Zimbabwe Posts (Private) Limited v Christopher Mamvura Chizura

The respondent was employed by the applicant and provided with company accommodation at stand number 35 Hospital Road, New Town, Kwekwe. On 13 January 2004, the respondent was suspended without pay or benefits. He was charged under the applicant's code of conduct, but the disciplinary hearing could not proceed due to union representatives failing to attend. The matter was referred to the Ministry and then to compulsory arbitration. An Arbitrator ordered the respondent's dismissal on 9 March 2005. The respondent appealed to the Labour Court on 22 March 2005, which was decided in his favor and referred the matter back to arbitration. At the time of this application, the matter was still awaiting determination by an arbitrator, meaning the respondent remained under suspension without pay and benefits, but his contract of employment had not been terminated. The applicant sought to evict the respondent from company accommodation, arguing that suspension without benefits included loss of the right to occupy company housing.

• Whether an employee suspended without pay or benefits can continue to occupy company accommodation provided under the employment contract
• Whether the applicant's actio rei vindicatio (vindicatory action) could succeed while the respondent's employment contract remained extant
• Whether accommodation constitutes an essential benefit that cannot be suspended during suspension from employment
• The proper interpretation of section 12(6) of the Labour Act [Cap 28:01] regarding accommodation provided by employers

The application for eviction was dismissed with costs against the applicant.

The binding legal principles established are: (1) Accommodation provided to an employee under an employment contract is an essential benefit that relates to the sustenance of life and cannot be suspended during suspension from employment; (2) An employee who is suspended without pay or benefits, but whose employment contract has not been terminated, retains the contractual right to occupy accommodation provided under that contract; (3) An actio rei vindicatio (vindicatory action) by an employer seeking to evict an employee from company accommodation cannot succeed while the employment contract remains extant, as the employee has a claim of right to retain possession that is enforceable against the employer-owner; (4) Section 12(6) of the Labour Act [Cap 28:01], though relating to termination by notice, applies with equal force to employment contracts that have not been terminated, meaning accommodation rights continue until the contract is actually terminated.

The court made several non-binding observations: (1) The court noted that once the fate of the employment contract is determined, the parties are at liberty to reassess their attendant rights, and once the contract is terminated, the respondent will no longer have a claim of right and the applicant will meet the full requirements of the actio rei vindicatio; (2) The court referenced Munyaradzi Gwisai's academic work on employment law, noting the distinction between benefits that may be suspended and those that cannot, particularly those relating to sustenance of life such as accommodation and food, which cannot be suspended as would have been the case under common law dismissal; (3) The court observed that section 12(6) of the Labour Act is silent on what should happen to accommodation where the contract has been suspended (not terminated), suggesting this silence indicates accommodation is not a benefit subject to suspension for any reason.

This case establishes an important principle in Zimbabwean labour law regarding the distinction between benefits that can be suspended during an employee's suspension and those that cannot. It clarifies that accommodation provided under an employment contract is an essential benefit that goes to the root of the contract and cannot be suspended separately from the contract itself. The case also demonstrates the interaction between property law principles (actio rei vindicatio) and labour law protections, establishing that contractual rights arising from an employment contract can constitute a valid claim of right that defeats a vindicatory action by a property owner. The judgment represents a modern interpretation of section 12(6) of the Labour Act and marks a departure from earlier common law principles that may have allowed suspension of all benefits.