This is a summary judgment
application in which the applicant claims payment of the sum of US$250,000=
together with interest, collection commission and costs of suit from the five
respondents in respect of money allegedly advanced to the first respondent by
virtue of a credit facility extended to the first respondent.
In its summons and declaration, the
applicant averred that the agreement between the parties provided for an
acceptance commission at 2% per annum of the face value of each Bill accepted
by the plaintiff for the first defendant's account to be charged, interest on a
daily basis on daily cash balances at the rate of 10% per annum above the
minimum lending rate, accrued interest was to be payable monthly in arrears and
that the plaintiff would issue guarantees on behalf of the first respondent to
third parties at a guarantee commission of 2,5%....,.
After the respondents had entered
appearance to defend, the applicant launched this application for summary
judgment alleging that the respondents did not have a bona fide defence and
that appearance had been entered for purposes of delay.
To substantiate its claim, the
applicant has submitted, inter alia, the facility document, dated 13
November 2009, setting out the terms of the agreement between the parties,
acceptance documents signed on behalf of the first respondent, the document amending
the terms of the facility, including increasing the amount to US$250,000=,
which was signed on behalf of the first respondent and the relevant surety
mortgage bonds.
More importantly, acknowledgments
of indebtness, signed on behalf of the first respondent, have also been filed.
In response to a letter from the
applicant's legal practitioners, dated 11 October 2010, demanding what is
claimed in the summons, the first respondent wrote a letter dated 5 November
2010, signed by the fourth respondent, which reads, in part, as follows:
“RE: Merspin Borrowings with Interfin Merchant Bank of Zimbabwe
Limited
We are in respect of your letter
dated 11 October 2010 and would like to propose the following payment plan;
|
Date
|
30
November 2010
|
31
December 2010
|
31
January 2011
|
|
Amount
|
US$100,000=
|
US$100,000=
|
US$147,855=59
|
We hope you will find the above
payment plan acceptable to yourselves.
Yours faithfully
For and on behalf of Merspin
Limited
(signed)
Mr D. Lupepe
Executive Chairman”
On the same date, another letter
was written by the fourth respondent, on behalf of the first respondent,
accepting liability to pay collection commission but suggesting that it be
pegged at 5% plus vat. Needless to say that although the proposal was accepted
by the applicant no payment was made. Instead, more written proposals to settle
the debt were made which were not honoured either.
It is against that background that
the respondents' opposition to the claim must be viewed.
In Hales v Doverick Investments
(Pvt) Ltd 1998 (2) ZLR 235…, MALABA J…, set out what a respondent in an
application for summary judgment must show in order to successfully contest the
application as follows;
“…, 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.”
In their opposing affidavits, the
respondents have not said much about the claim beyond stating that they have a bona
fide defence. In the affidavit, filed on behalf of the first respondent, it
is accepted the “first respondent did indeed draw down on the money set out
therein.” However, what seems to be in contention is the rate of interest
levied and the claim for both attorney and client costs and collection charges.
Unfortunately, the respondents have
not set out what the correct interest should be and they have not recalculated
their indebtedness to show their bona fides. See Dewera's Farm (Pvt) Ltd
and Others v Zimbabwe Banking Corporation Limited 1998 (1) ZLR 368 (S)…,. Their
challenge therefore remains a bare denial which certainly does not meet the set
standard to repel a summary judgment application….,.
I conclude that the applicant's
claim is unassailable and that appearance has indeed been entered for purposes
of delay. Accordingly, I make the following order; that
(1) Judgment be and is hereby
entered against the First, Second, Third, Fourth and Fifth Respondents, jointly
and severally, the one paying, the others to be absolved, as follows:
(a) That the Respondents pay to the
Applicant the sum of US$250,000=, together with interest thereon at 25% per
annum calculated from the 20th May 2011 to date of full payment.
(b) That the Respondents pay to the
Applicant accrued interest in the sum of $130,484=59 together with further
interest thereon at 25% per annum calculated from the 20th May 2011
to date of full payment.
(c) …,.
(d) …,.
(e) That certain piece of land
situate in the district of Bulawayo measuring 1,483 square metres, being the
remainder of Subdivision A of Stand 825 Bulawayo Township, registered in the
name of the Second Respondent under Deed of Transfer No.2992/2001, be and is
hereby declared specially executable.
(f) That certain piece of land
situate in the District of Bulawayo measuring 7,281 square metres, being an
undivided 1,14% share, being Share No.209, in Stand 12151 Ascot Township of
Stand 11301 Bulawayo Township of Bulawayo Turf Club, held by the Third Respondent
under Deed of Transfer No.4128/1997, be and is hereby declared specially
executable.
(g)
That certain piece of land situate in the District of Bulawayo, being Stand 295
Matsheumhlope Township 7 of Stand 186A Matsheumhlope, measuring 4,047 square metres
and held by the Fifth Respondent under Deed of Transfer No.842/82 be and is
hereby declared specially executable.
