MATHONSI J: The applicant instituted proceedings
against the Respondent for payment of the sum of US$3 000-00 for security
services rendered during the 3 months of April, May and June 2009 at $1 000-00
per month. The applicant also sought
payment of a further $3 000-00 in respect of payment in lieu of 3 months notice
of termination of the security agreement of the parties by the Respondent.
The Respondent entered
appearance and filed a plea raising essentially 2 defences namely that the
Respondent had been wrongly cited given that Super bake Bakeries is not a
registered company and that the claim for $3 000-00 in lieu of notice was a
claim for damages which could not be made by summary judgment.
This is now an application for
summary judgment on the basis that the Applicant's claim is unanswerable and
that appearance has been entered for dilatory purposes.
In terms
of Order 2A Rule 8C of the High Court of Zimbabwe Rules, 1971;
''Subject to this order, a person carrying on
business in a name or style other than his own name may sue or be sued in that
name or style as if it were the name of an association, and rules 8A and 8B
shall apply mutatis mutandis, to any
such proceedings.''
In casu, the Respondent entered into a written contract for security
services with the Applicant in the name of ''Superbake Bakery.'' It traded in
that name throughout. It can therefore
not argue at this stage that the entity in question does not exist. The Applicant is therefore entitled to sue
the Respondent in the name of its business.
In terms of Rule 64 an application
for summary judgment can be made supported by affidavit stating that in the
belief of the deponent there is no bona
fide defence to the action. Rule 66
allows a party against whom such application has been made to satisfy the court
that he has a good prima facie
defence to the action.
It has been stated that if the
defence is averred in a manner which appears in all material circumstances
needlessly bald, vague or sketchy, that will constitute material for the court
to consider in relation to the requirement of bona fides. Hales v Doverick
Investments (Pvt) Ltd 1998 (2) ZLR 235 at 238 G and 239 A-B.
In my view there is nothing in
the Rules that a claim for damages cannot be made by summary judgment. All the Rules require is for the applicant to
aver that there is no bona fide
defence. The damages of $3 000-00 being
claimed are easily ascertainable on the papers.
Clause 11 of the agreement between the parties provides that the agreement
could only be cancelled by 3 months written notice to the other party. The Respondent cancelled without giving that
notice thereby entitling the applicant to make a claim to be paid $3 000-00 in
lieu of notice.
I am therefore satisfied that
the Applicant's claim is unassailable.
In the result I make the following order; that
Summary
judgment be and is hereby granted in the following terms;
(a) The
Respondent is ordered to pay the Applicant the total sum of $6 000-00 together
with interest thereon at the rate of 5% per annum from 13 October 2009 to date
of payment.
(b) The
Respondent shall be the costs of suit on an attorney and client scale.
Cheda and Partners, Applicant's Legal Practitioners
Messrs Bvekwa Legal
Practice, Defendant's Legal Practitioners
