Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura and Others

The plaintiff, Ashanti Goldfields Zimbabwe Limited, sought to evict six defendants (all former employees) from residential properties they occupied in Bindura. In 2003, the plaintiff's Board of Directors resolved to dispose of employee-occupied properties. A Memorandum of Agreement dated 1 December 2003 was signed between management and the Housing Committee (employee representatives) stating that Ashanti agreed to "dispose of its housing units" to sitting tenant employees. Employees who participated signed lease agreements with provisions for monthly payments. Board minutes from May, August and December 2003 referred to "progress on the sale of residential properties" to employees. The plaintiff claimed defendants defaulted on rental payments and sought eviction. Defendants contended they had purchased the properties under sale agreements, not leases, producing payslips showing deductions labeled "rent to buy" and receipts for "payment of house." After defendants filed pleas, the plaintiff brought applications for summary judgment in all six cases, which were consolidated.

• Whether the defendants raised a prima facie defence to escape summary judgment
• Whether the agreements between the parties constituted lease agreements or agreements of sale
• What standard of proof is required of a defendant opposing an application for summary judgment
• Whether the Supreme Court decision in Ashanti Goldfields Zimbabwe Ltd v Kovi SC 7/09 was distinguishable from the present cases

The applications for summary judgment against all six defendants were dismissed with costs on the ordinary scale in favor of the defendants.

To resist an application for summary judgment, a defendant must allege facts which, if established at trial, would constitute a defence to the plaintiff's claim. The defendant need only show "a mere possibility of success," "a plausible case," "a triable issue," or that "there is a reasonable possibility that an injustice may be done if summary judgment is granted." The defendant's affidavit must disclose the nature of the defence and material facts with sufficient clarity and completeness, but need not deal exhaustively with evidence. Where documentary evidence (payslips, receipts, board minutes) supports a defence and creates factual disputes about the nature and performance of agreements, summary judgment is inappropriate and the matter should proceed to trial.

The court observed that in the case of the fifth defendant (whose wife was the former employee and had died before summons was issued), it was not competent to proceed with summary judgment in the absence of an executor who could properly advance the defence. The defendant's averments would constitute hearsay unless made in his capacity as executor. The court also noted that the third defendant's affidavit was "somewhat bald" and could have included more particulars about when, where and in what amounts payments were made, but this did not prevent him from establishing a prima facie defence. The court commented that the plaintiff should have anticipated defendants would produce receipts showing payments for house purchases given the pleas filed, and should have addressed the significance of board minutes referring to "selling houses" and receipts from the housing fund for house purchases.

This case is significant in Zimbabwean civil procedure for clarifying the standard required to resist summary judgment applications. It demonstrates that defendants need not prove their defence will succeed, but must only show a plausible defence with sufficient factual basis to create triable issues. The judgment emphasizes that courts at the summary judgment stage should not usurp the trial court's function by determining substantive legal issues. It also illustrates the importance of documentary evidence (receipts, payslips, board minutes) in establishing a prima facie defence, even when such evidence could be more detailed. The case serves as a reminder that summary judgment is inappropriate where genuine factual and legal disputes exist about the nature and performance of contractual obligations.