MATHONSI J: The applicant
instituted proceedings against the Respondent in Case No. HC 1521/10 for
payment of the sum of US$43 085-00 on the basis that the Respondent, being a
registered employer, was obliged in terms of the National Social Security Act,
Chapter 17:04 to remit to it, national pension scheme contributions and workers
compensation fund premiums on a monthly basis but had failed to do so from May
2009 to March 2010.
The Respondent caused
an appearance to defend to be entered and filed a plea. That plea reads as follows:
''Defendant pleads to
the Plaintiff's summons and declaration as follows:-
1. Ad paragraph 2
This is not denied.
2. Ad paragraph 3-4
This is denied. The amount of US$43 085-00 is disputed. The percentage of 8% and the interest charged
is unlawful. The plaintiff is put to
strict proof the roof.
3. Ad paragraph 4
This denied (sic). Even if it is admitted that the Defendant is
indebtedness (sic) in the said amount, though it is denied, the Plaintiff
should consider practical implications of making the contributions. Defendant cannot make contributions at the
expense of paying salaries and other operating costs.
WHEREFORE, Defendant prays for
the dismissal of Plaintiff's claim.''
Believing that the Respondent had not a bona fide defence and that appearance had been entered for purposes
of delay, the Applicant filed this application for summary judgment.
It turns out that when
applicant demanded payment from the Respondent in July 2010, the Respondent,
then unrepresented, had written a letter dated 19 July 2010 in the following:
''RE: PAYMENT PLAN PROPOSAL
We hereby propose to make a
payment of $5500-00 (Five thousand and five hundred dollars) per month plus
monthly NSSA contributions on the 10th day of each month starting in
August 2010.
Through your honourable office
we do hereby apply for the waiver of interest and penalty charges on the
outstanding amount. At the moment the
company is grappling with serious financial constraints to the extend (sic) that
we are failing to pay salaries, Zimra and other statutory payments on
time. We have applied to the
Commissioner of pensions to be exempted from paying pension for the next six
(6) months until December 2010. We have stopped
28 employees since January 2010.
Hence the above payment plan
is based on the current company performance.
As management we hope our performance is going to improve as the economy
stabilises.
Yours faithfully
J. Mudangwe
Finance Manager.''
The Respondent wrote another letter to applicant's legal practitioners
on 30 July 2010 which reads in part as follows:
''RE: Deferment of payment
This letter serves to notify
your respected office that due to serious defaults by our debtors we are not
able to pay NSSA dues. We hereby promise
to pay the agreed amount by 2 August 2010.
Sorry for the convenience (sic) caused.
Regards
Joe Mudangwe.''
When no payment was
made as promised on 2 August 2010, the Respondent, through its present legal
practitioners, submitted in a letter to the Applicant's legal practitioners
that reconciliations had been made which showed that ''what is owed to yours is
US$28 584, 14,'' and went on to say ''it is not by design that our client is
not paying, but its the unfortunate challenges experienced in the nation
----.''
Of course, the
Respondent did not elaborate on how its reconciliation had reduced the amount
owed and how the figure of US$28 584, 14 was arrived at. Most importantly up to that time there was no
denial of liability. In fact much earlier
than that on 3 February 2010, the Respondent had, through J. Mudangwe, signed
an inspection sheet admitting liability for the period from April 2009 to
December 2009 in the sum of US$32 469-68. One assumes that monthly
contributions continued to accrue and were added to that agreed figure until
the time the summons was issued.
How and when this clear
and unconditional admission of liability metamorphosed to a defence to the
claim is not apparent from the papers.
There is however a good case for holding that it seemed to coincide with
the issuance of summons against the Respondent.
In light of that, can it be said that there is a bona fide defence
especially as the Respondent made an unconditional payment of US$2 000-00 well
after the summons was served?
