Tawadzera Batiraishe Zishiri and 75 Others v Streamsleigh Investments (Pvt) Ltd

The 76 applicants were employees of Autoband Investments (Pvt) Ltd which traded as Trauma Centre & Hospital at premises located at Number 15 Lanark Road, Belgravia, Harare. The respondent (Streamsleigh Investments) was the lawful owner of the premises. In 2011, Autoband Investments had unlawfully and forcibly removed the respondent from the premises and commenced operating a medical centre there. Following a protracted dispute, the Supreme Court delivered judgment on 17 June 2014 (SC 43/14) ordering the eviction of Autoband Investments and restoring possession to the respondent. In pursuance of the Supreme Court order, the respondent issued a writ and evicted Autoband Investments along with all those claiming through it, including the applicants as employees. The applicants then approached the High Court on an urgent basis seeking to stay their eviction and dismissal, arguing they were not party to the Supreme Court proceedings and could not be evicted based on its order.

• Whether employees of an unlawful occupier who were not parties to eviction proceedings could resist eviction from premises
• Whether the eviction of employees following their employer's lawful eviction constituted unlawful dismissal or transfer of undertaking under section 16 of the Labour Act
• Whether the High Court had jurisdiction to entertain what was essentially a labour dispute
• Whether there was any legal basis for employees to claim continued occupation of premises or employment by the new owner

The application was dismissed with costs on the scale of legal practitioner and client against the applicants.

Employees who occupy premises solely by virtue of their employment with an unlawful occupier have no independent right to remain at those premises after their employer has been lawfully evicted pursuant to a court order. Such employees claim occupation through their employer and must be evicted along with the employer. An eviction pursuant to a court order does not constitute a transfer of undertaking as a going concern under section 16 of the Labour Act in the absence of an agreement to inherit employees. Employment disputes, including those relating to alleged unlawful dismissal, fall within the exclusive jurisdiction of the Labour Court by virtue of section 89(6) of the Labour Act and cannot be entertained by the High Court.

Mathonsi J made observations about the remarkable nature of the applicants' affidavits, noting they were 'remarkable, not by what they say, but by what they do not say' in failing to identify their employer or legal basis for occupation. The judge expressed difficulty comprehending how applicants could seek to continue executing duties at premises after their employer's departure, observing 'They were not employed by the walls of the building.' The court characterized the application as 'a Spanish Omlete which, to say the least, is an excursion in purposeless activity' and 'spectacularly without merit.' While the respondent sought costs de bonis propriis against the applicants' legal practitioner, the judge declined to make such an order, stating 'The applicants have made their bed and should blissfully lie on it.'

This case clarifies important principles regarding the rights of employees when their employer is lawfully evicted from premises. It establishes that employees claiming occupation through an unlawful occupier cannot acquire independent rights to remain at premises after their employer's eviction. The case also reinforces the jurisdiction of the Labour Court over employment-related disputes pursuant to section 89(6) of the Labour Act, and confirms that an eviction pursuant to a court order does not constitute a transfer of undertaking under section 16 of the Labour Act. The judgment demonstrates the courts' unwillingness to create non-existent employment relationships or force unwilling employers to inherit employees in the absence of contractual agreement or statutory basis.