Zimbabwe Platinum Mines (Pvt) Ltd versus Wilson Chikwature

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                                                                                             HH 368-21
                                                                                            HC 3886/20



ZIMBABWE PLATINUM MINES (PVT) LTD
versus
WILSON CHIKWATURE


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 4 June 2021


D. Peneti, for applicant
J. Sande, for respondent


Opposed Application


   CHIRAWU-MUGOMBA J: On the 4 th of June 2021, I gave an order ex tempore as

follows.

   1. The application be and is hereby granted.
   2. The respondent and all those claiming occupation through him be and is hereby ordered to
      vacate the property called Lot 2736 Core House Turf, Ngezi within seven (7) days of the date
      of being served with the order.
   3. In the event that the respondent fails or refuses to vacate as aforesaid, the Sheriff or his lawful
      Deputy be and is hereby empowered to evict the respondent and those claiming title through
      him from Lot 2736 Core House Turf, Ngezi without further notice.
   4. The respondent shall pay costs of suit.

   I have been requested to furnish reasons. These are they.
   The applicant is the owner of property known as Lot 2736 Core House, Turf, Ngezi (the
property). The current occupant is the respondent who is a former employee of applicant and
whose employment was terminated on the 3 rd of September 2019. At all material times, the
respondent was allocated company accommodation. A lease agreement was concluded to
govern the accommodation issue. The lease agreement has a provision that for an employee
to be eligible to purchase a house they occupied as part of their employment, they have to
complete an agreed service period of ten years calculated from date of signing of the lease.
They would then be eligible to exercise the option to purchase the property. The lease was
signed between the parties on the 1st of September 2014 and terminated on the 4th of October
2019. The respondent was entitled to a month’s notice to vacate hence the October 2019 date.
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The respondent has failed or refused to vacate after the lapse of the notice period and hence
the applicant is entitled to seek eviction.
        In his notice of opposition, the respondent raised two points in limine. Firstly that the
matter ought to have proceeded by way of summons as there were material disputes of fact
and lastly that there was no citation of the local authority in whose name bills were sent. He
further averred that he was occupying the property lawfully. On the merits, he averred that
the applicant had failed to attach documentary proof of being owner of the property and that
he had not been paid his terminal benefits.
        In response to the points in limine, applicant stated that there were no material
disputes of fact and that there was no need to join the local authority. In relation to the bills,
it is the applicant who authorised that they be in respondent’s name since the latter as the
occupant should be responsible for paying. The issue of terminal benefits is separate and has
no bearing on the eviction.
        At the hearing, Ms Sande for the respondent abandoned the preliminary points thus
paving way for the matter to be heard on the merits.
        The basis of the application as rightly submitted by Mr Peneti is the lease agreement
signed by the parties. The lease agreement is what can aptly be described as rent-to-buy.
The respondent submitted that the fact that the bills for the property are in his name suggests
that the applicant is not the owner. Clause 4.1 and 4.2 of the lease agreement states that the
employee shall be responsible for the payment of all utility bills and for opening utility
accounts in hers or his name with the relevant service providers. There is no doubt that the
property belongs to the applicant. It cannot be correct as contended by the respondent that
there is no proof to that effect. In any event, it is contradictory to challenge ownership and at
the same time to acknowledge signing of the lease that clearly indicates the circumstances
under which ownership of the property from employer to employee can be transferred. The
question is how then can the parties willingly sign the agreement if the employer is not
capable of transferring ownership?
        Clause 1.3 describes the agreed service period as a continuous one of at least ten years
from the effective date. The applicant submitted that the date of reckoning for the ten year
period is the 1st of September 2014. This cannot be correct. Effective date is the one
provided for in clause 2 as the 1 st of October 2012. The respondent’s employment was
terminated on the 3rd of September 2019. This was clearly less than the envisaged 10 years
continuous service period as envisaged.
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       In terms of s17:2, 17.2.2, and 17.2.4, if an employee is in breach, dismissed or resigns
prior to the completion of the agreed service period, the employer in this case the applicant,
shall be entitled to take possession of the property. The respondent having been dismissed
from employment without completing the 10 years continuous service therefore has no
defence on this aspect.
       Ms Sande submitted that the respondent had been in service for about 7 years. During
that period, he was contributing towards payment of the purchase price. The monthly
contribution consisted of an amount of US$77 towards the purchase of the property.
Although he signed the agreement, he cannot be evicted without compensation. Mr Peneti
pointed out to clause 17.2.5 that provides for refund to a former employee of amounts
contributed as monthly capital payments as at the date of termination. That issue therefore
cannot be used by the respondent as a basis for remaining in the property. See Steelmakers
Zimbabwe (pvt) Ltd vs Mandiveyi, HH-479-15.
        The applicant is clearly entitled to vindicate the property against the respondent. The
law guards jealously the property rights of an owner- See Nzara and ors vs. Kashumba N.O
and ors, 2018(1) ZLR 194(S).



Dube, Manikai and Hwacha, applicant’s legal practitioners
Sande Legal Practice, respondent’s legal practitioners