The applicant's claim
is fairly straight forward and clear. What the Respondent has to do in order to
repel a summary judgment application has been stated in numerous
authorities. In Hales v Doverick Investments
(Pvt) Ltd 1998(2) ZLR 235 (H) at 238 D-F Malaba J (as he then was) stated:
''The test to be applied to
the defendant's affidavit is clear on the authorities. In Rex
v Rhodian Investments Trust (Pvt) Ltd
1957 R & N 723. 1957 (4) SA 631 (SR)
the phrase 'good prima facie defence
to the action' in r 66(1)(b) of the Rules of Court 1971, was interpreted by
Murray C J at p 633 G to mean:
'that the defendant must
allege facts which if he can succeed in
establishing them at the trial, would entitle him to succeed in his defence at
the trial.'
In Jena v Nechipote 1986 (1) ZLR 29 (S) GUBBAY JA (as he then was)
said at p30 D-E.
'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 success'; 'he has a plausible
case'; there is a real possibility that an injustice may be done if summary
judgment is granted'
The defendant's affidavit
should not only disclose the nature of the defence relied upon to resist
plaintiff's claim for ejectment, but must set out the material facts on which
that defence is based in a manner that is not inherently or seriously
unconvincing.''
The learned Judge went on to refer to the judgment of McNally JA in Mbayiwa v Eastern Highlands Motel (Pvt) Ltd S 139-86 at pp 4-5 where
he stated:
''--- while the defendant need
not deal exhaustively with the facts and the evidence relied on to substantiate
them 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 --- the statement of
material facts (must) be sufficiently full to persuade the court that what the
defendant has alleged, if it is proved at the trial will constitute a defence
to the plaintiff's claim.''
In casu, in its plea the Respondent merely challenges the interest
rate and the contributions due by the employer as unlawful without more. It then argues that it cannot be made to pay
the statutory dues ahead of salaries and other operating costs. The latter is simply not a legal argument as
it appeals to equity or charity. The
same applies to the opposing affidavit.
Mr Ndlovu for the
Respondent occupied himself in the heads of argument with trying to challenge
the admissibility of 2 letters he had written to the Applicant's legal practitioners
marked ''without prejudice.'' I do not
consider it necessary to decide the admissibility of those letters because the
Respondent had long admitted liability before the letters were written.
He then sought to argue
that the percentage of the contributions made to the applicant cannot be legal
because that was determined before dollarization. I did not hear Mr Ndlovu to say there was no
statutory provision for those deductions but merely that they are unfair. That cannot be a defence at all. This is particularly so in view of the fact
that the Respondent has always admitted liability. I conclude therefore that raising these
issues was an afterthought and excuse to buy time.
On the issue of costs,
I am persuaded by Mr James' submission that instead of assisting the Respondent
resolve the dispute without undue delay, the legal practitioner appears to have
been a stumbling block. It is only after
his involvement that the Respondent started reneging from its earlier promises
and conjured frivolous defences. Mr
Ndlovu maintained that stance right up to the end even as it appeared pretty obvious
he had no sustainable case. Such conduct
on the part of legal practitioners is unacceptable because, as officers of the
court, they are expected to assist the court resolve disputes.
While the extent of Mr
Ndlovu's aberration does not call for costs to be ordered de bonis propriis, legal practitioners
should be warned of the risk of such awards should they persist in frivolous
and vexatious defences at the expense of not only genuine claims but valuable
court time. This is a case which calls
for costs to be awarded on a higher scale.
In my view the
applicant's claim is unanswerable.
Accordingly I make the following order:
1. Summary judgment be and is hereby entered in favour of the Applicant
against the Respondent in the sum of US$41 085-00 together with interest thereon
at the prescribed rate from 11 April 2010 to date of payment.
2. The Respondent shall bear the costs of suit on an attorney and client
scale.
James ,Moyo-Majwabu and Nyoni, Applicant's Legal
Practitioners
Messrs Mlweli Ndlovu and Associates,
Respondent's Legal Practitioners
