Nevermind Chingwena v SMM Holdings (Pvt) Ltd and The Administrator and The Sheriff of Court N.O

The applicant was employed by the first respondent and allocated house number 36 School Avenue Noelvale Zvishavane as an employment benefit. Between 11-20 March 2011, applicant deserted from work and was dismissed on 27 March 2011 after due process. He did not appeal the dismissal. The applicant remained in occupation of the property. First respondent issued summons for eviction on 23 August 2016. Applicant entered appearance and filed a plea on 28 September 2016. First respondent filed an application for summary judgment under HC 1101/17 on 31 August 2017. A default judgment was granted against applicant. First respondent obtained a warrant of ejectment served on applicant's sister on 12 January 2018. Applicant claimed he never received the summary judgment application despite a certificate of service showing it was served on Edwin Mafa at his corresponding legal practitioners on 20 April 2017. Applicant filed an urgent application for stay of execution pending filing of an application for rescission of the default judgment, claiming he was owed US$23,000 in salary arrears and had no alternative accommodation.

• Whether the applicant had established grounds for a stay of execution pending an application for rescission of default judgment
• Whether the applicant provided a reasonable explanation for the default
• Whether the applicant demonstrated bona fides in seeking rescission
• Whether the applicant had any residual right to occupy company property after termination of employment
• Whether the applicant would suffer irreparable harm if the stay was not granted
• Whether the balance of convenience favored granting the stay of execution

The application for stay of execution was dismissed with costs.

Once a contract of employment has been terminated, an employee is not entitled to continued enjoyment of benefits comprising free occupation of company property. The statutory provisions (section 12(6) of the Labour Act [Chapter 28:01] and section 25(2) of the Collective Bargaining Agreement Mining Industry SI 152/90) require vacation of employer-provided accommodation within prescribed periods after termination of employment. To obtain a stay of execution pending rescission of default judgment, an applicant must cumulatively establish: (1) a reasonable explanation for the default; (2) bona fides of the application; and (3) prospects of success on the merits. A claim for salary arrears does not confer a residual right to occupy employer property after termination and does not constitute a defence to eviction. Clients must suffer the consequences of their legal practitioners' negligence in failing to comply with procedural rules.

The court observed that it would be laughable to suggest that the applicant could not secure alternative accommodation in Zvishavane. The court also commented that the explanation provided by applicant's legal practitioners - that they did not see the court application for summary judgment nine months after service, contrary to hard evidence of service - was "an insult to the intelligence of the court." The court noted with concern the increasing number of applications for condonation due to legal practitioners' neglect and emphasized there is a limit beyond which a litigant cannot escape the consequences of their attorney's lack of diligence. The court remarked that if courts were to extend mercy in such circumstances, it would be at the expense of a litigant who has already established their rights in court, and such mercy should be sought in the action itself before judgment, not afterwards.

This case reinforces important principles in Zimbabwean labour and property law regarding: (1) the termination of employment benefits, particularly occupation rights to company housing, upon cessation of employment; (2) the strict requirements for establishing grounds for stay of execution and rescission of default judgments; (3) the duty of legal practitioners to comply with procedural rules and the principle that clients bear consequences of their attorneys' negligence; (4) the application of statutory provisions governing vacation of employer-provided accommodation under the Labour Act and relevant collective bargaining agreements; and (5) the proper test for irreparable harm in stay applications. The judgment emphasizes that claims for salary arrears do not constitute a defence to eviction from company property after employment termination and do not justify continued occupation.