CHEDA
J: This is an application for a summary judgment.
Applicant is a duly registered commercial
Bank carrying a business under the name and style of Agricultural Development
Bank of Zimbabwe t/a Agribank.
First and second respondents are farmers
carrying on business from sub-division 4 of Lot 4 of Sherwood, Kwekwe.
On or about the 27th October
2009 at the special instance and request of first and second respondents,
applicant advanced a sum of $52827-00 to the respondents under the following
terms and conditions:
(1)
the advanced loan was a sum of $52827;
(2)
it was to be used as working capital for farming operations;
(3)
the loan was to be repaid on or before the 30th June 2012;
(4)
the prescribed rate of interest was to be paid only in the event of
respondents' failure to repay the said loan in full by the 30th June
2012;
(5)
the loan was to be secured by a Mortgage Bond in favour of applicant over a
certain piece of land situate over stand No. 697 Ruwa Township of Stand 659
Ruwa Township situate in the district of Goromonzi held by defendants under
Deed Transfer No. 3198/96 dated 7 May 1996.
(6)
In the event that the respondents breached the agreement and/or failed to pay
the instalment due, the whole amount outstanding would immediately become due
and payable. In that event the respondents would be liable to pay the
costs of recovering the amounts on an attorney and client scale as well as
collection commission.
In compliance with the loan agreement Respondents agreed that,
Stand No. 697 Ruwa Township of Stand 659 Ruwa Township situate in the district
of Goromonzi held by Respondents under Deed of Transfer No. 3198/96 dated 7 May
1997 was specially hypothecated by a Note of Hand from Applicant;
Respondents have since breached the loan agreement. On the 29th
April applicant
issued out
summons against respondent which summons they defended on the 17th
May 2011.
It is that
defence which has led to the present application.
Respondents opposed the application. The basis of the opposition is that
their
failure
to repay the loan was due to the fact that one of the integral parties, that is
the Grain Marketing Board [hereinafter referred to as “GMB”] was to avail the
inputs which should be purchased through funds from applicant. It is
their further assertion that GMB failed to avail inputs timeously resulting in
respondent's failure to purchase the inputs in time for that cropping season,
consequently the 2009 and 2010 cropping season was a complete write-off.
The crux of respondent's argument is that GMB failed to timeously avail its
inputs to
them. This indeed may be a valid argument, but, what comes into sharp
focus is
whether or not
GMB was part of the loan agreement. If it was, then, respondents should
have
applied for
their joinder on the basis of either financial or proprietary interest, such as
joint owners, joint contractors or partners, see Morgan and another v
Salisbury Municipality 1935AD 167 at 171 and Amalgamated Engineering
Union v Minister of Labour
1949 (3) SA 637
AD at 656-57.
Upon perusal of the loan agreement, GMB does not feature, therefore, it is
clear that it was not part of the agreement. Indeed Clause 2 of the
agreement refers to the purpose of the purchase for the facility, being solely
for the procurement of agricultural inputs.
However, there is no mention, reference or
direction to purchase the said inputs from a specific supplier, in particular
GMB. In the absence of such reference or direction, it is only reasonable
to conclude that respondents were at liberty to purchase them from any supplier
as the loan had been advanced to them. Their failure to purchase the
inputs from any supplier when they had resources to do so solely, firmly and
securely rests with them.
The purpose of a summary judgment procedure is designed to enable a plaintiff
whose claim falls within a certain class of claims to obtain judgment without
the necessity of going to trial inspite of the fact that the defendant has
filed a defence, see Herbstein and Van Winsen, The Civil practice
of the Superior courts in SA 3rd ed. 1979. P302. The
remedy, therefore, is an extra ordinary one and very stringent as it does not
permit the respondent to successfully raise its defence on the basis that
plaintiff's case would have been in the opinion of the court unanswerable see Schoeman
v New Mark 1919 CPD 55; Maharaj v Barclays National Bank Ltd 1976 (1) 418
(AD) and Breitenbach v Fiat SA (Edms) BPK 1976 (2) SA 226 (T).
Applicant has proved that indeed there exists a loan agreement between itself
and respondents. Further that, respondents have breached a major and
material condition of the contract namely by its failure to pay back the loan
by the agreed date. Respondents on the other hand, not in so many words,
admit that they failed to pay back the loan, but, however, have sought to
justify their failure on the basis of their inability to purchase their
agricultural inputs from GMB. This is argument can not be legally
sustained. What respondents have failed to come to terms with is that the
issue of GMB was not a condition precedent to their own fulfilment of their
obligation towards applicant.
In any case any variation, amendment
or alteration of the loan agreement was to be in accordance with the said
clause which further clearly sets out the procedure to be adopted to effect
that change. This fact makes applicant's case an unanswerable one.
I entertain no reasonable doubt, whatsoever, that applicant's claim is properly
before the court and is above all clear and in that regard unanswerable by the
respondents. Respondents' defence that applicant was aware that they
failed to access agricultural inputs timeously thereby rendering their
inability to pay back the loan is unconvincing and not valid at law. It
is, therefore, not bona fide and should fail.
In conclusion the following order is made:
Order
(a)
Respondents shall pay of the sum of US$33, 127.41 to applicant;
(b)
pay interest on the said sum at the prescribed rate calculated from the 1st
of July 2011 to the date of payment.
(c)
that the piece of land Stand No. 697 Ruwa Township of Stand 659 Ruwa Township
situate in the district of Goromonzi, held by the 1st Respondent
under Deed of Transfer NO. 3198/96 dated the 7th May 1996 be and is
hereby declared to be specially executable.
(d)
that respondents shall pay the cost of suit on an attorney client scale plus
collection
commission.
Coghlan and
Welsh, applicant's legal practitioners
Shenje
and company, respondents' legal practitioners
