This
is an application for summary judgment.
The
respondent is a legal practitioner trading under the style of Dutiro and
Partners in Zvishavane.
Briefly,
the applicant enlisted the services of the respondent to represent her in a
matter involving her and her boyfriend. The applicant mandated the respondent
to facilitate her separation from her boyfriend and distribution of the
property that she had acquired with her boyfriend. The respondent managed to
facilitate the amicable resolution of the dispute between the applicant and her
boyfriend. Part of the settlement was that the immovable property known as Stand
Number 1109 Eastlea, Zvishavane be valued and the parties' entitlement thereto
be shared equally. It was agreed that either party can buy out the other. The
property was valued at US$40,000=. The applicant decided to pay off her
boyfriend's entitlement in the sum of US$20,000=. The applicant handed the said
amount, in cash form, to the respondent on 23 September 2009. This amount was
trust funds for onward transmission to the applicant's erstwhile boyfriend.
This
amount was receipted in the respondent's Business Account instead of the Trust Account.
This money was not banked at all.
In
the presence of the applicant, the respondent purportedly phoned a Mr Ndlovu of
Muzenda and Partners Legal Practitioners i.e. her erstwhile boyfriend's legal
practitioners. The applicant was given the impression that the money was on its
way to Muzenda and Partners Legal Practitioners. On 30 September 2009, the
applicant coincidentally met the respondent who informed her that there had
been a break-in at her offices and the sole item stolen was a cash box containing
the sum of US$20,000= that the applicant had given her. The respondent also
told her that the incident took place during the weekend of 26-27 September
2009 i.e. she had been keeping the sum of US$20,000= in a cash box in her
drawer from 23 to 26 September 2009 when it was allegedly stolen. The applicant
was naturally not satisfied with the explanation why such a large amount of
trust funds was not banked promptly, either that day or on a subsequent day.
The respondent could not explain to the applicant her failure to advise her
promptly when the money was stolen. Further, the unlawful entry was allegedly
achieved by the use of a duplicate key. Because of the turn of events, the
applicant instituted summons under HC1803/09 for the refund of the US$20,000=
plus costs of suit.
The
respondent entered an appearance to defend whilst at the same time made offers
to the applicant to repay the US$20,000=.
The
applicant did not decline the offers as such but indicated that the instalments
offered were negligible and did not reflect any seriousness to offset this
large amount. Notwithstanding these offers, to date, almost a year later, the
respondent has not repaid a single cent. This did not go down well with the
applicant who then filed this application for summary judgment.
The
respondent opposed this application.
In
the circumstances, it is trite that the respondent must show that she had a
good prima facie defence to the action – R v Rhodian Investments Trust (Pvt)
Ltd 1957 (4) SA 632 (SR)….,; Davis v
Terry 1957 R & N 392 (SR); and Pitchford Investments (Pvt) Ltd v Muzari 2005 (1) ZLR 1 (H). Put in another way,
the summary judgment may be granted when the applicant's claim is unanswerable
and based on a clear cause of action.
In
casu, the respondent made valiant
offers to settle the amount. She made a written acknowledgement of debt. From
her plea, it is clear that she is not disputing liability but seeks favourable
conditions to offset the debt. She was wrong right from the start by not
receipting the US$20,000= in the Trust Account as she was required to. She was
wrong in not banking the large amount of cash as she was required to. She did not even bother to inform the
applicant promptly of the loss of the money. The applicant, as plaintiff under
HC1803/09 has an unanswerable case against the respondent. In fact, in her oral
submissions, the respondent conceded that she does not have a defence on the
merits. All she is doing in this case is pleading poverty and seeking
favourable conditions of repayment. She explained her inability to pay and
stated that she is relying on others to do so on her behalf. Inability to pay
on the conditions set out by the applicant is not a defence on the merits.
The
respondent's appearance to defend is merely to buy time, and, as such, the
application for summary judgment is with merit. Accordingly, the application
for summary judgment is granted in the following terms:
It
is ordered that:
1.
Judgment be and is hereby entered for the plaintiff against the defendant.
2.
The defendant be and is hereby ordered to refund the sum of US$20,000= to the
plaintiff with interest thereon at 5% per annum from 23rd September
2009 to date of payment in full.
3. The defendant be and is hereby ordered to pay
costs of suit at attorney and client scale.
