Zimpapers Pension Fund v Fortunate Chagwedera and Gladys Khupe

The plaintiff, Zimpapers Pension Fund, sought to evict the two defendants from flats owned by the plaintiff. The defendants' occupation of the flats was based on an employer/employee relationship with their employer (not the plaintiff). The plaintiff had entered into lease agreements with the defendants on the understanding that they occupied the flats pursuant to their employment contracts. The defendants' contracts of employment were subsequently terminated, but the lawfulness of such termination was the subject of a pending appeal before the Supreme Court. The plaintiff brought a rei vindicatio action (an action in rem to recover possession based on ownership) to evict the defendants. The defendants opposed the application, and the matter came before the court as an opposed application for postponement. The parties had not effected discovery in terms of Order 24 of the High Court Rules 1971.

• Whether a rei vindicatio action can proceed before the lawfulness of the termination of a contract of employment has been determined where occupation is based on the employment relationship
• Whether the plaintiff, as owner of the property, must prove lawful termination of the defendants' employment contracts when such contracts formed the basis of their original right to occupy
• Whether the matter should be postponed pending the outcome of the labour dispute before the Supreme Court
• The nexus between lawfulness of occupation and lawfulness of termination of employment contracts

The matter was postponed sine die pending the outcome of the defendants' appeal before the Supreme Court. The defendants were ordered to pay the plaintiff's wasted costs.

In a rei vindicatio action where the defendant's original right to occupy property was based on an employment contract, the plaintiff owner must prove the lawful termination of that employment contract, even if the plaintiff is not the employer, because the plaintiff entered into the lease arrangement on the basis of the employment relationship. Where there is a nexus between the lawfulness of occupation and the lawfulness of termination of employment, and a labour dispute concerning the termination is pending before a superior court, the rei vindicatio action should be postponed pending the determination of the labour dispute.

The court observed that the question of whether an employer (or property owner) can institute a rei vindicatio action before the lawfulness of the termination of a contract of employment has been determined is still shrouded in mystery, referencing the comments by MAKARAU J in Zimtrade v Malord Makaya HH 52-2005 and the decision in DHL International (Pvt) Ltd v Clive Madzikanda HH 57-2010. This indicates judicial recognition that this area of law requires further clarification and development.

This case is significant in Zimbabwean jurisprudence (applicable to South African law given the shared legal heritage) because it addresses the interaction between property law remedies (rei vindicatio) and labour law disputes. It establishes that where occupation of property is based on an employment relationship, the property owner must prove lawful termination of the employment contract before succeeding in a rei vindicatio action, even where the owner is not the employer. The case illustrates the principle that labour disputes must be resolved before property remedies can be enforced where the right to occupy is derived from employment. It also highlights the continuing uncertainty in the law regarding whether rei vindicatio actions can proceed before employment termination disputes are finalized.