GOWORA J: On 7 April 2010 the
plaintiff herein issued summons against the defendants, jointly and severally
claiming an amount of USD$364 434-00. The defendants duly entered appearance to
defend the summons and filed a plea in their defence. The plaintiff has now
approached this court for an order for summary judgment in the amount claimed
on the basis that the defendants do not have a defence to the claim and that
they have merely entered appearance for purposes of delay.
It is contended on behalf of the plaintiff
that its claim is clearly unarguable both in law and in fact and that
consequently summary judgment should be granted as prayed. It is a correct
statement of the law as argued by counsel for the plaintiff that the court will
grant summary judgment in cases where the applicant's claim is clearly
unanswerable and the defendant has no bona
fide defence and his entry of appearance to defend is for purposes of
delay.
However, in order to defeat a claim
for summary judgment, all a defendant has to show is that there is a mere
possibility of his defence succeeding or that there is a reasonable possibility
that an injustice may occasion if summary judgment were granted against
him.
As to the plaintiff's claim, in the
declaration it is averred that during December 2009, the plaintiff appointed
the first and second defendants as its agents to market and sell bulk petroleum
products on its behalf to various customers. In terms of the agency agreement,
the defendants would source for the customers and would then request the
plaintiff to effect delivery to the specified customers. The defendants would
in turn request the customers to pay the full purchase price into the
plaintiff's account within fourteen (14) days of delivery of the produce. Upon
receipt of the purchase price the plaintiff would pay to the defendants
commission in terms of the agreement. During December 2009 to March 2010 the
defendants effected sales of petroleum products totalling USD635 102-60. This
much is admitted by the defendants in their plea filed of record on 14 May
2010. What is at issue is the contention by the plaintiff in the declaration
that the defendants were paid or collected the sum of USD635 102-60 from
customers and have failed to account for the same and further that they have,
in the process, converted the sum of USD364 434-00 to their own use.
The defendants have filed a plea and
an opposing affidavit in which they set out their defence to the claim for
payment of USD364 434 by the plaintiff. A warned and cautioned statement
obtained by the police from the first defendant in answer to an allegation of
fraud paid against him by the plaintiff arsing out of the agency agreement is
also part of this record.
In their plea, the defendants deny
that they collected various sums of money from the customers as alleged by the
plaintiff. They allege in the plea that all the customers deposited money into
the plaintiff's account as was required by the agency agreement between the
parties. They therefore deny in the plea being indebted to the plaintiff in the
sum of USD364 434-00.
In the opposing affidavit filed in
answer to the application for summary judgment the defendants have adopted the
following position. They admit that the claim arises from an agency agreement.
They admit that in terms of the agency agreement they undertook to mistrust and
cause the customers to pay into the plaintiff's account the full purchase price
within fourteen days of delivery of the products. They admit further that upon
receipt of the full payment the plaintiff would pay a commission. They admit as
well that between 28 December 2009 and 18 March 2010 they effected sales to
various customers and more importantly they admit that the total amount due for
sales is USD364 434-00.
They, however, deny that they collected
USD 364 434-00 from customers and converted it to their own use. They aver that
the customers did not place them in funds in respect of the sum of USD 364
434-00. They state that the said sum was due and owing to the plaintiff upon
the customers having remitted the sums to themselves. They admit that the
plaintiff made demand of the said sum and that a letter was then addressed to
the plaintiff's legal practitioners by their own legal practitioners on their
instruction. They said that when the letter was written it was their
anticipation that at least USD 125000 would have been remitted by various
customers as at 31 March 2010. They further contend that efforts to recover the
money from those customers were then abated by the instigation of the claim by
the plaintiff and that the customers did not want to pay money until the legal
wrangle had been concluded for fear of being entangled therein.
In the warned and cautioned
statement, the first defendant departed from the agency agreement. He claimed
that he was the Managing Director of Conview and that his company had never
sold fuel on behalf of the plaintiff. He stated that the plaintiff had supplied
Conview with fuel, which the latter, in turn sold to its own clients. He stated
that Conview owed money to the plaintiff and that the plaintiff would be paid
once Conview received payment from its clients. The amount mentioned in the
preamble to the warned cautioned statement and which therefore the first
defendant was owing was the sum of USD 364 434-81.
