Municipality of Chinhoyi v William Tadzimurwa Mandinde

### Preamble
1
HH 55-2013
HC 3286/12
---------


MUNICIPALITY OF CHINHOYI

versus

WILLIAM TADZIMURWA MANDINDE

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 25 February 2013

Opposed Application

AK Maguchu, for the applicant

B Machengete, for the respondent

KUDYA J: This is an application for the eviction of the respondent from the applicant’s premises at 3697 Muzare Extension Chinhoyi.

The respondent took occupation of the premises as a benefit of employment with the applicant. He was its director of finance. On 29 July 2011 the Chairperson of the Local Government Board acting in terms of s 123 (1) (b) of the Urban Council’s Act [Cap 29:15] wrote to the applicant approving the dismissal of the respondent from employment with effect from the date of dismissal by council. As a consequence of the termination of employment, on 15 November 2011 the applicant requested the respondent to vacate the above mentioned premises by 4 pm on 30 November 2011.

The respondent opposed the application. He averred that he was yet to be dismissed from employment in consequence of the letter of 29 July 2011. He understood the letter as directing the applicant to embark upon the process of dismissing him. He averred that the applicant had not yet commenced that process and had not yet in fact dismissed him.

He further averred that he lodged a complaint of unfair labour practice with the Ministry of Labour and Social Welfare in Chinhoyi for conciliation and claimed arrear salaries and benefits. In essence he averred that the complaint to the Labour Officer in Chinhoyi forestalled termination of and preserved his employment. He thus claimed that he was still employed by the applicant and entitled to all his employment benefits including the provision of accommodation by his employer.

The respondent’s averment that his employment had not been terminated and that such termination had not been communicated to him was incorrect. On 5 May 2011, at the conclusion of disciplinary proceedings the letter terminating his contract of employment, annexure A1 was served on his wife at the residence in issue after he refused to disclose his whereabouts. It was served by Alister Charuma who was in the company of three other employees of the applicant, Deputy Security Officer Mukono, Sergeant Makwanya and Mrs Madzorera. That he was dismissed is confirmed by the report of unfair dismissal that he lodged with the Ministry of Labour, annexure B1.

It is trite that an owner is entitled to vindicate his property once he establishes ownership and his lack of possession. A possessor can resist vindication on the basis of some right enforceable against the owner such as a right of retention or a contractual right and bears the onus of establishing his continued entitlement. See Musanhi v Mount Darwin Rushinga Co-op Union 1997 (1) ZLR 120 (S) at 124A-C.

The respondent did not challenge the applicant’s ownership. He accepted that he is still holding onto to the property. The onus to prove entitlement to remain in occupation lies on him. The documents filed by the applicant in the answering affidavit show that he was dismissed and was aware of his dismissal otherwise he would not have lodged a complaint for unfair dismissal. Such a lodgement does not suspend the dismissal that was approved by the Local Government Board. See FBC Bank Ltd v Energy Deshe HH 285-11 and the cases that were cited therein, a decision that was upheld on appeal by the Supreme Court on 30 November 2011. The respondent remains dismissed until the dismissal is overturned. That to me is the import of the sentiments of MUNGWIRA J in Founders Building Society v Mazuka 2000 (1) ZLR 528 (H) at 531E-H. He has failed to establish a basis for his continued stay in the applicant’s premises.

Accordingly, it is ordered that:

The respondent and all those claiming occupation through him shall vacate the premises at 3697 Muzare Extension Chinhoyi within 48 hours of the service of this order upon him failing which the Sherriff or his lawful deputy is empowered to evict the respondent and all those claiming occupation through him from the said premises.

The respondent shall pay shall pay the plaintiff’s costs on the legal practitioner and client scale.

Dube, Manikai and Hwacha, applicant’s legal practitioners

Nyamushaya, Kasuso and Rubaya, respondent’s legal practitioners