Chronicle Editor
Fairness Moyana in Hwange
HWANGE Rural District Council (HRDC) has dragged its former treasurer to court seeking an order to evict him from one of its residential properties five years after dismissing him.
Council is also seeking to force Mr Mafa Ngwenya who was dismissed from the local authority after being convicted of theft of trust funds in 2015 to pay rentals of the house he is staying in since leaving the local authority.
According to court papers seen by Sunday News HRDC which was represented by Mr Chris Dube-Banda of Dube, Banda, Nzarayapenga and Partners sought an order confirming cancellation of Mr Ngwenya’s right to occupy stand 33 Lukosi Service Centre, Hwange.
The local authority argued that since Mr Ngwenya was no longer employed by the council, he was supposed to be evicted from the residence coupled with paying US$2 732 being rent arrears as of September 2018.
In addition, the council wanted an order compelling Ngwenya to make a payment of US$10 per day as hold over damages dated from 1 October 2018 to date.
“On 10 October 2018 plaintiff caused to be issued before this Court summons, wherein the following claims against the defendant: an order confirming the cancellation of defendant’s right to occupy Stand Number 33 Lukosi Business Centre, Hwange. An order ejecting defendant and all those claiming the right of occupation through him, from the property; An order for payment in the sum of US$2 732,44 being the balance of rent arrears as of September 2018; Payment of US$10 per day as hold over damages from 1st October 2018 to date of full payment; Payment of US$559 being reimbursement of telephone charges; Payment of US$824 being the replacement value of the laptop defendant took with him at the time of termination of contract of employment; Interest at the prescribed rate from the amounts owed calculated to date of final payment; Cost of suit on an attorney-client scale” read submissions from Plaintiff (HRDC),” argued the council.
HRDC argued that Ngwenya was supposed to have been paying US$300 per month following his dismissal.
“Defendant failed and or refused to pay the rent and as at September 2018, he was in arrears in the sum of US$7 400. As a result of defendant’s continued occupation of the property, plaintiff is suffering damages in the sum of US$200 per month.”
The local authority, however, conceded that it owed Ngwenya $7 143 being accrued leave days and unremitted pension which it intended to use part to off-set rent arrears.
“Plaintiff concedes that he owes defendant the sum of $7 143,96 made up of the sum of US$5 007 being accrued leave days and US$2 136,96 being unremitted pension. The amount of $7 1143,96 is taxable in the sum of US$2 390,93 and US$85,47 administration levy on pension leaving a balance of US$4 667,56. The plaintiff seeks leave of court to off-set the amount it owes defendant with rent arrears culminating on the date of eviction from property (the amounts to be calculated on the date of eviction). On termination of the contract of employment, defendant took with him plaintiff’s laptop whose replacement value is US$824. He continued using mobile line of plaintiff and incurred a bill of US$599 for the period September 2015-September 2016.”
However, in his response Mr Ngwenya through his lawyer, Ms Joylyn Change of Mvhiringi and Associates argued that defendant was in lawful occupation of the said property, as he was still owed his salaries and benefits by council.
“Defendant has not been in unlawful occupation or possession of stand number 33 service centre. Defendant approached the human resources officer of the plaintiff for payment of his salary arrears and he was informed that he would be paid once plaintiff was over its financial challenges. The defendant was also not advised to vacate the house upon termination of his employment contract. A letter was written to him two years later that is in October 2018 advising that he was expected to pay rent. There was neither follow-up discussion on the terms of rentals nor an agreement on rental amount. The plaintiff also failed to produce documentary evidence to show former employees are liable to pay rentals in the absence of a lease agreement. It was merely an afterthought to say defendant was discounted rentals because he was a former employee,” said Mr Ngwenya.
He further questioned the origins of the rate used to determine the amount he owed as he had never entered into a lease agreement with council.
“In its evidence Plaintiff averred that defendant owed it rentals in the sum of $2 732,44 where this rate and amount is derived from is still unclear as plaintiff failed to explain how it was arrived at. Defendant defended the claim on the basis that he never entered into an agreement of lease with the plaintiff and that he has a lien over the premises in that Plaintiff still owes him substantial amount of money being outstanding salaries, unremitted pensions, medical aid funds and leave days etc. Section 12A (6) of the Labour Act chapter 28:01 prohibits any set off from an employee’s remuneration with a number of exceptions of which rent is one of them. In this case, defendant did not consent to a set off which is illegal in addition to the fact of figures he did not know of any lease agreement between him and plaintiff, as none exists. The court must show its disapproval of plaintiff’s determination to break the law by dismissing this claim with an order for punitive costs,” he further argued.
In her judgment presiding magistrate, Mrs Barbra Phiri ordered Ngwenya to vacate the council house, pay for the telephone bill as well as to replace the laptop. She however, dismissed the council’s request to order Ngwenya to pay rental arrears. Each party to bear their own costs.
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