Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo

The applicant mine company sought summary judgment to evict the respondent, a former employee, from company housing at No. 251 Wary Avenue, Bindura. The parties had entered into arrangements in 2003 whereby the applicant anticipated mine closure and engaged with employees to dispose of company houses. A Memorandum of Agreement was signed on 1 December 2003 agreeing to dispose of housing units to sitting tenant employees. Subsequently, on 12 December 2003, a "Memorandum of Agreement of Lease" was concluded providing for monthly payments described as rent, with an option to purchase after five years and rental payments to be deducted from the purchase price. The respondent's payslips reflected deductions itemized as "Rent to Buy" and "Bal. Rent to Buy." The applicant contended this was a lease agreement, while the respondent argued it was a sale agreement (or finance lease) and that he had paid off the full purchase price, thus the applicant could not evict him.

• Whether the arrangement between the parties constituted a lease agreement or a sale agreement
• Whether the respondent had a bona fide defence to the claim for ejectment warranting unconditional leave to defend
• Whether an appeal lies from an order refusing summary judgment and granting unconditional leave to defend pursuant to section 43(2)(b) of the High Court Act [Cap 7:06]
• The proper interpretation of section 43(2)(b) and section 43(2)(d) of the High Court Act regarding appealability of summary judgment refusals

The application for summary judgment was dismissed unconditionally on 29 March 2011. The subsequent application for leave to appeal dated 4 May 2011 was also dismissed. The respondent was granted unconditional leave to defend the action. The court provided written reasons despite noting that no appeal could lie from such an order under the applicable legislation.

Section 43(2)(b) of the High Court Act [Cap 7:06] expressly and unambiguously prohibits any appeal from an order of a judge refusing an application for summary judgment and giving unconditional leave to defend an action. This prohibition is absolute and cannot be overridden by section 43(2)(d), which allows appeals from interlocutory orders with leave. Even the Supreme Court lacks jurisdiction to grant leave to appeal against such an order. A respondent should be granted unconditional leave to defend where he has raised a bona fide triable defence, particularly where similar facts have been distinguished in prior judgments and the legal practitioner seeking summary judgment was aware or ought to have been aware of such precedents establishing an arguable defence.

The court observed that the circumstances surrounding the housing disposal arrangement were "somewhat queer," noting the contradictory nature of signing both a Memorandum of Agreement for disposal/sale of houses and subsequently a "Memorandum of Agreement of Lease" with options to purchase. The court noted that this was "one of scores of similar cases" involving ex-employees whom the applicant was seeking to evict from company houses on the same basis. The court remarked that the applicant's legal practitioner "was accordingly trying a long shot in the dark" given that he had represented the same client in substantially similar matters where the High Court had found in favor of the employees, and those matters were still pending appeal at the Supreme Court. The court expressed some criticism of the legal practitioner for launching the summary judgment application despite being aware of the precedents establishing an arguable defence, suggesting this was a futile endeavor.

This case is significant for reaffirming the literal interpretation of section 43(2)(b) of the High Court Act [Cap 7:06] (and its Zimbabwean equivalent), which categorically prohibits appeals from orders refusing summary judgment where unconditional leave to defend is granted. The decision emphasizes that such prohibition is absolute and cannot be circumvented even by seeking leave from the Supreme Court. The case also illustrates the application of summary judgment principles, particularly that summary judgment should be refused where the defendant has raised a bona fide and triable defence, even where there may be conflicting case law on similar facts. It demonstrates judicial economy by discouraging frivolous summary judgment applications where the applicant is aware of arguable defences based on existing jurisprudence.