FORMER Zimbabwe Broadcasting Corporation (ZBC) employees,
who recently lost their bid to retain flats at Hatley House in the Avenues area
in Harare, have since petitioned the High Court seeking rescission of judgment
delivered by Justice Edith Mushore in July this year.
Through their association, Hatley House Residents’
Association (HHRA), the ex-employees had also sought an order to compel ZBC to
pay them $216 880 as rentals refund from February 1, 2009 to October 31, 2015
and $3 680 per month from November 1, 2015 to the date the national broadcaster
ceased collecting rentals from the property.
But when the matter was heard by Justice Mushore, ZBC
denied ever selling the block of flats to HHRA and also filed a plea in abatement,
stating that HHRA’s claims had prescribed at the end of the year 2000.
Justice Mushore ruled in ZBC’s favour. However, on October
23, 2018, HHRA chairperson Innocencia Chitauro petitioned the court through
Mapendere and Partners Legal Practitioners seeking a reversal of the judgment,
arguing it was granted in error.
Chitauro said her erstwhile legal practitioners renounced
agency on February 9, 2018 and it was only on June 12, 2018 that ZBC, without
the former employees’ knowledge, set down the special plea as an unopposed
matter and HHRA’s claim was dismissed with costs, on a higher scale on July 4,
2018.
“The special plea itself was not properly set down. I am
advised by my legal practitioners and which advice I take as mine, that in
terms of the provisions of Rule 138 of the High Court Rules, where the other
party has not consented to the special plea, exception or application to strike
out within 10 days of their filing, the matter has to be set down for hearing
within a period of four days … this was not done,” Chitauro said.
“The exception raised by the first respondent (ZBC) had no
merit at all … the authorities are clear that the signing of an agreement does
not automatically translate to the transfer of property, but that transfer can
be effected at any agreed time upon demand. Therefore, prescription only starts
to run when demand is made … the first respondent was not in mora (in delay or
in default) until transfer was demanded. The first respondent even admits in
paragraph 4 of the plea that transfer was demanded on October 9, 2015.
Therefore, it cannot be said prescription started running in 1997.”
In the court papers, Chitauro maintains she worked for ZBC
until 2002 when she was retrenched together with a number of her co-workmates.
She said prior to their retrenchment, sometime in 1997, ZBC
purchased number 27 Josiah Tongogara Avenue, Harare, being Lot 1 of stand
1787A, Salisbury Township, measuring 1 660 square metres, held under title deed
of transfer number 3094/88 for Z$6 million, which amount was deducted from the
salaries of the employees until full payment was made.
Chitauro further said in terms of the agreement entered
between the parties, ZBC was obliged to remit all rentals it would have
received from the tenants in occupation of the flats, to HHRA and was further
obliged to transfer the property to the latter or its nominee.
The matter is yet to be set down for hearing. Newsday
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