Lastly I come to the letter I
referred to above. The letter dated 24 March 2010 was addressed to the
plaintiff's legal practitioners by the defendant's current legal practitioners.
The pertinent portion of the letter reads as follows:-
“We refer to the meeting between the
writer and your Mr Moyo this morning (24 March 2010)
Our client refutes your clients'
claim that ours is indebted to yours in the sum of US$364 434-00 but however,
insists that it is liable to remit US$334 259-00 to your client broken down as
follows:-
Outstanding amount 364
434-00
Commission @ 0,025/litre 25 000-00
for 1000 000 litres sold
local fuel transportation
1 500-00
charge for 6 loads storage and
security for
110 000 litresat Red Oil and
Graniteside 1 100-00
Pumping costs for 26 trucks 2 600-00
Less total expenses (30
175-00)
Amount outstanding
334 259-00_
We are instructed that a payment in
he sum of US$125 000 will be remitted to your offices on or before close of
business on 1 April 2010.
As regards security for the debt our
client is identifying suitable property that is commensurate with the balance
upon the initial remittance of US$125 000.
In light of the negotiations bona fide at hand, we kindly request you
to impress upon your client to hold in abeyance any intended criminal
prosecution for the recovery of the debt. Further, we will be obliged if your
client may duly dispel any misapprehensions that our client's customers may now
have against it, bearing in mind the conduct of your client liasing with
several of our client's customers in a negative manner”
The
plaintiff has submitted that in order to succeed in defeating the claim for
summary judgment a defendant should aver facts which if proved at the trial
would entitle him to succeed in this defence or at the very least put before
the court a prima facie defence. The
defendants should raise what is normally termed a 'triable issue'. In Brietenbach v Fiat SA (EDms) Bpk 1976(2)
SA 226 the onus and degree of particularity required of a defendant in an
application for summary were defined as follows:-
“A literal reading of that
requirement would impose upon a defendant the duty of setting out in his
affidavit the full details of all the evidence that he proposes to rely upon in
resisting the plaintiff's claim at trial. It is inconceivable, however, that
the draftsman of the Rule intended to place that burden upon a defendant. I
respectfully agree, subject to one addition, with the suggestion by MILLER J,
in Shepstone v Shepstone 1974 (2) SA 462 (N) at pp 466-467, that the word
'fully' should not be given its literal meaning in Rule 32 (3), and that no more
is called for than this: that the
statement of material facts be
sufficiently full to persuade the court that what the defendant has alleged if
proved at the trial will constitute a defence to the plaintiff's claim. What I
would add, however, is that if defence is averred in a manner which appears in
all the circumstances to be needlessly bald vague or sketchy that will
constitute material for the Court to consider in relation to the requirement of
bona fides
The
defendants have contended that the plaintiff's claim is not unanswerable. In Pildifond Investment P/L v Muzani
2005(1) ZLR 1 at 3G-4A MAKARAU J (as she then was) stated:
“The unstated presumption in rr
64(1) and 66(b) cited above, is that the plaintiff's claim on its own must be
clear. It must not be susceptible to
exceptions on the basis of vagueness and it must be such action as the court
may grant judgment upon in the absence of a good and bona fide defence. It must reveal a clean and competent cause of
action. Although the emphasis on the rule is on the defence proffered by the
defendant the rules must be read as requiring the plaintiff's claim itself to
be unanswerable and based on a clean cause of action”.
Does
the plaintiff's claim in casu meet
the requirements set out in the authority referred to above? The plaintiff has
claimed the sum of USD364 434 based on an agency agreement. The defendants
agree that an agency agreement exists between the parties. They admit that they
sold fuel in terms of the agency agreement. They agree that an amount of USD364
434 was not remitted to the plaintiff. The reasons for the non payment will be
considered by me when I deal with the defence being proffered by the
defendants. Despite the attempt by the defendants to qualify the contents
thereof in the opposing affidavit, it is clear that the defendants
unequivocally accepted that the amount in dispute had not been remitted to the
plaintiff. The defendants undertook to remit this amount to the plaintiff less
an amount being claimed by them for commission and costs of delivery and pump
costs. I accept the submission by counsel for the plaintiff that the plea filed
of record is so unreliable that it cannot and should not be taken as a proper
plea. Given the contents of the letter, the plea, the opposing affidavit and
the warned and cautioned statement, it is in my view an abuse of court process
for the defendants to seek to even argue that this application should be
dismissed on the grounds that the plaintiff's claim is not clear and
unanswerable. It is clear and it is unanswerable.
