Opposed
Application
MUTEMA
J: This
is an application for summary judgment whose draft order reads:
“1.
The respondent be and are (sic)
hereby ordered to vacate the plaintiff's premises to wit House No.
1117 Haka Way, Chipadze Township, within seven (7) days of this
order.
2.
The respondent pays costs of suit.”
This
is one of several similar matters in which the applicant is seeking
the eviction of its former employees from company houses on the basis
that the former employees were mere tenants whose employment has
since terminated.
The
former employees, just like the respondent herein, argue that the
applicant sold the houses to them.
The
respondent argues that he has a bona
fide
defence to the applicant's claim. That defence is explained as
follows:
In
1998, the applicant, as part of its staff retention scheme, proposed
to sell its housing units to its employees over a five year period.
By then, the life-span of the mine had been projected to be around
five years. The scheme would also help the applicant realise better
value from the disposal of the houses in that manner as opposed to by
selling them upon closure of the mine in an environment akin to a
ghost town.
As
a sequel to the proposal, a lot of deliberations were held on the
issue and a housing committee was put in place composed of
representatives of the employees and the applicant. The relevant
minutes were attached to the opposing papers.
Minutes
of 8 May, 2003 read:
“2.1
Sale of Residential Properties
The
process was still on going and progressing well. The Finance
Director, together with the workers representative went to consult a
lawyer to resolve the outstanding issues. The lawyer came up with
what he advised as the best option. Minor changes were made to what
the lawyer proposed to suit the employee's needs. Whether that is
acceptable will be determined when forms are taken back to the
lawyers. IT WAS AGREED that the issue be pursued closely so that it
comes to rest.”
Minutes
of 24 August, 2003 read:
“2.1
Sale of Residential Properties
There
was a lot of progress on the sale of residential properties. A hurdle
on the revaluation of the houses was cleared with Mr
Kwaku-Akosah-Bempah when he visited the mine during the second
quarter. The Finance Director together with the worker's
representative had been to the lawyer with the final draft to which
the lawyer had already responded.…”
Thereafter,
what was termed a Memorandum of Agreement BETWEEN Ashanti Goldfields
Management and Employees was signed. It provided:
“Ashanti
Goldfields Zimbabwe agrees to dispose of its housing units situated
in Chiwaridzo, Grey Line Flats and Low Density to its employees who
are sitting tenants effective 1 December 2003. Find the agreed prices
attached.”
The
attached schedule has names of the sitting tenants, house number, new
valuation of the house and monthly repayment amount.
On
12 December 2003, the respondent (and other employees) entered into
what is headed Agreement of Lease with the applicant.
The
material clauses of the “lease” state that the lease period would
be for five years, monthly rent of not more than 25% of the lessee's
basic salary which would escalate periodically at a rate and on the
basis described in Annexure 'A' viz “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 revaluation will be calculated as
follows:
50%
of the salary increment (%) x the outstanding balance (as at that
date). The revalued outstanding balance will then be divided by the
remaining period to get the monthly payment.”
The
purported lease agreement was simply a vehicle through which
deductions would be made from the respondent's salary.
This
explains why the applicant on the respondent's payslip put a
deduction titled “Rent to Buy” and why the applicant accepted a
lump sum payment in full and final settlement of the sums payable to
it under the agreement of sale before the expiration of the purported
lease period.
Also,
the minutes of 16 December, 2003 are apposite. The relevant part
reads:
“3.0
Sale of Residential Properties
There
was a lot of progress on the sale of residential properties.
Management had approved and concluded the sale. The employees are
busy filling in the contract forms.”
Pertinent
to note here is that this was said after 12 December, 2003 purported
lease agreement.
While
there exists a plethora of case law on the subject of summary
judgment, the locus
classicus
is that of Maharaj
v Barclays National Bank Limited
1976 (1) SA 418 (AD) at 426A where CORBETT JA said:
“Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the court by affidavit that he
has a bona
fide
defence
to the claim. Where the defence is based upon facts, in the sense
that material alleged by the plaintiff in his summons… are disputed
or new facts are alleged constituting a defence, the court does not
attempt to decide these issues or to determine whether or not there
is a balance of probabilities in favour of one party or the other.
All that the court enquires into is:
(a)
Whether the defendant has fully disclosed the nature and grounds of
his defence and the material facts upon which it is founded; and
(b)
Whether on the facts so disclosed the defendant appears to have, as
to either the whole or part of the claim, a defence which is bona
fide
and good in law.”
On
the facts so disclosed in casu
I
am persuaded that the respondent's defence is bona fide and good in
law.
I
also derive solace in reaching this conclusion from the salutary
words of GUBBAY JA (as he then was) in Jena
v Nechipote
1986 (1) ZLR 29 (S) at 30 where the LEARNED JUDGE OF APPEAL held:
“All
the defendant has to establish in order to succeed in having an
application for summary judgment dismissed is that there is a mere
possibility of his success; he has a plausible defence; there is a
triable issue; or there is a reasonable possibility that an injustice
may be done if summary judgment is granted.”
The
respondent's explanation expounded above; right through its
chronology of events pertaining to the disposal of residential
properties does amount to a trial issue. Exists a reasonable
possibility of an injustice being done if summary judgment were to be
granted.
I
am constrained to utter the following strictures concerning the
applicant's obduracy.
As
stated above, there are scores of similar cases involving the
applicant and its former employees. One such is Ashanti
Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo
HH58/2012 wherein I dismissed a similar application on the same
grounds.
The
applicant seems to be engaged in a process of judge-hunting because
several similar cases are either pending before other judges or have
been dealt with meeting with the same fate of dismissal.
In
1. Simbarashe
Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of
Deeds;
2.
Kingstone
Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine &
Registrar of Deeds;
and 3. Ashanti
Goldfields Zimbabwe Limited v Kwadzanayi Bonde
HH139-09 MAKARAU JP (as she then was), following a full trial based
on similar claims, distinguished the Ashanti
Goldfields Zimbabwe Limited v Clemence Kovi
SC7/09 which the applicant seems to rely on in its claims and held
that the facts in HH139-09 established a sale.
Those
facts fall on all fours with the facts in casu
as
well as those in the Nguwo
case supra
in which I dismissed the application for summary judgment and gave
the respondent unconditional leave to defend.
Although
the judgment in HH135-09 was appealed against and the appeal is still
pending, it is only prudent and proper that the applicant should
await its outcome and stop judge-hunting in order to avoid creating a
multiplicity of contradictory judgments involving the same issue
thereby causing confusion and injustice.
Since
the facts and argument in casu
fall on all fours with the cases dealt with by MAKARAU JP (as she
then was) cited supra,
and the Nguwo
case I dealt with supra,
the present application for summary judgment be and is hereby
dismissed and the defendant is given unconditional leave to defend
the action. The applicant is ordered to pay the costs of this
application.
Magwaliba
& Kwirira,
applicant's legal practitioners
