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 426 A 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 HH
58/2012 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 HH
139-09 MAKARAU JP (as she then was), following a full trial based on similar
claims, distinguished the Ashanti
Goldfields Zimbabwe Limited v Clemence
Kovi SC 7/09 which the applicant seems to rely on in its claims and held
that the facts in HH 139-09 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 HH 135-09 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