On
the other hand, the defendants have been inconsistent in their defence. In the
plea they deny that they collected the money. They said it was yet to be paid
by their customers. In terms of the agency agreement the defendants were
obliged to require the customers to deposit the monies into the plaintiff's
account. In the letter they do not deny that the money is owing to the
plaintiff and actually commit themselves to paying a portion to the plaintiff
by the 1st of April 2010. The letter in my view constitutes a clear
and unequivocal admission of liability on their part to remit to the plaintiff
the sum of $334 259-00.
They
have in my view failed to place facts before the court that establish a
possibility of success of their defence at the trial. Given the circumstances
obtaining in this case, it would be difficult if not impossible for them to
place before the court facts showing that they have a plausible defence to the
plaintiff's claim. They have not shown that there are facts that would lead me
to conclude that there is a triable issue. In the event I find that the
plaintiff's claim is clear and unanswerable.
Mr Takaindisa who did not settle the
heads of argument, properly in my view conceded that there was no defence to
the plaintiff's claim for summary judgment. He conceded that admissions had
been made and I think the concessions were properly made. Counsel for the
defendants also, conceded properly that the plaintiff had put forward a case
which the defendants had not been able to oppose.
It
remains for me to deal with the issue regarding the retention by the defendants
of monies constituting commission and operating costs. It is common cause that
they defendants were the plaintiff's agents for the sale of the fuel and that
for acting and as such they were entitled to a commission. The plaintiff has
contended that they are not entitled to receive a commission as they breached
the terms of the agency agreement between the parties.
The terms of the contract were set
out clearly in the declaration. The defendants would cause the customers to
deposit the purchase price of the fuels into the plaintiff's account and the
defendant, upon receiving full payment would then pay out a commission to the
defendants. It seems that the defendants have attempted in these proceedings,
to alter the terms upon which the parties were conducting business with each
other.
The plaintiff on the other hand has
in heads of argument filed in these proceedings submitted that the defendants are
no longer entitled to claim a commission from the contract. As authority for
this Mr Moyo referred to Duffet v Lurie Bros 1923 C.P.D 473. At p
475 BENJAMIN J said:
“It is well established that where
an agent has acted improperly in the performance of his duty towards his
principal he shall forfeit any remuneration or commission to which he would
otherwise have been entitled if his improper conduct is in connection with the duty he had to perform”.
As this issue arose for the first
time in the heads of argument, there are no facts on the record as to what
improper conduct is being attributed to the defendants. When the plaintiff
issued summons for the payment to it of sums due under the contract it was
aware that the defendants had not performed in terms of the contract. It should
at that juncture have as part of its claim included an order for the denial to
the defendants of any sums that may have been due by way of commission. It
chose not to do so. Equally, when it applied for summary it could have in the
order, sought that the defendant be deprived of the commission on the basis of
the alleged breach. Again it chose not to do so. The plaintiff has now prayed
in the heads of argument that I find that the defendants have acted improperly
in the conduct of their agency duty to their principal. To give effect to that
prayer would require me to make a factual finding as to what that improper
conduct was and yet no facts have been placed before me to that effect. It
appears to me that the plaintiff is attempting to establish a cause of action
in its heads of argument. Clearly that would be un-procedural. Added to this is
the fact that the defendants themselves were never called upon to answer to a
charge of improper conduct on their part as to disentitle them to the
commission. I must refuse to accede to this request.
The
claim for summary judgment succeeds and I make an order in the following terms:
IT IS ORDERED THAT
- Summary
judgment be and is hereby granted in favour of the plaintiff
2 The
defendants shall, jointly and severally, the one paying, the other to be absolved, pay to the plaintiff the sum of
US$364 434 together with interest
thereon at the prescribed rate with
effect from 19 May 2010 to date of payment in full
3. The
defendants shall pay, jointly and severally, the one paying the other to be
absolved, the plaintiff's costs of suit.
Kantor & Immerman, plaintiff's legal practitioners
Musarira
Law Chambers, defendants' legal
practitioners
