court finds that the defendant voluntarily signed the lease agreement and that no undue influence was exerted upon him. In that regard the lessee agreement is therefore valid.

Turning on whether the applicant can evict the defendant, it is trite that where parties are bound by a lease agreement, the lessee has no right to challenge the right or title of the lessor. The right of the lessor to evict the lessee stems from the terms of the lease agreement itself. It is common knowledge that once a lease agreement terminates, the right that ties the lessee to the property extinguishes. Hence the claim by the defendant that the property belongs to Bindura Estates and not to the plaintiff has no legal bearing. In Zuva Petroleum Limited v S Chirenje HH 166/16, I reiterated that a lessor has the right to evict the lessee despite the property not being owned by the lessor. In Kala Singh v Germiston Municipality 1912 TPD 155 at 155-160 it was humorously and succinctly put that “…as between lessor and lessee it does not lie in the mouth of the lessee to question the title of his landlord.” It is therefore clear from the above authorities among numerous others, that the plaintiff as the recognized lessor has the right to evict the defendant upon termination of the lease agreement. The argument by the defendant that the property is owned by Bindura Estates is therefore not a valid defence to the plaintiff’s claim.

Whether the defendant had a legitimate expectation which entitles him to the right to remain in occupation of the property?

The doctrine of legitimate expectation has been defined to refer to the reasonable belief held by an individual that an employer (as in this case) will act in a certain way, based on a representation or established practice. This expectation is protected under the law, and the employer cannot disregard it when making decisions that affect the individual, unless there are justifiable reasons The court will analyze the doctrine as it applies to lease agreements with an option to buy. Despite the facts being distinct from the present case, the doctrine of legitimate expectation was clarified in MSF Belgium v Nhopi & Ors SC 11-19.  The Court held that a mere invitation does not guarantee engagement.  In Health Professions Council v McGown 1994 (2) ZLR 329 (S) it was held that a legitimate expectation may arise from the existence of regular practice. In casu, the defendant could have a legitimate expectation if:

There was a promise or offer made by the employer that all sitting tenants would purchase the house they lived in.

The defendant believed that he met all the requirements and conditions of the promise and offer and would be given the house.

The legitimate expectation is reasonable.

The onus of proving a legitimate expectation rests with the defendant and mere expectation without engagement and meeting the stated requirements will not suffice.

It is common cause that the plaintiff intended to dispose of housing units to its employees who were sitting tenants as per the 2003 Housing Memorandum. The same policy therefore went on to clarify that the houses in Phase 2 where the defendant’s property falls under were not yet ready for disposal pending incorporation into Bindura Municipality. It specifically says

“The houses in Phase 2 are in the Mining Lease therefore are not yet ready for disposal because of the pending incorporation into Bindura Municipality. As soon as the incorporation is complete Phase 2 will be initiated.”

That being so it cannot be said that there was an offer to purchase houses in phase 2 given that the memorandum stated that the houses were not yet ready for disposal. It being so there was nothing to accept at that moment and defendant can not be heard to say that he accepted the offer at that juncture.

Even if it were to be considered that there was a valid offer for purchase of houses in Phase 2,, the policy was clear that those who were interested in purchasing the houses they were living in had to accept the offer by 29 February 2004 and see Committee Members to finalize the purchase. It was the defendant’s evidence that he verbally accepted the offer in the absence of any documentation or evidence from at least the committee members in support of his assertion. It is the defendant’s evidence that the offer was to be accepted verbally and one wonders whether disposal of such a valuable asset could be done verbally in the absence of any paper trail in facilitating such an offer. The defendant’s assertion is therefore not sufficient to assist the court in finding that  the defendant accepted the offer.

It is trite that a court in deciding issues placed before it is guided by the evidence presented. From the papers and evidence led, the plaintiff intended to dispose houses in phase 2 to its employees who were sitting tenants when all procedural requirements were met. This created an impression that the plaintiff would dispose of houses in phase 2 to its employees who were sitting tenants. The question that therefore begs an answer is whether the impression created by the employer is a sensible basis upon which the defendant could legitimately expect that the house he occupied would be disposed to him despite the lease agreement and his contract of employment having been terminated? Certainly not. It is a requirement that a legitimate expectation must be reasonable. It is not in dispute that the defendant’s occupation of the premises in issue is hinged on his conditions of service apart from the lease agreement. The 2011 employment contract exh 1 clause 10 provided that

“depending on availability an unfurnished company house shall be made available for use by the employee. The company shall also provide a housing allowance for rentals and utilities towards the said accommodation. In the event that the company is not able to provide such accommodation, the employee shall be expected to provide their own accommodation, in which case a commensurate housing allowance shall be paid to the employee.”

As per this contract of employment the defendant was receiving a housing allowance which would go towards rental for these premises which fact defendant did not contest. Equally clause 1.1 of the lease agreement of 2014 provides that’s

“the lessor hereby lets the property to the lessee until the termination of the employment contract by either party.”

It is therefore clear that the right to occupy the premises in issue was intricately based on the contract of employment as amplified by the terms of the lease agreement.

Neither the contract of employment nor the lease referred to a right to purchase the property. The defendant was simply a tenant paying rentals which he ceased paying in 2022. For the defendant to expect to have rights to the house after his employment terminated can certainly not be a reasonable legitimate expectation. Suffice to mention that, the right of the defendant to be a beneficiary to the housing scheme no longer existed after termination of his employment. Thus, the court finds that the defendant cannot rely on legitimate expectation to be allowed to purchase the house.

The other defences by the defendant that he had assumed ownership because of his acceptance of the offer of 2003 , that since his matter pertaining to dismissal from employment was still  under arbitration he remained an employee and is therefore entitled to remain in  occupation of the property were not only ill informed but baseless. Suffice that it is now settled law in this jurisdiction that a former employee cannot hold onto the former employer’s property on the basis that he is challenging the termination of the employment contract. In the result, none of the defendant’s defences to the plaintiff’s claim can be sustained.

The plaintiff’s claim to evict the defendant therefore succeeds. The plaintiff prayed for costs on a higher scale. However, no strong submissions were made to justify such a drastic measure hence ordinary costs will be awarded. Suffice that the defendant has occupied the premises for over two decades making it his home, in that regard justice calls that sufficient time be afforded for him to move out.

In the result, the following order is made:

The Defendant and all those claiming occupation through him shall within 30 days of service of this order vacate the premises known as Number 1 New Oval, Bindura.

Upon failure to vacate as per Clause 1 above, the Sheriff shall evict the defendant and all those claiming through him from Number 1 New Oval, Bindura without further notice.

The Defendant shall bear the costs of suit.

Munangati-Manongwa J: …………………………………………….

Chimuka Mafunga Legal Practitioners, plaintiff’s legal practitioners.

Tsara & Associates, defendant’s legal practitioners.