Hwange Colliery Company Limited has failed to have an ex-employee’s challenge to its eviction bid thrown out, with the High Court ruling that the company can pursue his removal from accommodation only after proving it has fulfilled its outstanding obligations under a retrenchment agreement.
Justice Evangelista Kabasa dismissed a special plea by Bernard Tongogara, who argued that the company’s latest eviction proceedings were barred because the dispute had already been decided by the courts.
The ruling leaves Hwange facing another legal hurdle in its attempt to reclaim House Number 10 Hillcrest Road in Hwange, which Tongogara occupied through his employment contract.
The dispute dates back to 2016, when Tongogara’s employment was terminated and the company subsequently sought to evict him from the house.
In September 2018, the High Court dismissed Hwange’s initial eviction claim, ruling that the company first had to honour its obligations under the retrenchment agreement by paying Tongogara’s package.
The court held that “a party cannot seek to enforce a contract that it has breached” and ordered, in effect, that the outstanding dues had to be paid before the company could successfully pursue eviction.
Hwange appealed against that judgment but later withdrew the appeal.
The company subsequently returned to court, arguing that it had paid Tongogara’s retrenchment package in instalments between 2017 and 2020, with the final payment allegedly made on July 9, 2020.
However, its attempt to secure eviction through the Magistrates Court ended in another setback after default judgment was granted when Tongogara’s lawyer failed to appear for trial.
An application to rescind the judgment was dismissed, prompting Tongogara to approach the High Court on review.
On July 16, 2025, the High Court set aside the default judgment and subsequent rescission proceedings, citing the earlier ruling in the dispute.
Hwange then issued fresh summons on March 6, 2026, prompting Tongogara to argue that the company was attempting to re-litigate a matter already settled by the courts.
But Justice Kabasa said the earlier judgments had not determined whether the retrenchment package had subsequently been paid, meaning the company could still seek eviction if it proved that it had met the condition imposed in 2018.
“The employer had to pay the retrenchment package before it could successfully bring a rei vindicatio action,” Justice Kabasa said, referring to the legal remedy through which a property owner seeks to recover possession of property from someone occupying it.
The judge said the earlier ruling had settled the principle that Hwange had to fulfil its contractual obligations before pursuing eviction, but had not finally determined whether the company had since complied.
“The issue of whether the retrenchment package was paid was never adjudicated on and a pronouncement made,” she said.
Justice Kabasa added that the company was not seeking to reopen the original dispute over whether unpaid terminal benefits could justify continued occupation of an employer’s property. Instead, it wanted to establish that the condition imposed by the earlier judgment had now been fulfilled.
“There is therefore nothing stopping the plaintiff from seeking to vindicate its property anchoring that action on the fact that the condition set under HB 214-18 has now been fulfilled,” the judge ruled.
She dismissed Tongogara’s special plea with costs, allowing the eviction proceedings to continue.
The ruling does not itself order Tongogara’s eviction. Hwange must still prove that it fulfilled the condition set by the earlier judgment before it can successfully reclaim the property.
Justice Kabasa said the special plea had no merit because the earlier judgments had not made a final and definitive determination on whether the retrenchment package had been paid.
Hwange was represented by E. Mashindi of Mashindi and Associates, while S. Chamunorwa of Calderwood, Bryce Hendrie and Partners represented Tongogara.
Read the original article on New Zimbabwe.
