Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze

### Preamble
1
HH 347-2012
HC 804/12
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ASHANTI GOLDFIELDS ZIMBABWE

LIMITED t/a FREDA REBECCA MINE

versus

EPHRAIM PFIDZE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 5 September 2012 and

19 September 2012

Opposed Application

C Kwirira, for the applicant

G C Manyurureni, for the respondent

MATHONSI J:  The applicant seeks summary judgment for the eviction of the respondent and all those claiming through him from house number 1294 Mutufu Circle, Chiwaridzo Township, Bindura (“the house”) and costs of suit.

The respondent was, until 30 June 2009, employed by the applicant and in the course of that employment he was allocated the house by the employer as a tenant. In good time, following negotiations between the employer and the employees who were represented by a committee of employees, the employer offered to sell its housing units to sitting tenants. Some kind of agreement was signed between the employer and the employees’ representatives on 1 December 2003 which reads as follows:

“Ashanti Goldfields Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Greyline Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

Appended to that agreement was a schedule containing the list of employees involved, their house numbers, the value of each housing unit and the monthly instalment required to be paid by each employee involved. I must state that the schedule which is attached as an annexure to the applicant’s founding affidavit contains two pages. Mr Manyurureni for the respondent made an oral application at the hearing of the matter to submit the third page of that schedule containing the name of the respondent as one of the beneficiaries of the scheme.

Mr Manyurureni submitted that the agreement signed between the applicant and its employees always had a schedule with three pages and all the pages were signed by the relevant signatories to the agreement. In his view, it was clearly an oversight on the part of the applicant to leave out the last page containing the respondent’s name from the papers submitted to court. He submitted further that the respondent had also overlooked the issue and did not realise that the relevant page was missing right up to the time of arguments. For that reason he sought the indulgence of the court to hand in the missing page.

Mr Kwirira for the applicant opposed the application on the ground that including the missing page would be prejudicial to the applicant. The respondent should have made the application earlier than that to enable the applicant to construct its case having regard to it. He however conceded that the signatures of all the parties who signed the agreement are appended on the missing page and that, on the face of it, the document looked authentic.

In my view, the schedule submitted by the applicant was demonstrably incomplete because it contained only “section 1” of “High Density Disposal Price List.” For that document to have “section 1” must only mean that there is another section to it. Indeed it is that other section being “section 2” of “Medium Density Disposal Price List” which the respondent sought to introduce to the record. That section 2 contains the name of the respondent on the list. I do not want to believe that the applicant plucked that section from the annexure in order to pull the wool over the court’s eye because that would be unfortunate indeed.

What is clear though is that it is in the interest of justice that the missing page be allowed as part of the record in order to arm the court with all the evidence to make an informed decision. It is for these reasons that I came to the conclusion that the applicant’s opposition to the application to introduce the missing page was without merit. I therefore allowed the page to be included in the record as annexure “D4.”

Coming back to the main issue, the parties signed a document titled: “Memorandum of an Agreement of lease” about 15 December 2003, days after the sale agreement of 1 December 2003 had been signed, in terms of which the respondent was now, ex facie, agreeing to lease the same house from the applicant for a rental of $35 700-00 per month (Zimbabwean currency), the same amount captured on the schedule to the agreement of 1 December 2003 as the monthly instalment for the purchase of the house.

In terms of that lease agreement the respondent had an option to purchase the house at the expiration of 60 months which was the duration of the lease agreement. As the lease agreement expired on 15 December 2008, the applicant then reclaimed the house arguing that the respondent had not exercised the option to purchase it. When the respondent resisted those overtures, the applicant instituted eviction proceedings and upon the filing of an appearance to defend, it brought this application for summary judgment on the basis that its claim is unassailable and that appearance to defend has been entered for purposes of delay.

The respondent has opposed the application arguing that he has a good defence to the applicant’s claim as he purchased the house from the applicant as a sitting tenant who was offered the house under the scheme captured in the sale agreement of 1 December 2003 which I have already referred to. The respondent maintains that the lease agreement of15 December 2003 was but a financial vehicle through which payment of the purchase price was to be made via direct payroll deductions from his salary.

He advanced that argument further by submitting samples of receipts issued by the applicant to him showing payments he made with the caption “payment of house.” He also submitted a ledger print out which captured the deductions made from his salary as “rent to buy” and “house payment.” They were directed to the applicant’s cost centre for the housing fund.

