African Sun Limited v Mildred Zulu

The applicant (African Sun Limited) employed the respondent (Mildred Zulu) as a General Manager. During her employment, the respondent benefited from the applicant's Staff Car Loan Scheme and received USD $28,000.00 which was paid directly to a car dealer (Jarzim Auto Car Hire) in South Africa for the purchase of a Toyota Fortuner D4D. The respondent signed the Staff Car Loan Scheme Agreement on 11 October 2019, and the money was transferred to the dealer on 5 March 2020. Under the agreement, the motor vehicle was registered in the respondent's name, but the registration book was to be surrendered to the applicant until full repayment. The agreement provided that upon retrenchment, the loan would become immediately due and payable, failing which the vehicle should be surrendered. The respondent was retrenched in September 2020. The applicant did not deduct loan repayments from her salaries due to financial problems. At the time of retrenchment, the loan had not been repaid. The respondent did not surrender the vehicle or pay the outstanding loan. The applicant also did not pay the respondent's retrenchment package, notice pay, or pension benefits. The applicant issued summons claiming the full amount of USD $28,000.00. The respondent entered appearance to defend, and the applicant then applied for summary judgment.

• Whether the applicant had an unanswerable case entitling it to summary judgment
• Whether the respondent had a bona fide defence to the claim
• Whether the defence of set-off constituted a genuine defence preventing summary judgment
• Whether the respondent's alleged debts (retrenchment package, notice pay, and pension benefits) owed by the applicant were sufficiently liquidated and capable of easy proof to support a defence of set-off

The application for summary judgment was dismissed with costs on the ordinary scale.

Summary judgment will be refused where a defendant establishes a plausible and bona fide defence, even if that defence is based on set-off. For purposes of resisting summary judgment, a defendant need not prove their defence exhaustively but must disclose the defence and material facts upon which it is based with sufficient clarity and completeness to enable the court to determine whether it discloses a bona fide defence. A defendant need only establish that there is a mere possibility of success, a plausible case, a triable issue, or a reasonable possibility that an injustice may be done if summary judgment is granted. Where mutual debts exist between parties (such as an employer's debt for an outstanding car loan and the employer's unpaid obligations for retrenchment packages, notice pay, and pension benefits), the defence of set-off may constitute a valid defence defeating summary judgment, provided the defendant can establish facts showing the existence of such mutual debts with sufficient clarity.

The court noted that the issue of the retrenchment package was before the Labour Officer for determination, as the respondent had challenged the package computed by the applicant. While this did not form part of the ratio, it provided context for the ongoing dispute between the parties. The court also observed that the applicant had not deducted any money from the respondent's salaries for loan repayment because it was facing financial problems, which provides background to the parties' relationship and the circumstances leading to the dispute.

This case illustrates the application of established principles governing summary judgment applications in Zimbabwean law, particularly the high threshold required for granting summary judgment and the requirement that defendants need only show a plausible, bona fide defence rather than prove their case at the summary judgment stage. It demonstrates how the defence of set-off can successfully defeat a summary judgment application even where the underlying debt claimed by the plaintiff is not disputed, provided the defendant can establish mutual debts owed by the plaintiff that are sufficiently certain. The case reinforces that courts will be cautious in granting summary judgment where there are triable issues, particularly involving employment-related claims such as retrenchment packages and pension benefits.