MUTEMA
J: On
29 March, 2011 I dismissed unconditionally an application for summary
judgment by the applicant.
On
4 May, 2011 I dismissed a chamber application for leave to appeal to
the Supreme Court against the order dismissing the application for
summary judgment. The application for the leave to appeal had been
made pursuant to s43(2)(d) of the High Court Act, [Cap
7:06].
That provision states that:
“(2)
No appeal shall lie –
(a)…
(b)…
(c)…
(d)
From an interlocutory order or interlocutory judgment made or given
by a judge of the High Court, without the leave of that judge or, if
that has been refused, without the leave of a judge of the Supreme
Court …”
I
dismissed the application for leave on the basis of the provision of
s43(2)(b) of the same Act which provides:
“(2)
No appeal shall lie –
(a)…
(b)
From an order of a judge of the High Court in which he refuses an
application for summary judgment and gives unconditional leave to
defend an action;”
In
view of the clear and unambiguous provisions of s43(2)(b) of the High
Court Act, and the fact that my order was one dismissing an
application for summary judgment wherein I gave unconditional leave
to the respondent to defend the action, that order is not subject to
any appeal and s43(2)(d) does not apply.
Even
the Supreme Court cannot grant leave to appeal against such an order.
The
provisions in s43(2)(b) of the High Court Act [Cap
7:06]
have been literally interpreted in a number of precedents.
In
Haulage
(Pvt)
Ltd
v Mumurgwi
Bus Service (Pvt)
Ltd
1980 (1) SA 729 (ZRA), the court, in interpreting s31(1)(b) of the
predecessor High Court Act, [Cap
14]
(ZR) whose provisions fell on all fours with those in our current
s43(2)(b) of the High Court Act, [Cap
7:06]
held that in providing in s31(1)(b) of the High Court Act [Cap
14]
(ZR) that no appeal shall lie from an order of a judge of the General
Division giving 'unconditional leave to defend an action', the
Legislature intended to refer only to the granting of unconditional
leave to defend in summary judgment proceedings in terms of what are
now rr 69 and 70 of the Rules of the High Court (Order 10 of the High
Court (General Division) Rules in Rhodesia Government Notice 995 of
1971).
Implicity,
from the provisions of s31(1)(b) of [Cap
14],
where conditional leave to defend is granted in summary judgment
proceedings, the right of either party to appeal is restricted to a
right of appeal (with leave of the court under s31(1)(b)) only
against the conditions imposed. Pertinent to note here is that the
provisions of s31(1)(b) of the then [Cap
14]
are similar to those of s43(2)(b) of the present High Court Act and
Rules 69 and 70 of Order 10 of the High Court Rules 1971 are also
still the same. See also Howff
(Pvt)
Ltd
v Tromp's
Engineering
(Pvt)
Ltd
1977 (2) SA 267 (R); Rheeder
v Spence
1971 (1) SA 1041 (R).
In
spite of the plain language of the relevant legislation and case law
cited above to the effect that refusal of an application for summary
judgment coupled with unconditional leave to defend an action is not
appealable the applicant's legal practitioner, following my refusal
of leave to appeal, has since noted an appeal to the Supreme Court
against my order refusing summary judgment.
Whence
he got the leave to lodge such appeal is alien to the applicable law.
He
has now requested for written reasons for my order of 29 March, 2011
to enable him to prosecute his appeal.
It
is not for me to withhold them in spite of the law saying no such
appeal shall lie from such an order. Those reasons are herewith
provided.
In
the summary judgment application para 1 of the draft order is couched
thus:
“1.
Summary judgment be and is hereby entered in favour of the applicant
against the respondent for the ejectment of the respondent and all
persons claiming occupation through him from the immovable property
known as No.251 Wary Avenue, Bindura.”
This
is one of scores of similar cases wherein the respondents, just like
the present respondent, are ex-employees of the applicant whom the
applicant is seeking to evict from the several company houses on the
basis that the respondents were tenants and since their employment
with the applicant has terminated they must vacate the houses.
Just
like other respondents, the respondent herein argues that the
applicant sold the house to him an he has since paid off the full
purchase price while he was still an employee, hence the applicant
cannot legally evict him.
The
circumstances surrounding the case are somewhat queer.