The respondent submitted that having purchased the house, he is entitled to take transfer and that the applicant is therefore not entitled to summary judgment as the issues he raises are triable.

Our courts have, on times without number, maintained that summary judgment procedure is an extra ordinary remedy which is very stringent in effect in the sense that it closes the door to a defendant to defend a claim. It is a remedy which is available to a plaintiff whose case is unanswerable. By its very nature, the claim of such a party must be so unassailable that a defendant intimating a desire to contest it would clearly be wasting the court’s time and frustrating the plaintiff who should then be saved the agony of a trial.

On the other hand, a defendant faced with a summary judgment application can successfully contest such application if he can establish what was set out by MALABA J (as he then was) in Hales  v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H) at 238 G and 239 A-B as follows:

“… he must at least disclose his defence and material facts upon which it is based with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence (Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426 D … the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at the trial, will constitute a defence to the plaintiff’s claim.”

In arguing that the applicant’s case is unassailable, Mr Kwirira relied on the case of Ashanti Goldfields Zimbabwe Ltd v Kovi S-7-09 (unreported) where CHEDA JA stated at pp 3 – 4 about the agreement of 1 December 2003, as follows:

“It is difficult to understand how the Memorandum of Understanding can be said to be an Agreement of Sale. What is clear is that the appellant was offering the houses to the sitting tenants who were its employees. There is nothing to show that the respondent took up the offer. The respondent seeks to argue that the Memorandum was an agreement. There is nothing to show that the respondent took up the offer. The respondent seeks to argue that the Memorandum was an agreement. There is nothing to show that every one of the employees on the list purchased the houses. At best, the document can only be read as showing who occupied which house and the price they could pay if they accepted the offer to purchase.”

That the pronouncements of the Supreme Court are binding on me is self-evident but I have had occasion previously in Govha v Ashanti Goldfields Zimbabwe Ltd t/a Freda Rebecca Mine & Anor HH 48-12 to comment on the effect of that judgment and followed the reasoning of MAKARAU JP (as she then was) in Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; Mujati  v Ashanti Goldfields Zimbabwe Ltd & Anor and Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H) where she stated at 385 F-G that:

“I am bound by all decisions of the Supreme Court on points of law. Where however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret these facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

In Govha (supra), where facts are on all fours with the present case I assessed the dispute at pp 4 – 5 thus:

“Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees’ representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary, the applicant included. It goes on to deduct the equivalent of such instalment from the applicant’s salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction. The same instalment is reflected on a written lease agreement.”

I still stand by that analysis of the facts and I should also add that in minutes of a meeting of the applicant’s board of 16 December 2003, a day after the purported lease agreement was signed between the parties, the issue of the sale of residential stands was discussed and recorded in the following:

“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 were busy filling in the contract forms.”

The only contract form that has been produced is the lease agreement of 15 December 2003 and yet the board was discussing the conclusion of sale agreements. I think there is substance in Mr Manyurereni’s argument that the so called lease agreement was a vehicle through which the applicant was to deduct the purchase price from the respondent’s salary.

I may be wrong in that conclusion but whatever the case, that is definitely an arguable case the respondent is entitled to present at the trial. It cannot be said therefore that the applicant’s case is unassailable. Quite to the contrary, he has presented facts which, if proved at the trial, would constitute a defence to the claim for eviction.

The facts that were placed before the Supreme Court in Ashanti Goldfields Zimbabwe Ltd v Kovi (supra) were significantly different from the present case. In that case the employee had made lump sum payments to the employer and then resigned from employment. Thereafter he sought to compel the employer to transfer the house to him. He had not complied with the requirement for instalments and the court concluded that he had only paid rent arrears.

In my view, the respondent is entitled to argue his case that the deductions made from his salary went towards payment of the purchase price and that the “lease agreement” was not what the applicant claims it was. There is a factual dispute that can only be resolved by viva voce evidence at the trial.

I am therefore not persuaded that the applicant’s claim is unanswerable. Conversely, I am of the view that the respondent has set out material facts which disclose a bona fide defence which requires interrogation in a full trial.

For those reasons, the summary judgment application is dismissed with costs.

Magwaliba & Kwirira, applicant’s legal practitioners

Manyurureni & Company, respondent’s legal practitioners