MATHONSI J: The applicant instituted proceedings against the
four respondents for payment of US$38 660-05 plus interest, and an order
declaring certain immovable property belonging to the fourth respondent but
mortgaged to the applicant, specially executable and costs of suit on an
attorney and client scale.
The
respondents entered appearance to defend and this prompted the applicant to
file this summary judgment application alleging that none of the respondents
has a bona fide defence and that appearance has been entered for
dilatory purposes only. The applicant
alleges that during year 2009 it granted the first respondent a revolving loan
facility of US$50 000-00. The second and
third Respondents signed guarantees as sureties and co-principal debtors for
money advanced to the first Respondent.
As
additional security for the debt Stand 23 Bulawayo South Suburban Stands of
Stand 374 Bulawayo Township held by the fourth Respondent by Deed of Transfer
No. 1479/89 was mortgaged to the applicant.
Mortgage Bond Number 42/2009 was registered in favour of the applicant. Of the monies advanced to the first
respondent, the amount claimed is outstanding and as at 18 June 2010 the
balance stood at US$34257-61 which debt the first respondent acknowledged on
that date and agreed to a payment plan contained in an acknowledgement of debt
signed on that date.
The
applicant has also submitted a further acknowledgment of debt signed by the
second respondent on 18 June 2010 on behalf of the first respondent for the sum
of US$34257-61. A running statement of
account has been filed of record together with the in duplum schedule
showing the amount owed by the first respondent. It is for these reasons that the applicant
claims the respondents have not a bona fide defence.
An
opposing affidavit of Stella Moyo, the director of the first respondent, was
filed and nothing was filed on behalf of the other three respondents. Stella Moyo claims to be authorised “to
depose to this affidavit for the First Respondent in particular and the other
respondents in general.” No power of
attorney given to her by the other respondents has been produced.
Stella
Moyo cannot at law purport to represent the other respondents without any
written authority to that effect.
Clearly therefore there is no opposing papers filed on behalf of the
second, third and fourth Respondents. I
shall then proceed from the premise that the summary judgment application is
opposed only by the first respondent.
For
a party to succeed in opposing a summary judgment application, he must allege
facts which, if he can succeed in establishing them at the trial, such facts
would entitle that party to succeed in its defence Rex v Rhodian Investments Trust (Pvt) Ltd 1957(4) SA 631 (SR) at
633 G; Jena v Nechipote 1986 (1) ZLR 29(S) at 30D.
A
party defending an application for summary judgment 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. A defence which is
bald, vague and sketchy will not suffice: Hales
v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235(H); Mining Industry Pension Fund v Banlax and Others HB 34/11.
In
Hales v Doverick Investments (Pvt) Ltd
(supra) at 238 G and 239 A-B Malaba J (as he then was) quoting Mbayiwa v Eastern Highlands Motel (Pvt) Ltd
S 139-86 at page 4-5 said:
“----
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 (Maharaj v Barclays National Bank Ltd 1976(1) SA
418 (A) at 426D--- 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---- if the defence
is averred in a manner which appears in all the circumstances needlessly bald,
vague or sketchy that will constitute material for the court to consider in
relation to the requirement of bona fides----he must take the
court into his confidence and provide sufficient information to enable the
court to assess his defence. He must not
content himself with vague generalities and conclusory allegations not substantiated
by solid facts.”
The
problem with the opposing affidavit is that it does not substantiate whatever
defence the respondents have. While
purporting to answer to not less than 60 pages of the applicant's claim and
annexures, it is legendary by its brevity as its relevant content is less than
2 pages. While appearing to question the
interest claimed the opposing affidavit does not state what was agreed and
while admitting to owing US$34257-61, nothing is said about why consent to
judgment in that amount has not been filed.
Mr
Mazibuko, for the applicant has
relied heavily on the case of Dewera's
Farm (Pvt) Ltd and others v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368(S)
where McNally JA said at 370 B-D;
“Thus,
in the present case, had the applicants put forward an authoritative affidavit
explaining detailed errors in calculation by the bank, accompanied by a fresh
calculation showing the 'correct' amount due; and had they then consented to
judgment in the admitted amount and asked simply that the issue of the disputed
amount go to trial, I, like the learned trial judge, would have been hard put
to refuse their request, despite what might well be described as their wilful
default. But that is not what happened. The farmers did not recalculate their debt,
they did not file an accountant's affidavit setting out the 'correct' amount
due; they did not pay that amount or even consent to judgment in that amount.”
The
criticism made by the learned appeal judge in Dewera's Farm (Pvt) Ltd applies with equal force in the present
case. Either because the respondents
were being tardy or they were clutching at straws, nothing is contained in the
opposing affidavit as would influence me to refer the matter to trial.
The
respondents' case is so hopeless that their counsel Mr Majoko was left to try and salvage something from the resolution
passed by the applicant authorising Patrick Manyumbu to represent the
company. Mr Majoko argued that because that resolution was defective, it having
conflicting dates of the meeting, then the application must fail.
I
disagree. Typing errors in the
resolution cannot invalidate the representation of the applicant by its “Head
of Credit Risk.” He has stated that it
is in his capacity as such that he is authorised to depose to an
affidavit. In my view that should
suffice.
I
therefore come to the conclusion that the applicant's claim is
unanswerable.
Accordingly
I make the following order:
(1) Judgment
be and is hereby entered for the Applicant against the First, Second, Third and
Fourth Respondents, jointly and severally, the one paying, the others to be
absolved, as follows:
(a) The
respondents shall pay to the Applicant the sum of $38660-05 together with
interest thereon at 30% per annum with effect from the 4th December
2010 to date of full payment.
(b) The
Respondents shall pay to the Applicant the costs of suit on a legal
practitioner and client scale together with collection commission on the above
mentioned.
(c) It
be and is hereby declared that the immovable property belonging to the Fourth
Defendant, known as Stand 23 Bulawayo South, suburban stands of Stand 8 of
Stand 374 Bulawayo Township measuring 1 487 square metres situate in the
District of Bulawayo held under Deed of Transfer No. 1479/1989 dated 17th
April 1989 is specially executable.
Messrs. Majoko and Majoko,
respondents' legal practitioners
Messrs Calderwood, Bryce
Hendrie & Partners, applicant's legal
practitioners