What
is common ground is that the applicant anticipated closure of its
mine having foreseen viability difficulties. The management and
workers engaged each other with a view to disposing of company houses
by way of sale to sitting tenants. Some housing committee was
established to oversee and conclude that process. Several meetings
were held which culminated in management and employees signing a
Memorandum of Agreement to the effect that the applicant “agreed to
dispose of its housing units situated in Chiwaridzo, Grey Line Flats
and Low Density to its employees who are sitting tenants effective on
1 December, 2003. Find the agreed prices attached.”
The
schedules attached reflect names of the beneficiaries, house numbers,
new valuations and monthly repayments.
Then
comes the queerness of the entire arrangement.
On
12 December, 2003 the applicant concluded what is termed a Memorandum
of Agreement of Lease with the various sitting tenants who were to
purchase the houses. In the so called lease agreement are clauses,
inter
alia,
providing for the amount of rent payable per month which was to
“escalate periodically at the rate and on the basis described in
Annexure 'A' hereto.”
The
Annexure 'A' provides;
“The
value of the property will be revalued each time the employee is
awarded the annual salary increment. The outstanding balance as at
the effective date of the increment is what is revalued …. The
revalued outstanding balance will then be divided by the remaining
period to get the monthly payment.”
The
“lease” was to endure for five years commencing on 1 January,
2004 and had an option to purchase the property after the five year
period. The rentals paid by the lessee in terms of the “lease”
were to be taken into account and be deducted from the amount due in
respect of the purchase price.
The
respondent's various payslips over the years reflect two pertinent
items, viz a deduction itemised as “Rent to Buy” and another
itemised “Bal. Rent to Buy.”
It
is essentially the foregoing facts upon which the contention
revolves.
The
applicant contends that no sale agreement was concluded but a lease,
while the respondent contends that a sale agreement was in fact
concluded and that the purported lease was simply a “finance lease
whose lifespan would go as far as the last instalment towards the
purchase of the house by myself” and was never meant to be an
operating lease.
While
the applicant relied on the case of Ashanti
Goldfields Zimbabwe Limited
v Clemence
Kovi
SC7/09 which held that the arrangement between the parties was not a
sale but a lease, respondent argued that facts of the present case
are different from those in the Kovi
case. He further contended that in a trial cause in:
1.
Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited &
Registrar of Deeds; 2. Kingstone Mujati v Ashanti Godfields Zimbabwe
Limited t/a Freda Rebecca Mine & Registrar of Deeds; 3. Ashanti
Goldfields Zimbabwe Limited v Kwadzanayi Bonde
HH135/09 the High Court (MAKARAU JP as she then was) distinguished
the Kovi
case supra
on the facts similar to ones in casu
and held that there was a sale.
Therein
the learned judge at p10 of the cyclostyled judgment held as follows:
“The
plaintiffs allege that it was the first agreement that was entered
into with the requisite intention of creating a binding agreement
between the parties. The subsequent lease agreements were not as they
were meant and understood by both parties to be mere vehicles of
facilitating the payment of the purchase prices for the housing
units. That in my view should end the enquiry.”
And
at pp13 and 14 she held as follows:
“In
concluding as I do, I am aware of the Supreme Court judgment in
Ashanti
Goldfields Zimbabwe Limited
v Clemence
Kovi
SC7/09 in which it was held that the agreement of 1 December, 2003
between the defendant before me and a similarly placed employee to
the plaintiffs before me was not an agreement of sale. It was held in
that case that in the agreement, the defendant agreed to offer for
sale the housing units to its employees. While the Supreme Court in
the Kovi
matter found no evidence that the employee in that matter took up the
offer, in casu,
I believe I have such evidence. The clear evidence led before me
shows that each of the three employees took up the offer made to them
and exercised the option by commencing to make periodic payments to
the defendant. More importantly in my view such payments were
accepted by the defendant's management of the day as a reduction in
the purchase price of the housing units involved.”
Since
the facts and arguments in casu
fall on all fours with the cases dealt with by MAKARAU JP (as she
then was) cited above and also that the applicant's counsel in the
instant case represented the same client in the above cited matters,
he ought to have realised the futility of launching the application
for summary judgment as he must have known that the respondent has a
triable or arguable defence.
Over
and above that, the parties in that case are still awaiting the
outcome of the appeal noted at the Supreme Court.
The
applicant was accordingly trying a long shot in the dark.
The
foregoing were the reasons why the application for summary judgment
was refused and the respondent given unconditional leave to defend
the action.
Magwaliba
& Kwirira,
applicant's legal practitioners
Manyurureni
& Company,
respondent's legal practitioners
